Tell us about your experience prosecuting core international crimes and related work?
From 2009 to 2013, I was part of the team that prosecuted Jacques Mungwarere in Ottawa for genocide and crimes against humanity committed in Kibuye Rwanda in 1994. Following 24 pre-trial motions and 95 days of trial, the accused was acquitted of all charges. The trial featured shocking moments when some Tutsi survivors acknowledged making false accusations against Mr Mungwarere and shared their reasons to subsequently testify on his behalf. During the next few years, I found reprieve from the violence – litigating constitutional challenges to controversial domestic legislation. But the reprieve ended. From 2015 to 2018, I was part of the team that prosecuted Ali Omar Ader in Ottawa for the hostage-taking of Canadian Amanda Lindhout and Australian Nigel Brennan in Mogadishu Somalia in 2008-2009. Following challenges to the wiretaps, national security complications, and powerful testimony from victims, Mr Ader was convicted for his participation in their brutal 15-month captivity. This trial contrasted the horrific depths of greed and depravity against the inspiring power of love and forgiveness. Currently at DOJ, I advise Royal Canadian Mounted Police investigators in support of Canada’s policy of ‘No Safe Haven’ for perpetrators of atrocity crimes.
What drew you to work in this field?
That’s a hard question to answer. Before law school, professors at Queen’s University challenged me to not ‘sell out’. Upon graduation, my work for an investment bank in Zurich and for the European Space Agency in Paris proved their point – the 1% doesn’t need any more help. Years of travel further highlighted the shameful inequality of income, security, and opportunity. While studying at the University of British Columbia (UBC) law school in Vancouver, I was inspired by lectures from Louise Arbour, Lloyd Axworthy, and Philippe Kirsch. The 2004 Jessup Moot addressed issues of ICL and the ICC. Numerous UBC Law professors agreed to supervise directed-research papers in ICL. Vancouver’s criminal bar supported law students to appear in court. Upon arrival in Ottawa in 2005, DOJ’s Legal Excellence Program permitted articling rotations with both the Federal Prosecution Service and the War Crimes Section. Connecting the dots looking backwards, I have many people to thank for challenging me, inspiring me, supporting me, and taking a chance on me. It’s now time to pay it forward.
Describe Canada’s Crimes Against Humanity and War Crimes Program in terms of its mandate, successes, and challenges.
The primary goal of Canada’s Crimes Against Humanity and War Crimes Program is to deny safe haven in Canada to war criminals or those suspected of being directly involved or complicit in the commission of war crimes, crimes against humanity, or genocide. The Program has four partners: the Canada Border Services Agency; Immigration, Refugees and Citizenship Canada; the Royal Canadian Mounted Police; and the Department of Justice. The four partners collaborate to prevent entry by war criminals into Canada by denying visas overseas and denying entry at our borders. They also collaborate to obtain remedies against war criminals already present in Canada, including: inadmissibility determinations; exclusion from refugee protection; removal orders; citizenship revocation; extradition; surrender; criminal investigation and prosecution. Canada’s Program also actively cooperates with international partners and conducts outreach with domestic stakeholders.
Two current successes of the Program are cultural. Firstly, war crimes issues are now a routine part of the operations and vocabulary of Canada’s public service, including: visa officers; border officials; analysts; advisors; investigators; and litigators. In this sense, war crimes issues are now no different from human trafficking, drug smuggling, or child exploitation. Secondly, trust is increasing between the NGO community and Canada’s public service. This permits us to explore collaborative approaches in the international fight to end impunity.
Two current challenges facing the Program are not unique to Canada. Firstly, the record number of international migrants and the proportion of refugees and asylum seekers threaten to overwhelm the existing systems. War criminals seek protection in this unprecedented volume. Secondly, private-sector profit-driven corporations are willing to assist governments in the fight to end impunity. For example, they offer big-data analytics and preservation of digital evidence from social media platforms. Engaging these new partners must be done responsibly and cautiously.
What does international criminal justice mean to you?
It’s an imperfect expression of our shared commitment to the rule of law. Echoing Louise Arbour, it’s a long-term investment in peace – but still a work in progress.
Leaving the violent details aside, tell us about some “shocking moments” in the Mungwarere genocide trial
Jacques Mungwarere and Justice Charbonneau are shown in a courtroom in Ottawa on 28 May 2012. (Sarah Wallace / THE CANADIAN PRESS)
Numerous Tutsi survivors testified how their families and friends were slaughtered by Hutu attackers in the Bisesero Hills in 1994. They further testified to having falsely accused Mr Mungwarere of participating in these attacks. They cited various reasons for lying to the RCMP investigators: a spirit of hatred and vengeance; to ensure the incarceration of a Hutu; fear of reprisals from powerful Tutsis; to travel abroad; and to obtain compensation from investigators. Some also articulated various reasons why they agreed to testify on behalf of the accused: a spirit of reconciliation; to liberate one’s conscience; and first-hand experience of wrongful imprisonment. One survivor even apologized – to the RCMP, to the prosecution team, and to the accused – for the damage caused by his lies. In response to all this testimony tendered on behalf of the accused, the trial judge observed that the prosecution’s evidence was not irredeemably tainted by the false accusations. In the judge’s final opinion, however, the prosecution’s evidence only established a probability of guilt.
What advice would you give to fellow prosecutors who are considering working in this field?
Have the courage to give hard advice, and avoid files with witness-credibility issues like the one I just described! But in all seriousness, here’s some advice that I found meaningful from a wise old judge: All lawyers must learn to juggle. We must keep many ‘balls’ up in the air simultaneously: multiple cases; family responsibilities; volunteer endeavours; etc. We’re confident that if one ball drops, it will bounce back up. Successful lawyers, however, learn which balls are made of glass – and don’t bounce. In particular, successful lawyers don’t lose sight of three glass balls: emotional well-being; physical health; and supportive relationships.
In my experience prosecuting atrocity crimes, another glass ball to protect is your perspective. At work, narratives of violent victimization take a significant toll. Inevitably and regrettably, this toll follows us home after work. Daily accounts of murder, sexual violence, torture, and profound suffering negatively impact the lens through which we evaluate the priorities and worries of our family and friends. Instead of judging their concerns as first-world problems, we must strive to remain mindful and protect a healthy perspective – and continually thank those who put up with us!