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War Crimes and Related Law (Canada)
(February 2008)

Chapter 8 - Procedures and Evidence

  1. Overview
  2. Law Enforcement Procedures
  3. Attorney-General Consent
    (a) Overview
    (b) Requirement of Federal A-G Consent
  4. Crimes Against Humanity Fund

________________________________________

1. Overview

All international crimes prosecutions in Canada are prosecuted in the regular Canadian criminal courts and follow the procedures of the Criminal Code of Canada [CAHWCA s.2(2)].

Further, most international crimes offences - be they for "main", supervisory and ancillary offences are "indictable" in nature. That means that they may NOT be prosecuted by way of "summary procedure", which is a set of procedures reserved for less serious charges.

The full range of Criminal Code procedures is quite extensive and beyond the scope of this program. However, this chapter notes procedures which are particular to international crimes prosecutions.


2. Law Enforcement Procedures

There is a three-party "Interdepartmental Operations Group" (IOG) comprised of representatives from the RCMP, the (new) Canada Border Security Agency and the federal Department of Justice. The Canadian Security Intelligence Service (CSIS) does not have a formal role in the IOG but international crimes activity fall under their mandate when they become a "threat to Canada" (see Ch.14: "Terrorism") .

The IOG's website is informative reading:

Department of Justice: Crimes Against Humanity and War Crimes Program

Police investigation within Canada of international crimes is generally governed by the normal Canadian law governing such activities. However the nature of international crimes law necessarily involves foreign authorities helping in investigation and evidence-gathering abroad, and reciprocal Canadian efforts to help them when so requested.

The federal Mutual Legal Assistance in Criminal Matters Act (MLACMA) implements international treaties for these purposes and authorizes use of Canadian investigative and other related criminal law enforcement procedures when requested by foreign authorities. It also amends Canadian law to facilitate reciprocal co-operation of foreign authorities with Canadian investigations. The areas governed by MLACMA include:
  • search warrants and wiretaps
  • arrest warrants
  • the taking of depositions
  • transfer of witnesses (including admission to the country and legal immunity as required) and video-witnessing
  • mutual exchange and use of evidence
  • service of documents
  • seizure of proceeds of crime and property
  • transfer (both ways) of prisoners
  • enforcement of fines
Canada's Extradition Act applies to persons charged in the ICC with international crimes, with some modifications. In particular, no person whom the ICC requests be extradited may avoid extradition solely by a claim of "immunity under common law or by statute" [Extradition Act, s.6.1].

In addition, witnesses in Canadian or ICC international crimes prosecutions may be eligible for acceptance into the federal Witness Protection program [Witness Protection Program Act].


3. Attorney-General Consent

(a) Overview

When domestic crimes are "privately prosecuted" (ie. the criminal "information" alleging the offence is sworn by a private citizen before a justice of the peace), the Crown (typically the local provincial Crown Attorney's office) has the recognized legal right to step in and 'take over' the conduct of the prosecution. This is often done in order to ensure that a competently-run prosecution is conducted (mindful of the defendant's procedural rights), but in other cases it is a prelude to the "staying" the charges - effectively cancelling them.

A similar requirement is imposed on the prosecution of any international crimes under CAHWCA, except it is structured as a pre-commencement "consent", and it is held by the federal Attorney-General.

(b) Requirement of Federal A-G Consent

The Crimes Against Humanity and War Crimes Act [CAHWCA s.9(3)] provides that the main, supervisory and ancillary ((ie. counselling, conspiracy, aiding and abetting, counselling and attempt)) forms of the offences [under CAHWCA ss.4 to 7]:
  • "no proceedings ... may be commenced without the PERSONAL CONSENT IN WRITING [emphasis added] of the Attorney General or Deputy Attorney General of Canada, and that

  • those proceedings may be conducted only by the Attorney General of Canada or counsel acting on their behalf."
As well, s.18 (bribery of judge or official of the ICC) does require federal A-G consent for commencement of a charge [CAHWCA s.9(4)].

Note however that the several ICC "obstruction-type" international crimes offences established by ss.16-17,19-20,26 of the CAHWCA (see Ch.12: "The International Criminal Court") are NOT subject to these CAHWCA restrictions on private prosecutions.

I note that these consent provisions are not mandated by the Rome Statute, and are entirely a creature of Canadian statute law.

(c) Implications

These consent provisions means that both the initiation and the conduct of international crimes by private prosecutors is practically barred.

While it can be argued that this is not a significant change to the law given the provincial Crown's pre-existing 'supervisory' role over prosecutions (noted in the "Overview"), the particular structure of the CAHWCA consent provision has serious political implications in this very political area of law.

When the provincial Crown, in a normal domestic private prosecution, moves to take over and stay a charge, such an act is considered and intentional, and - while it need not be explained by the Crown - can attract attention as an considered intervention of government directed at the outcome of a criminal prosecution. However in the case of international crimes prosecution, the prohibition against even the initiation of a private prosecution without federal A-G consent leaves the decision-making process thoroughly insulated from public scrutiny. A filed complaint alleging commission of an international crime could be met with stony silence, never to be explained.

Further, while a Crown-Attorney's role in adversarial legal proceedings is recognized as being "impartial" in the sense of "doing justice" rather than to "winning", the federal A-G in Canada and the federal Minister of Justice in Canada are one and the same person: an elected MP and cabinet member of the party in power. As the consent provision require the "personal consent in writing" of this politician the potential for inappropriate political bias is undeniable.

In effect, the consent provision can operate as a politically-motivated case-by-case "immunity" or "prosecution-veto" authority. In this regard its exercise (or simple prosecutorial neglect through silence) may operate to trigger the default jurisdiction of the International Criminal Court in the same fashion that any Canadian legal doctrine of head-of-state immunity might. For that discussion see Ch.12, s.3: "The International Criminal Court: Immunity and ICC Default Jurisdiction" (and generally: Ch.3 "Immunities").


4. Crimes Against Humanity Fund

The CAHWCA also establishes the "Crimes Against Humanity Fund" into which shall be paid all fines, proceeds of crime seized (and property liquidated), reparations and donations thereto. Such funds may be paid to the ICC and/or to victims and their families, at the discretion of the A-G [CAHWCA s.30-32].
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