87-3E
WAR CRIMINALS:
THE DESCHÊNES COMMISSION
Prepared by:
Grant Purves
Political and Social Affairs Division
Revised 16 October 1998
TABLE
OF CONTENTS
ISSUE
DEFINITION
BACKGROUND AND ANALYSIS
A. The War Crimes Trials
B. The Onset of the Cold War and the Decision
to Halt War Crimes Trials
C. Exclusions under Canadian
Immigration Policy
D. Establishment
of the Deschênes Commission
E. The Report of the Deschênes
Commission
1. General
2.
The Criminal Law
3.
Extradition and Treaties of Extradition
4. Denaturalization and Deportation
5.
The Response of the Government
F. War Crimes Prosecutions
1. Criminal Prosecutions
2.
Civil Proceedings
a. Accused Who Have Died
b. Accused Who
Have Voluntarily Left the Country
c.
Accused Found to Have Concealed Material Circumstances
d.
No Probable Concealment of Material Circumstances Established
e. Ongoing Proceedings
PARLIAMENTARY ACTION
CHRONOLOGY
SELECTED BIBLIOGRAPHY
WAR CRIMINALS:
THE DESCHÊNES COMMISSION*
ISSUE
DEFINITION
In recent years, the presence
in Canada of individuals who may, as Nazis or Nazi collaborators, have
committed war crimes in Europe 50 to 55 years ago has raised a number
of issues, including: how many such individuals currently reside in Canada;
how they came to be here; whether they should be the object of investigation
and prosecution and, if so, what means might be used to bring them to
justice. Since no authoritative study of these issues existed, the Deschênes
Commission was appointed in 1985 to investigate and report on the subject.
BACKGROUND AND ANALYSIS
A. The War Crimes Trials
The post-World War II Nuremberg
trials concentrated on bringing to justice the "major" war criminals,
that is, those Nazis most responsible for establishing and implementing
the policies which led to the war, to the abuse of civilian populations
in occupied Europe and of prisoners of war, and to the attempted systematic
extermination or genocide of whole categories of people. These categories
included the Jews, Gypsies and the Slavs (some of whom were to be spared
to form a pool of slave labour) as well as homosexuals, the mentally infirm,
etc. Many "major" war criminals, such as Adolf Eichmann and
Joseph Mengele, managed to escape from Germany and to elude capture for
long periods of time.
Not as much attention was
paid to the "lesser" war criminals. Those suspected were subjected
to a process of "denazification," but relatively few of the
thousands implicated were brought to trial and convicted before 1948.
These persons, who had functioned in relative obscurity as prison and
concentration camp guards, as other ranks and non-commissioned officers
in death squads, and as informers and collaborators, were frequently non-Germans
recruited from among the subject peoples of Europe. The lower echelon
Nazis and collaborators had acted as the instruments of the genocide programs
initiated by the Nazi hierarchy.
B. The Onset of the Cold War and
the Decision to Halt War Crimes Trials
In early 1948, relations
between the western powers and their erstwhile ally, the Soviet Union,
deteriorated rapidly. In February, Soviet-supported Communists successfully
overthrew the government of Czechoslovakia and transformed the country
into a Peoples Republic. In July, disagreements over the administration
and future of occupied Germany led to the Soviet blockade of Berlin and
almost to war.
It was against this background
of intensifying East-West hostility, the so-called "Cold War,"
and the drive to create the Federal Republic of Germany out of the rubble
of the Nazi regime, that the governments of the Commonwealth, including
Canada, received a telegram dated 13 July 1948 from the British Commonwealth
Relations Office. This proposed an end to Nazi war crimes trials in the
British zone of Germany. "Punishment of war crimes is more a matter
of discouraging future generations than of meting out retribution to every
guilty individual ... it is now necessary to dispose of the past as soon
as possible." Faced with the reality of a new and dangerous enemy,
the western powers became reluctant to pursue the remnants of the old.
