On 28 June 2005, the Supreme Court of Canada confirmed a deportation order for a Rwandan Hutu politician who had become a permanent resident in Canada. The deportation order was issued pursuant to the Immigration Act of 1985 (Immigration Act, R.S.C. 1985, c. I-2. now replaced by the Immigration and Refugee Protection Act, S.C. 2001, C. 27). It was based on a speech made by that individual in Rwanda in 1992 and which was deemed an incitement to commit murder, genocide and hatred, and therefore to constitute a crime against humanity.
The Immigration Act provides for the non-admission to Canada of two categories of persons: first, persons suspected on the basis of "the balance of probabilities" of being the perpetrators of a crime such as incitement to genocide, murder or hatred; second, persons about whom there are "reasonable grounds to believe” that they have committed a crime against humanity outside of Canada. The Supreme Court had to rule on the legality of the deportation order on this basis.
As to the allegation of incitement to genocide, the court ruled that it was not necessary to establish a direct causal link between the speech and the acts of murder or other violence, and that incitement was punishable by virtue of the criminal act alone irrespective of the result. The court concluded that an incitement to genocide had been committed and that the individual who had made the speech was therefore not eligible for residence in Canada under the Immigration Act. 27(1)(a.1)(ii) and 27(1)(a.3)(ii) of the Immigration Act.
The court then went on to assess whether the speech itself had constituted a crime against humanity. At the time relevant to this appeal, crimes against humanity were defined in and proscribed by sections 7(3.76) and 7(3.77) of Canada's Criminal Code (Sections 7(3.76) and 7(3.77) of the Criminal Code have since been repealed; crimes against humanity are now defined under sections 4 and 6 of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24) based on the definitions laid down by the International Military Tribunal in Nuremberg. The court observed that a hate speech, particularly when it advocates egregious acts of violence, may constitute a crime against humanity, specifically that of persecution. After a thorough examination of the elements of the crime, the court decided that a crime against humanity had been committed and that the individual who made the speech was therefore not eligible for residence in Canada under the Immigration Act.