Overview of the proceedings
Victims may only initiate criminal legal proceedings with the court’s approval. Article 9(3) of the Code of Criminal Procedure states “The following may be prosecutors: (1) the Attorney General; (1.1) the Director of Criminal and Penal Prosecutions; (2) a prosecutor designated under any Act other than this Code, to the extent determined in that Act; (3) a person authorised by a judge to institute proceedings.” Victims may thus initiate criminal proceedings when they receive the court’s permission to bring charges. Victims must request authorisation from an ad hoc court. When the court has reasonable grounds to believe a violation has occurred, it authorises prosecution.
Prosecutions are generally taken over in first instance by the Attorney General or the Director of Criminal and Penal Prosecutions. 1 With regard to international crimes, however, the personal written consent of the Attorney General or his Deputy Attorney General is required to prosecute. 2 The Interdepartmental Operations Group (IOG, or Ops Committee) has developed a policy to establish criteria ensuring that cases under investigation are appropriately prioritised for possible prosecution under the Law on Crimes Against Humanity and War Crimes. These criteria are grouped into three categories:
- The nature of the allegation (credibility, severity of the crime (genocide, war crimes, crimes against humanity), military or civilian position, strength of evidence).
- The nature of the investigation (progress in the investigation, ability to obtain the co-operation of other countries or an international tribunal, the likelihood of effective co-operation with other countries, the presence of victims or witnesses in Canada or in other countries where access is easy, the likelihood of a parallel investigation in another country or by an international tribunal, the likelihood of being part of a collective investigation in Canada, the ability to conduct a document search in order to assess the credibility of the allegation, the likelihood of prosecuting for the offence or of danger to the public with regards to allegations of crimes against humanity and war crimes).
- Other factors (probability of no return, no reasonable prospect of fair and effective prosecution in another country or indictment by an international court, unlikely extradition, factors affecting the national interest).
ACCI v. Anvil mining limited in DRC
On 8 November 2010, a class action against Anvil Mining was filed by the Congolese NGOs ASADHO and ACIDH and their partners RAID, Global Witness and the Canadian Center for International Justice, which are all are members of the Canadian Association against Impunity (ACCI), an NGO coalition representing relatives of victims of the 2004 Kilwa massacre in the DRC. Anvil Mining is accused of providing logistical support to the Congolese army who raped, murdered and brutalised the people of Kilwa.
On 28 April 2011, the Superior Court of Quebec ruled that the case can proceed to the next stage. In his decision, Judge Benoît Emery rejected Anvil Mining’s position that there were insufficient links to to enable the court to have jurisdiction over the case and considered that at this stage in the proceedings,on the basis of article 3135 of the Civil Code of Quebec, if the court were to refuse to accept the class action, there would be no other possibility for the victims’ civil claim to be heard.
Anvil lawyers sought leave to appeal this judgement and a hearing was held on 3 June 2011. The main legal issue hinges on the interpretation of the meaning of activities [3148 (2) CcQ]. ACCI argued that traditionally activities had been widely interpreted in Quebec jurisprudence. It therefore argued that it was sufficient to show that the company had an establishment and undertook activities in Quebec to be able to proceed.
On 25 January 2012, the Quebec Court of Appeal reversed the decision of the Superior Court Judge Honorable Benoît Emery and thus refused jurisdiction to hear the class action. The Court of Appeal states that there was insufficient connections to Quebec due to the fact that Anvil Mining’s office was not involved in managerial decisions leading to its alleged role inthe massacre (which contradicts earlier findings by Judge Emery). The Court also found that it had not been proven that victims could not access justice in another jurisdiction (the DRC or Australia).
The applicants will try for leave to appeal to the Supreme Court of Canada.
An insight into…
Procedural and political hurdles
Foreigners’ access to justice
Canadian law does not distinguish between Canadian and foreign citizens in providing access to justice.
Political Question and Act of State Doctrine
The Supreme Court of Canada has stated that any matter is justiciable. 3 Parliament has nonetheless granted blanket immunity to foreign states and their governments before Canadian courts. That immunity, however, does not extend to procedures related to the commercial activities of foreign states.
Forum non conveniens
The Supreme Court has emphasised the exceptional nature of exercising forum non conveniens, arguing that the existence of a more appropriate jurisdiction should not lead a sufficiently appropriate court to decline jurisdiction.
In criminal matters, legal aid may be granted to Canadian citizens and to refugees and migrants. In Québec, it is provided almost exclusively to Canadian citizens.
Cost of litigation
In general, the unsuccessful party bears the costs incurred by the other party. In Québec for instance, the costs are determined by the T ariff and Court Costs whereas in Ontario, costs are generally divided between parties.