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29Oct09

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Sentencing Judgement in R. c. Munyaneza

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R. c. Munyaneza
2009 QCCS 4865

SUPERIOR COURT
CRIMINAL DIVISION

CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL

No.: 500-73-002500-052

DATE: October 29, 2009

THE HONOURABLE ANDRÉ DENIS, J.S.C., PRESIDING

HER MAJESTY THE QUEEN
Prosecutrix
v.
DÉSIRÉ MUNYANEZA
Accused

SENTENCING JUDGMENT

I. JUDGMENT ON CONVICTION

[1] On May 22, 2009, I found the accused guilty on seven counts (the indictment is appended to the judgment) of having, between April 1 and July 31, 1994, in the Prefecture of Butare, Rwanda:

    a) committed the indictable offence of genocide;
    b) committed the indictable offence of a crime against humanity;
    c) committed the indictable offence of a war crime.

[2] In April 1994, in Rwanda, and for the facts that concern us, in Butare, an organized plan existed at the highest level of government to destroy the Tutsi ethnic group, a minority ethnic group in the Rwandan population.

[3] The evidence showed that the accused, an educated and privileged son of one of Butare's established middle-class families, was at the forefront of the genocide movement.

[4] The accused committed the crime of genocide by intentionally killing many Tutsis, a clearly identifiable group of people in the population, seriously wounding many others, causing bodily and mental harm to members of this ethnic group, raping many Tutsi women, and generally treating Tutsi people in an inhumane and degrading manner.

[5] The accused committed a crime against humanity by intentionally killing many Tutsis, a clearly identifiable group of people in the civilian population of Butare and surrounding areas, knowing that these acts were part of a widespread and systematic attack supported and encouraged by the government, the army, the Interahamwe militia, and the local elite to which he belonged.

[6] In addition, he committed numerous acts of sexual violence against Tutsis.

[7] While an armed national conflict raged in Rwanda, the accused committed a war crime by intentionally killing dozens of persons in Butare and the surrounding areas who were not participating in the conflict.

[8] Finally, in the same circumstances, he looted the homes and businesses of persons who had nothing to do with the armed conflict.

II. THE LAW

[9] The accused was judged under the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24 (the "Act").

[10] This was the first case heard under this Act in Canada and there is no Canadian case law for either the conviction or the sentencing.

[11] Sections 6 and 15 of the Act state:

    6(1) Every person who, either before or after the coming into force of this section, commits outside Canada:

      (a) genocide,
      (b) crimes against humanity,
      (c) war crimes,

    is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

    (1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence.

    (2) Every person who commits an offence under subsection (1) or (1.1)

      (a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and
      (b) is liable to imprisonment for life, in any other case.

    …

    15(1) The following sentence shall be pronounced against a person who is to be sentenced to imprisonment for life for an offence under section 4 or 6:

      (a) imprisonment for life without eligibility for parole until the person has served 25 years of the sentence, if a planned and deliberate killing forms the basis of the offence;
      (b) imprisonment for life without eligibility for parole until the person has served 25 years of the sentence, if an intentional killing that is not planned and deliberate forms the basis of the offence, and:
        (i) the person has previously been convicted of an offence under section 4 or 6 that had, as its basis, an intentional killing, whether or not it was planned and deliberate, or
        (ii) the person has previously been convicted of culpable homicide that is murder, however described in the Criminal Code;
      (c) imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence or any greater number of years, not being more than 25, that has been substituted for it under section 745.4 of the Criminal Code, if an intentional killing that is not planned and deliberate forms the basis of the offence; and
      (d) imprisonment for life with normal eligibility for parole, in any other case.

    (1.1) The sentence pronounced against a person who is to be sentenced to imprisonment for life for an offence under section 5 or 7 shall be imprisonment for life with normal eligibility for parole.