Their limited security resources were re-deployed to uncover suspected
Soviet agents and Communists, rather than to identify and track down Nazi
war criminals. In Canadian immigration policy, which was rapidly liberalized
after the war, the restrictions against the entry of ex-enemy aliens were
systematically relaxed.
C. Exclusions under Canadian
Immigration Policy
Until 1949, Canada had no
criteria for rejecting as immigrants either Nazis or the German military.
The prohibition then introduced included past members of the Nazi party,
the SS (Schutz Staffel, an élite Nazi police force), Waffen SS (an equally
heinous military version of the SS), the German Wehrmacht or regular armed
forces, and collaborators. The Nazi prohibition was dropped in 1950. Non-Germans
conscripted into the Waffen SS after 1942 were exempted in 1951 as were,
in 1953, Waffen SS German nationals under the age of 18 at the time of
conscription and ethnic Germans (the Volksdeutsche) conscripted under
duress. The more general ban on veterans of all German military and SS
units was relaxed in 1956 in cases of exceptional merit or where these
veterans had close relatives in Canada. Specific exclusions were removed
altogether in 1962. There remained only the loose catch-all exclusion
of those "implicated in the taking of life or engaged in activities
connected with forced labour and concentration camps."
No serious attempt ever
seems to have been made to define "collaborator" in the relatively
brief period of time these exclusions were in effect and may have been
enforced. For example, membership in the various Nazi-organized police
auxiliaries which had been raised among local populations and used to
keep order, to round up and sometimes to execute those suspected of being
Jews, partisans, etc., was not a specific reason for exclusion.
D. Establishment of the
Deschênes Commission
The immediate cause of the
establishment of the Deschênes Commission in 1985 was the accusation that
Joseph Mengele, an infamous Nazi war criminal, had applied to immigrate
to Canada in 1962 and that Canadian government officials had been informed
at the time of his identity. Moreover, it was suggested that he might
still be in Canada. The issue was raised in the House of Commons on 23
January 1985 by Robert Kaplan. The Prime Minister responded that he had
instructed the Minister of Justice and the Solicitor General to initiate,
on an urgent basis, a full inquiry to ascertain whether there was any
truth in the accusations.
On 7 February 1985, the
Minister of Justice announced that Mr. Jules Deschênes, a Justice of the
Court of Appeal of Quebec, would head an independent Commission of Inquiry
to investigate the charge that a considerable number of Nazi war criminals
had gained admittance to Canada through a variety of illegal or fraudulent
means. The terms of reference of the Commission were:
To conduct such investigations
regarding alleged war criminals in Canada, including whether any such
persons are now resident in Canada and when and how they obtained entry
to Canada, as in the opinion of the Commissioner are necessary in order
to enable him to report to the Governor in Council his recommendations
and advice relating to what further action might be taken in Canada
to bring to justice such alleged war criminals who might be residing
within Canada, including recommendations as to what legal means are
now available to bring to justice any such persons in Canada, or whether
and what legislation might be adopted by the Parliament of Canada to
ensure that war criminals are brought to justice and made to answer
for their crimes.
The Commission was given
wide powers to conduct its investigation, including the power to travel
outside Canada, and was instructed to report its findings and recommendations
by 31 December 1985.
The public hearings of the
Commission had many highlights, but the most emotional aspect of the hearings
and public debate outside the hearings seemed to pit the Canadian Jewish
community against the Canadian East European and Baltic communities. The
latter were afraid that the inquiry would become a witch hunt against
their members who had revolted against Soviet tyranny during the war to
the point of allying themselves with the Nazis.
The question of whether
or not the Commission should travel to the Soviet Union and other Iron
Curtain countries to take evidence caused a bitter controversy throughout
the late summer and early fall of 1985. Baltic and Ukrainian groups were
completely opposed because, they argued, Soviet-supplied evidence could
not be trusted and would be used to attack any individual or ethnic group
opposed to the Soviet state. Representatives of Jewish groups argued that
there was important evidence in the Soviet Union, both eyewitness and
documentary, and that there was no known instance in Europe or North America
of the Soviets having provided a false document or a witness who committed
perjury.
