Alumnus Louis Century and the legal case against the Indian prime minister

Alumnus Louis Century, JD/MGA 2013

Alumnus Louis Century, JD/MGA 2013:
testing serious allegations in a Canadian court.

By Andrew Stobo Sniderman, JD 2014 / Photography by Gordon Hawkins

From the Spring/Summer 2015 issue of Nexus

In late March, Louis Century, JD/MGA 2013, was working on a Sunday afternoon in the office—as civil litigators do—when a partner named Marlys Edwardh came up to him in the coffee room and asked, “How busy are you?”—as partners do. He was about to get busier. Within three weeks Edwardh and Century would be in court arguing for criminal charges against the elected leader of more than a billion people, Indian Prime Minister Narendra Modi. They came closer than you might expect.  

Modi’s three-day tour in April of Ottawa, Toronto and Vancouver was the first visit to Canada by an Indian prime minister in more than four decades. Stephen Harper warmly welcomed “a man whose India dream has given hope to millions.” They promptly signed an agreement to sell more than 7,000 pounds of Saskatchewan uranium for Indian nuclear power. Modi was met with mostly rapturous crowds during the length of his stay. However, on April 15th, the same day that Modi spoke to 10,000 people in Toronto, lawyers were arguing in court about whether he should be arrested for supporting torture.

Before Modi was elected prime minister, he was the leader of an Indian state named Gujarat, whose population is about twice Canada’s. It was on Modi’s watch, in 2002, that more than 1,300 people, mostly Muslims, were murdered in communal violence that also displaced over 100,000. Modi’s role in this violence remains in dispute, and despite investigations within India, he has never stood trial.  

A non-governmental group named Sikhs for Justice wanted to change that, so they hired Edwardh and Century’s law firm, Sack Goldblatt Mitchell, to make the case. After a few weeks of intensive research, a public letter was sent to the Attorney General outlining arguments for Modi’s arrest on Canadian soil. The brief argued that Modi “aided, abetted and counseled in relation to an organized massacre of thousands of Muslim Indians, and that Modi may be charged and prosecuted for torture and genocide under Canadian law.”

On April 15th, while Modi was in Toronto, the legal hoop-jumping began in earnest. The basic idea was to initiate a “private prosecution,” which is a prosecution initiated by the complaint of a private citizen. Edwardh and Century went to Old City Hall to present evidence supporting the charges. To their surprise and satisfaction, a justice of the peace named Andrew Clarke then secured a courtroom for that very morning for what is called a “pre-enquête,” a hearing to suss out whether there are sufficient grounds for a prosecution. A typical wait time for a courtroom at Old City Hall is often upwards of a month, but this was not a typical case.

Edwardh, a celebrated human rights lawyer, led oral argument. She cleared two preliminary hurdles deployed by Crown lawyers. First, the justice of the peace declined to rule initially on whether the proceeding was barred because of state immunity. Second, the justice of the peace declined to delay the proceedings to give the Crown “reasonable notice.” The notice that the Crown wanted would give Modi enough time to leave Canada and render the whole matter moot. So on the pre-enquête went, and it proceeded to examine the merits of the evidence against Modi. There would be a decision by the end of the day about whether Modi should be hauled into Court.

Before he tried to prosecute Modi for torture, Century defended accused Sudanese war criminals. One summer during law school, he worked at the International Criminal Court (ICC) on the defense team of Abdallah Banda and Saleh Jerbo, two rebels in the conflict in Darfur, Sudan. The two men were alleged to have attacked a camp of international peacekeepers. In the years since, the case has not proceeded to trial, and Jerbo was shot dead in combat. Charges against their adversaries in the Darfur conflict, including the president of Sudan, Omar al-Bashir, have also languished. “I wasn’t naïve about the capacity of the ICC to accomplish its unspeakably large mandate,” Century says. “But I’ve always been drawn to emerging institutions in international law.”

By the time he arrived in first year, he had already worked for the United Nations High Commissioner for Refugees in Nairobi, Kenya, and for the International Campaign to Ban Landmines in Lusaka, Zambia. Then came summer work with the International Criminal Court, the Canadian Council for Refugees and the Asper Centre for Constitutional Rights. He also squeezed in a master’s degree at the Munk School of Global Affairs alongside his JD.

After graduating, Century continued at the Supreme Court of Canada, where he clerked for Justice Richard Wagner. That year, a high profile case about torture was heard, called Kazemi Estate v Islamic Republic of Iran. The case was about whether the government of Iran could be held civilly liable for torture by Iranian officials of a Canadian citizen. The answer, under a current Canadian Law, the State Immunity Act, was no. But this statute does not rule out criminal prosecution of foreign government officials, and there are Criminal Code offences with universal jurisdiction extending beyond Canada’s shores. Hence the effort to have Modi arrested. In theory, a government official who supports torture in Gujarat can be arrested in Toronto.

Back in the courtroom, at the end of a day argument, Justice of the Peace Clarke released his decision: Narendra Modi should appear before a Canadian Court to face the criminal charge of torture under section 269.1 of the Criminal Code.  Clarke was satisfied that there was evidence on each element of the offence, and the charges were not frivolous. The only question was whether to bring Modi to court through a “summons,” or to arrest him.

It was at this point–after charges were issued–that the Crown pulled the plug and withdrew the charges. No matter that a judge had just decided there was a prima facie case against Modi for torture.  At the end of the day, it is the Crown that must conduct a prosecution, and when they decide against doing so, it is almost impossible to overturn the decision. No doubt the Crown was aware it is rather hard to conduct international relations when heads of state get arrested on diplomatic visits.

As far as media coverage goes, the failed legal effort was a success. The case against Modi was featured in media outlets across Canada, including in the Toronto Star, the National Post, and the Globe and Mail. The story also received extensive coverage in India in Indian Express, the Hindu, the Times of India, and the Hindustan Times.

As for Century, did he ever expect Modi would actually get arrested? “To be frank, no,” he admits. “But the point was to raise awareness around serious allegations that have never been tested in court. The Crown may refuse to proceed, but the public should know about that decision.”