    (2) Sections 745.1 to 746.1 of the Criminal Code apply, with any modifications that the circumstances require, to a sentence of life imprisonment imposed under this Act, and, for the purpose of applying those provisions,

      (a) a reference in sections 745.1, 745.3, 745.5 and 746.1 of the Criminal Code to first degree murder is deemed to be a reference to an offence under section 4 or 6 of this Act when a planned and deliberate killing forms the basis of the offence;
      (b) a reference in sections 745.1 to 745.5 and 746.1 of the Criminal Code to second degree murder is deemed to be a reference to an offence under section 4 or 6 of this Act when an intentional killing that is not planned and deliberate forms the basis of the offence;
      (c) a reference in sections 745.4 and 746 of the Criminal Code to section 745 of that Act is deemed to be a reference to subsection (1) or (1.1) of this section;
      (d) a reference in section 745.6 of the Criminal Code to the province in which a conviction took place is deemed, in respect of a conviction that took place outside Canada, to be a reference to the province in which the offender is incarcerated when the offender makes an application under that section; and
      (e) a reference in section 745.6 of the Criminal Code to murder is deemed to be a reference to an offence under section 4 or 6 of this Act when an intentional killing forms the basis of the offence.

    (3) For the purpose of Part XXIII of the Criminal Code, the sentence of imprisonment for life prescribed by sections 4 and 6 is a minimum punishment when an intentional killing forms the basis of the offence.

    (Emphasis added.)

[12] The Canadian Criminal Code has codified the principles of criminal sentencing:

    PURPOSE AND PRINCIPLES

    718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

      (a) to denounce unlawful conduct;
      (b) to deter the offender and other persons from committing offences;
      (c) to separate offenders from society, where necessary;
      (d) to assist in rehabilitating offenders;
      (e) to provide reparations for harm done to victims or to the community; and
      (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

    718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

    718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

    718.2 A court that imposes a sentence shall also take into consideration the following principles:

      (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
        (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
        (ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,
        (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
        (iii)evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
        (iv)evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
        (v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances;
      (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
      (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
      (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
      (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

III. POSITIONS OF THE PARTIES

A) Prosecution

[13] The Crown submits that the Court is bound by ss. 6(1) and (2)(a) of the Act, which call for imprisonment for life for counts 1, 3, and 5 of the indictment (intentional killing in the context of genocide, crimes against humanity or war crimes).

[14] It adds that under s. 15(1)(a) of the Act, the accused is not eligible for parole until he has served at least twenty-five years of the sentence for a planned killing.

[15] As for counts 2, 4 and 6, ss. 6(1) and (2)(b) of the Act provide that the accused is liable to imprisonment for life (genocide, crimes against humanity or war crimes).

[16] Finally, concerning count 7 relating to looting, the Crown calls for a sentence of ten years' imprisonment.

B) Defence

[17] The defence called no witnesses and presented brief arguments, given the appeal against the conviction. It did not plead any mitigating circumstances.

[81] The defence took note of the judgment of May 22, 2009, under appeal, and refused to engage in a debate about the facts since it would be asking a higher court to overturn the judgment.

[19] However, it pleads that s. 15(1)(c) of the Act applies since, concerning counts 1, 3 and 5, the killings of which the accused was convicted were not planned and deliberate.

[20] The sentence should therefore be life imprisonment and the Court should set the period before eligibility for parole at between ten and twenty-five years, pursuant to s. 745.4 of the Criminal Code, as is the case for second degree murder.

[21] The Court acknowledges, however, that given the judgment on the guilt of the accused, on appeal, the sentence should be closer to twenty-five years than to ten.

[22] Finally, it pleads that a sentence of ten years for count 7, looting, is too harsh, but from a practical point of view, this discussion is moot.

IV. DISCUSSION

4.1 Counts 1, 3, and 5

[23] In the judgment of May 22, 2009, I found the accused guilty of intentional killing in the context of genocide, crimes against humanity, and war crimes.

[24] Sections 6(1) and (2)(a) supra apply and the accused must be sentenced to life imprisonment. Subject to the appeal of his conviction, the two parties agree on this sentence.

[25] It remains to be determined whether these killings were planned and deliberate within the meaning of s. 15(1)(a) of the Act. If so, the accused cannot be paroled until he has served at least twenty-five years of the sentence.

[26] The judgment of May 22, 2009, in particular paragraphs 1941 to 1971 and paragraphs 2056 to 2089, tolerates no ambiguity on this point.

[27] Without repeating all the details found in these paragraphs, suffice it to say that:

    (a) In Rwanda, and specifically in Butare, beginning on April 19,1994, there was a plan to destroy the Tutsi ethnic group;
    (b) Through his resolve and social status, the accused participated actively in the plan as Interahamwe leader and as a member of the local elite who implemented the elements of what was to become genocide;
    (c) In a planned and deliberate manner, the accused, with the specific intention of destroying the Tutsi ethnic group in Butare, killed dozens of people, took part in the killing of many others, and caused serious bodily and mental harm to Tutsis;
    (d) These killings were planned and deliberate and took place over a period of several weeks.