In a formal written decision
of 14 November 1985, Justice Deschênes decided that, while he himself
should not take part in the hearing of evidence abroad, there was no reason
why evidence should not be sought and heard, even in Eastern Bloc countries.
But he set strict conditions that would have to be met by host countries:
i) protection of reputations
through confidentiality;
ii) independent interpreters;
iii) access to original
documents;
iv) access to witnesses
previous statements;
v) freedom of examination
of witnesses in agreement with Canadian rules of evidence; and
vi) videotaping of such
examinations.
However, a satisfactory
response was not received from the Soviet Union until June 1986 and Justice
Deschênes decided there was insufficient time left for the Commission
to travel.
E. The Report of the Deschênes
Commission
1. General
The report of the Commission
was submitted to the government at the end of 1986, a year later than
originally anticipated. The Government tabled the public portion of the
Report [Commission of Inquiry on War Criminals, Part 1: Public]
on 12 March 1987 together with its response to the recommendations.
The Report found that public
estimates of the number of war criminals allegedly living in Canada had
become grossly exaggerated, expanding from a "handful" or "several
hundred" in the mid-1970s to "thousands" by the mid-1980s.
Some exaggeration may have resulted from the casual lumping together of
"war criminals" and "war-time collaborators," some
from blanket accusations against all members of certain military units
such as the "Galicia" or "Halychyna" Division (which
the Commission formally cleared of collective war crimes), and still more
from duplication. Nevertheless, the master list of possible suspects compiled
by the Commission contained the names of just 774 individuals; an addendum
listed 38 names, and there was a further list of 71 German scientists
and technicians. Of the 774 suspects on the master list, 341 were found
never to have landed or resided in Canada, 21 had landed in Canada but
had left for another country, 86 had died in Canada, and 4 could not be
located in this country. The Commission could find no prima facie
evidence of war crimes in the files of 154 further suspects. Therefore,
it recommended that 606 files be closed.
In a further 97 cases, the
Commission could not find prima facie evidence of war crimes, but
believed that such evidence might exist in East European countries. The
decision of whether or not to circulate these files abroad was left up
to the government. Some 34 cases on the master list were outstanding because
answers had not been received from foreign agencies. Time constraints
had also prevented the Commission from fully investigating the 38 cases
referred to it after October 1986 and the list of German scientists and
technicians.
The Commission found prima
facie of war crimes in just 20 cases, and, in a confidential Part
II to the Report, made detailed recommendations to the government about
how to proceed in each case.
To deal with the problem of bringing war
criminals to justice, the Report recommended amendments to the Criminal
Code to make prosecution possible in Canada, amendments to the Extradition
Act and treaties of extradition to facilitate removal of individuals
sought by foreign countries for war crimes, and amendments to laws and
procedures governing denaturalization (removal of citizenship) and deportation.
2. The Criminal Law
The Commission concluded
that the Criminal Code should be used as the vehicle for the prosecution
of war criminals in Canada. This would avoid the image of military courts
and wartime procedure; avoid the appearance of short-circuiting the Canadian
legal process or of downplaying the Charter of Rights and Freedoms;
and assert the primacy of the rule of law. It therefore recommended that
section 6 of the Code be amended to make war crimes and crimes against
humanity a Canadian criminal offence even if committed outside Canada
and before adoption of the amendment:
(1.10) Notwithstanding
anything in this Act or any other Act,
a) where a person has
committed outside Canada, at any time before or after the coming into
force of this subsection, an act or omission constituting a war crime
or a crime against humanity, and
b) where the act or
omission if committed in Canada would have constituted an offence
under Canadian law,
that person shall be deemed
to have committed that act or omission in Canada if
c) the person who has
committed the act or omission or a victim of the act or omission was,
at the time of the act or omission,
(i) a Canadian citizen,
or
(ii) a person employed
by Canada in a military or civilian capacity; or
later became a Canadian
citizen; or
d) the person who has
committed the act or omission is, after the act or omission has been
committed, present in Canada.
