I	Rome Statute

The Federal Government has indicated that Bill C-19 was enacted in order to implement the Rome Statute. The Rome Statute was adopted in July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998. Its purpose is to create the International Criminal Court, and give it jurisdiction to deal with crimes of genocide, crimes against humanity, and war crimes, including the newly enacted offence of "command responsibility". All of these offences are set out and, in many cases, explicitly defined by the terms of the Rome Statute.

Canada played a key role in the drafting of the Rome Statute and in attempts to achieve its acceptance by the international community. I understand that, to date, 91 states have signed the Rome Statute. It will come into force once it has been ratified by 60 countries. As the Government of Canada has stated, it will "continue to actively promote a coordinating global strategy in support of ICC ratification and implementation".

II	Offences: Same Names, Different Definitions Depending on Location

Given the extensive Canadian Government involvement with the drafting and implementation of the Rome Statute, it is surprising that Bill C-19 proposes to have Canadian courts treat differently crimes alleged to have been committed outside Canada than the International Criminal Court would treat those crimes under the Rome Statute. In addition, Bill C-19 proposes to treat crimes alleged to have been committed in Canada differently from those alleged to have been committed outside Canada.

Bill C-19 deals with crimes committed inside Canada by adopting the offences and defences in respect thereof in the Rome Statute. The effect is that Canadian courts, if Bill C-19 is passed, will have jurisdiction to try someone charged with committing an offence inside Canada on almost exactly the same basis as the International Criminal Court would try those accused persons if charged with those offences in that Court. The offence charged would be the same and, to a great extent, the possible defences to be raised by the accused persons would be the same.

Offences committed outside Canada, however, are treated quite differently by Bill C-19. Although the offences � genocide, crimes against humanity and war crimes � have the same names as offences created by Bill C-19 for acts in Canada, they are defined quite differently.

For instance, the definition of "crime against humanity" in respect of offences alleged to have been committed outside Canada does not include a requirement that the offences in question be committed against a "civilian population or any identifiable group of persons". An act cannot be a crime against humanity as defined by the Rome Statute, or as defined for offences committed within Canada by Bill C-19, unless that act is committed as "part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack". There is no such requirement in Bill C-19 for an offence of "crime against humanity" committed outside of Canada prosecuted before a Canadian court.

This specific change is all the more surprising when one considers that, in the Supreme Court of Canada decision in Regina v. Finta, the majority of the Court held that, before a person could be convicted of a "crime against humanity" as the definition was then set out in the Criminal Code, it would have to be proved not only that the accused person had committed the prohibited act and known that, but also that the prohibited act was, to the knowledge of the accused person, based on "discrimination against or the persecution of an identifiable group of people". That requirement would still exist under Bill C-19 but only for persons alleged to have committed the offence of crime against humanity within Canada, or for persons tried before the International Criminal Court under the Rome Statute. The Government of Canada appears to be attempting to remove that requirement only for persons tried under Bill C-19 before Canadian courts, charged with committing offences outside of Canada.

The draftspersons of the Rome Statute, who were eminent international jurists, obviously felt that someone should not be convicted of a "crime against humanity" in the absence of the improper motivation for the act which was committed being "discrimination against or the persecution of an identifiable group of people". The persons who drafted the Criminal Code amendments following the Desch�nes Commission Report obviously thought the same thing, for those Criminal Code provisions included that requirement of improper motivation. The only reason, in my opinion, to remove the requirement of improper motivation from the definition of "crimes against humanity" alleged to have been committed by persons outside of Canada in prosecutions under Bill C-19 is to enable convictions to be entered without proof that the prohibited act was motivated by "discrimination against or the persecution of an identifiable group of people".

The acts which constitute a "crime against humanity" under the Rome Statute (and, under Bill C-19, for offences alleged to have been committed within Canada) are all, except for murder and the sexual offences, defined in such a way as to make clear what specific acts are being prohibited. There is not, however, any definition of the specific acts contained in the definition of "crime against humanity" in Bill C-19 where that is the basis of an allegation of an offence alleged to have been committed outside of Canada.

There is a similar lack of clear definition of a "war crime" in Bill C-19 when the offence is alleged to have been outside of Canada, although a "war crime" is extensively and clearly defined when the offence is alleged to have been committed inside Canada.

