Crimes Against Humanity and War Crimes Act (S.C. 2000, c. 24)

Marginal note:Defences

11. In proceedings for an offence under any of sections 4 to 7, the accused may, subject to sections 12 to 14 and to subsection 607(6) of the Criminal Code, rely on any justification, excuse or defence available under the laws of Canada or under international law at the time of the alleged offence or at the time of the proceedings.

Marginal note:When previously tried outside Canada

• 12. (1) If a person is alleged to have committed an act or omission that is an offence under this Act, and the person has been tried and dealt with outside Canada in respect of the offence in such a manner that, had they been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict or pardon, the person is deemed to have been so tried and dealt with in Canada.

• Marginal note:Exception

  (2) Despite subsection (1), a person may not plead autrefois acquit, autrefois convict or pardon in respect of an offence under any of sections 4 to 7 if the person was tried in a court of a foreign state or territory and the proceedings in that court

  • (a) were for the purpose of shielding the person from criminal responsibility; or

  • (b) were not otherwise conducted independently or impartially in accordance with the norms of due process recognized by international law, and were conducted in a manner that, in the circumstances, was inconsistent with an intent to bring the person to justice.

Marginal note:Conflict with internal law

13. Despite section 15 of the Criminal Code, it is not a justification, excuse or defence with respect to an offence under any of sections 4 to 7 that the offence was committed in obedience to or in conformity with the law in force at the time and in the place of its commission.

Marginal note:Defence of superior orders

• 14. (1) In proceedings for an offence under any of sections 4 to 7, it is not a defence that the accused was ordered by a government or a superior — whether military or civilian — to perform the act or omission that forms the subject-matter of the offence, unless

  • (a) the accused was under a legal obligation to obey orders of the government or superior;

  • (b) the accused did not know that the order was unlawful; and

  • (c) the order was not manifestly unlawful.

• Marginal note:Interpretation — manifestly unlawful

  (2) For the purpose of paragraph (1)(c), orders to commit genocide or crimes against humanity are manifestly unlawful.

• Marginal note:Limitation — belief of accused

  (3) An accused cannot base their defence under subsection (1) on a belief that an order was lawful if the belief was based on information about a civilian population or an identifiable group of persons that encouraged, was likely to encourage or attempted to justify the commission of inhumane acts or omissions against the population or group.