[28] Given these proven facts, the Court is required by the Act to sentence the accused to life imprisonment without eligibility for parole until he has fully served the twenty-five years of the sentence for each of the counts 1, 3, and 5.

4.2 Counts 2, 4 and 6

[29] In the judgment of May 22, 2009, I found the accused guilty of having:

    a) caused serious bodily or mental harm to members of an identifiable group of people, namely, the Tutsi, with the intention of destroying this group, in whole or in part, constituting the indictable offence of genocide (count 2);
    b) committed sexual violence against members of an identifiable group of people, namely, the Tutsi, knowing that the said sexual violence was part of a widespread and systematic attack against this group of the civilian population, constituting a crime against humanity (count 4);
    c) during an armed conflict between the Rwandan Armed Forces and the Rwandan Patriotic Front, committed sexual violence against the civilian population, constituting a war crime (count 6).

[30] For each of these offences, ss. 6(1) and (2)(b) provide that the accused is liable to imprisonment for life.

[31] I am therefore imposing such sentence for each count and, under s. 743.6 of the Criminal Code, I am setting a ten-year term of imprisonment to be served in full before the accused may be eligible for parole.

[32] I will explain later in the judgment about how this time period was set.

4.3 Count 7

[33] In the judgment dated May 22, 2009, I found the accused guilty, during the previously cited armed conflict in Rwanda, of looting private property, thereby committing a war crime.

[34] Under ss. 6(1) and (2)(b), this indictable offence shall be punishable by life imprisonment.

[35] As I will discuss later in the judgment, this indictable offence is nevertheless not as serious as the other six offences, and I sentence the accused to the time served in custody to date.

[36] The accused was arrested on October 19, 2005, four years ago.

[37] According to Canadian case law, the time served in pre-sentencing custody is customarily doubled.

[38] The accused is therefore presumed to have been imprisoned for the past eight years (with this legal fiction not applying to counts 1, 3 and 5).

[39] As contemptible as the offence of looting is from any angle, a sentence of eight years' imprisonment is sufficient upon consideration of all the circumstances.

4.4 Firearms

[40] Section 109 of the Canadian Criminal Code requires that the Court prohibit the accused from possessing firearms for ten years after his release, and for life in the case of prohibited firearms.

[41] Such a prohibition order forms part of the conclusion of this judgment.

[42] Section 109(2) of the Criminal Code reads as follows:

    109(2) Duration of prohibition order - first offence

    An order made under subsection (1) shall, in the case of a first conviction or discharge from the offence to which the order relates, prohibit the person from possessing

    a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that

      (i) begins on the day on which the order is made, and
      (ii) ends not earlier than ten years after the person's release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person's conviction for or discharge from the offence; and

    b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

V. SENTENCE

[43] If the defence was right and s. 15(1)(c) applied because the killings committed by the accused were not planned and deliberate, the Court would set twenty-five years' imprisonment as the time to be served by the accused before he would be eligible for parole for the reasons set out below.

[44] The principles of sentencing set out in s. 718 of the Canadian Criminal Code provides, inter alia, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[45] As we have seen, the accused did not raise any mitigating factors, and his witnesses often denied that there had been genocide.

[46] We know, however, that denying genocide is tantamount to killing the victims a second time.

[47] Albert Camus said that [translation] "To call things by incorrect names is to add to the world's misery."

[48] No matter how often it is said, there is no greater crime than that of genocide, a crime against humanity and a war crime, which nonetheless still occurs today.

[49] In the 20th century alone, the international community recognized the genocides of the Hereros in Namibia (1904-1905), of Armenia (1915-1918), the Holocaust (1939-1945), Cambodia (1975-1979), the Balkans (1990). and Rwanda.

[50] Eight hundred thousand people died in Rwanda during ninety days of collective insanity where people lost themselves in the anonymous crowd, abdicating all responsibility.

[51] As early as the first century B.C., the philosopher Lucretius said:

    [translation]
    When the crowd pushes me in a certain direction, I can always push back with my shoulder and try to resist. To my mind, there is no better definition of freedom. Everyone always has that option.

[52] As the evidence shows, many Rwandans, regardless of ethnicity, conducted themselves with exemplary courage during the genocide, often at the cost of their own lives.