It is a fundamental principle of the Canadian criminal justice system that the legislation creating an offence clearly set out exactly what acts are prohibited, so that the accused persons will know what they are alleged to have done and, equally as important, so that the court can apply the law in the same way for each accused person. The effect of these broad definitions in Bill C-19, applied only to crimes alleged to have been committed outside Canada, is that the possibility of a conviction is, to a great extent, dependent upon the individual perceptions of the judge or each member of the jury trying the case, and the ability of the prosecution to incite strong feelings against the accused. In war crime prosecutions, such feelings are easily aroused. Certainty of the law protects individuals from unfair application of the law. That seems to have been recognized by the draftspersons of the Rome Statute and by the draftspersons of Bill C-19, with respect to offences alleged to have been committed inside Canada. There does not appear to have been the same concern in Bill C-19 with respect to offences alleged to have been committed outside Canada.

III	Different Application of the Law Depending on Where the Crime Committed

Bill C-19 proposes to make retroactive the provisions creating offences outside of Canada, but does not make retroactive the provisions creating offences within Canada. The Rome Statute is not retroactive.

The effect of differentiating between crimes committed outside Canada and those committed inside Canada in this way means that if a person is alleged to have committed, within Canada, an offence which may be a war crime, prior to the coming into force of Bill C-19, that person could not be convicted of that offence. If the same act was committed outside Canada, however, prior to the coming into force of Bill C-19, the person could be convicted in Canada of the offence.

This last point is, in my opinion, particularly problematic when the effect of the creation of the offence of command responsibility and the elimination of the defence of superior orders is considered.

"Command responsibility" is an offence created by Bill C-19, and the Rome Statute, which makes a military commander or other superior authority responsible for war crimes, crimes against humanity or genocide committed by their subordinate in circumstances where the military commander or superior authority knew or ought to have known that his or her subordinate was committing the offence and failed to take all reasonable measures to prevent it or submit the matter to the competent authority for investigation and prosecution. This provision makes the person a criminal for what he or she should have done rather than for what he or she did do. It is much more difficult to judge someone by this standard for events that occurred a long time in the past. Judges and jurors sitting today, asked to determine what a person "should have known" or "should have done" during a war and a time which few, if any, of them experienced will be severely hampered in attempting to deal out evenhanded justice.

Bill C-19 also eliminates the defence of superior orders for the offences of crimes against humanity and genocide. That defence, which never applied where the order being relied upon was manifestly unlawful, is one which has been recognized by international and domestic tribunals for centuries. No complaint can be made when the international community decides to eliminate that defence for acts which take place in the future in the Rome Statute. Soldiers and others in receipt of such orders in the future have been given fair warning that they cannot rely upon the necessity to obey an order to commit one of those acts. It is quite another thing, however, to remove that defence retroactively (as provided in Bill C-19, but only for crimes committed outside Canada) so that a person charged with an offence in the past will not be able to assert, as a defence, the fact that he was ordered to commit that act and that order was not manifestly unlawful.

IV	Conclusion

All of these difficulties stem from the fact that the Government of Canada is proposing to treat persons alleged to have committed offences outside Canada quite differently from the way it proposes to treat persons alleged to have committed the same offences inside Canada. In many significant ways, Bill C-19 treats the conduct of persons outside Canada more harshly than the conduct of those inside Canada, and more harshly than such persons would be treated if the accuseds were tried by the International Criminal Court under the Rome Statute, an international convention which Canada was instrumental in drafting and bringing into force. It is difficult to understand why the Federal Government is of the opinion that the provisions of the Rome Statute, which were thought to be fair and just by the international community and by Canada (but only for offences alleged to have been committed within Canada), were too lax to be used as the basis for offences committed outside of Canada and tried by Canadian courts under Bill C-19.

Peter K. Doody

Borden Ladner Gervais LLP
Lawyers * Patent & Trade-mark Agents
60 Queen Street, Suite 1000
Ottawa, Ontario, Canada K1P 5Y7
tel.: (613) 237-5160 fax: (613) 230-8842
www.blgcanada.com

March 17th, 2000