[53] The accused, an educated man from a privileged class, chose to kill, rape, and pillage to promote the supremacy of his ethnic group, reminding us again that whenever a man claims to belong to a superior race or a chosen people, humanity is in danger.

[54] For genocide to exist, one man must first decide to kill another. And then another... to the point of absurdity.

[55] The accused chose to kill and take part in the genocide. He was one of the leaders in Butare. He carries full responsibility. The sentence must be proportionate to the gravity of his crimes.

[56] That is why I would have imposed a sentence of life imprisonment without eligibility for parole before twenty-five years if the defence's theory had been accepted for counts 1, 3 and 5. That is also why I impose a sentence of life imprisonment together with ten years to be served before eligibility for parole on counts 2, 4 and 6.

[57] The sentence that I impose is severe because the Act considers that the indictable offences committed by the accused are the most serious ones that can exist.

[58] History has shown that what happened there can repeat itself anywhere in the world and that no one is safe from such a tragedy.

FOR THESE REASONS, THE COURT SENTENCES DÉSIRÉ MUNYANEZA:

[59] To life imprisonment without eligibility for parole for twenty-five years for each of the counts 1, 3 and 5;

[60] To life imprisonment without eligibility for parole for ten years for each of the counts 2, 4 and 6;

[61] To the time spent in prison to date for count 7;

[62] All these sentences are to be served concurrently;

[63] DECLARES that the term of imprisonment has been set to begin on October 19, 2005, the date of the accused's arrest and imprisonment;

[64] Furthermore, the Court PROHIBITS the accused from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for ten years after his release;

[65] The Court also PROHIBITS the accused from possessing any prohibited firearm, restricted firearm, prohibited weapon and prohibited ammunition for life.

ANDRÉ DENIS, J.S.C.

Mtre Pascale Ledoux
Mtre Richard Roy
Mtre Alexis Gauthier
Counsel for the Prosecution

Mtre Richard Perras
Mtre Mylène Dimitri
Mtre Paul Skolnik
Counsel for the Accused

Mtre Jean-Philippe Rocheleau
Articling student
with the Court

Ms. Jacinthe Lamonde
Administrative Assistant
with the Court

Date of hearing: May 22, 2009

APPENDIX

ACTE D'ACCUSATION / INDICTMENT

DÉSIRÉ MUNYANEZA, se trouvant au Canada, est inculpé / being present in Canada stands charged:

(1) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, intentionally murdered members of an identifiable group of persons, to wit: the Tutsi, with the intention of destroying the Tutsi, in whole or in part, committing an act of genocide as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of genocide, as provided in paragraph 6(1)(a) of the said Crimes Against Humanity and War Crimes Act;

(2) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, caused serious bodily or mental harm to members of an identifiable group of persons, to wit: the Tutsi, with the intention of destroying the Tutsi, in whole or in part, committing an act of genocide as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of genocide, as provided in paragraph 6(1)(a) of the said Crimes Against Humanity and War Crimes Act;

(3) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, intentionally murdered members of a civilian population or an identifiable group of persons, to wit: the Tutsi, knowing that the said intentional murder was part of a generalized or systematic attack against the Tutsi, committing a crime against humanity as defined in subsections 6(3), 6(4), and 6(5) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of crime against humanity, as provided in paragraph 6(1)(b) of the said Crimes Against Humanity and War Crimes Act;

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

(5) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (FAR) and the Rwandan Patriotic Front (FPR), intentionally murdered persons who were not directly participating in that conflict, committing a war crime as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of war crime, as set out in paragraph 6(1)(c) of the said Crimes Against Humanity and War Crimes Act;

(6) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (FAR) and the Rwandan Patriotic Front (FPR), committed sexual violence against persons, committing a war crime as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of war crime, as set out in paragraph 6(1)(c) of the said Crimes Against Humanity and War Crimes Act;

(7) Between April 1, 1994 and July 31, 1994, in the prefecture of Butare, Rwanda, during an armed conflict, to wit: hostilities between the Rwandan Armed Forces (FAR) and the Rwandan Patriotic Front (FPR), engaged in pillaging, committing a war crime, as defined in subsections 6(3) and 6(4) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, thereby committing the indictable offence of war crime, as set out in paragraph 6(1)(c) of the said Crimes Against Humanity and War Crimes Act.

[Source: CanLII, Federation of Law Societies of Canada, Ottawa, Canada]

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