Under the amendment, only
the Attorney General of Canada would be able to institute proceedings.
3. Extradition and Treaties
of Extradition
To overcome the difficulty
created by the absence of a treaty of extradition with certain countries
that might have an interest in trying war criminals now living in Canada,
the Commission recommended that section 36 of the Extradition Act
be amended to apply to war crimes committed before, and not only after,
extradition treaties came into force.
The 1967 Extradition Agreement
between Canada and Israel contains two obstacles to the extradition of
Nazi war criminals to Israel: the offence leading to extradition must
have been committed within the territory of Israel, and must have been
committed after the signing of the agreement (1967). The Commission recommended
that the restriction as to the date of the offence be abrogated and that
executive discretion be permitted when extraterritorial jurisdiction is
asserted.
4. Denaturalization
and Deportation
Under Canadian law, Canadian
citizens cannot either be deported or have their citizenship revoked.
Naturalized citizens, however, can lose their citizenship, and hence become
liable for deportation, if it can be shown that citizenship was obtained
as a result of "false representation or fraud or concealment of material
circumstances." Thus the process of denaturalization and deportation
could be used in appropriate cases as a means of ridding Canada of war
criminals. In cases of suspected Nazi war criminals, the Commission recommended
that the deportation hearing be elevated to the level of the judicial
process, as is the case in denaturalization proceedings. Since these processes
could take years to accomplish if carried out consecutively, the Commission
recommended that the two hearings be held before the same authority, provided
that the denaturalization phase proceeded and was decided first, and that
the "findings of facts" in the denaturalization phase be held
as "conclusive" with respect to the deportation phase. Furthermore,
judicial appeals should be denied or, at most, a single appeal provided
for against the denaturalization/deportation proceedings.
To prevent the granting
of citizenship to war criminals and/or to make its revocation easier in
the case of war criminals, the Commission recommended amendments to the
Citizenship Act and the Immigration Act. To the same end
it also recommended that immigrant applicants be asked specific questions
about their past military, para-military, political and civilian activities,
and that a written, signed record of the applicants answers be kept
during her or his lifetime.
5. The Response of the Government
In its initial response,
the Government pledged itself, wherever possible, to deal with the problem
of war criminals in Canada. The Criminal Code would be amended
to give Canadian courts jurisdiction. But the Government rejected action
with retroactive effect to amend procedures of extradition, denaturalization
and deportation. Within a week, the Government appointed an Assistant
Deputy Minister to head the Justice Departments investigation of
the 20 suspects and promised to introduce amendments to the Criminal
Code as soon as possible.
F. War Crimes Prosecutions
1. Criminal Prosecutions
In early November 1987 some
participants at an international conference marking the 40th anniversary
of the Nuremberg trials expressed concern that, ten months after Mr. Justice
Deschênes had submitted his report, no charges had been laid. Within six
weeks, the first war crimes charges had been laid: Mr. Imre Finta was
charged with involvement in kidnapping and manslaughter while a mounted
police captain during World War II. His trial before a jury of the Ontario
Supreme Court ended in acquittal, a verdict which was upheld by the Ontario
Court of Appeal in late April 1992 and by the Supreme Court in March 1994.
Michael Pawlowski was charged
on 18 December 1989 with eight counts of murder -- four under the Criminal
Code provisions dealing with war crimes and four under provisions
dealing with crimes against humanity. He was accused of killing about
410 Jews and 80 non-Jewish Poles in the Soviet Republic of Byelorussia
in the summer of 1942. Two separate judges refused to allow the prosecution
to send a judicial commission to the Soviet Union to collect evidence,
finding that the introduction of such evidence would prejudice Mr. Pawlowskis
right to a fair trial. The ruling of Justice Chadwick was appealed to
the Supreme Court, which, without stating the reasons, refused to entertain
the appeal in early February 1992. Unable to convince essential witnesses
to change their minds about coming to Canada to testify, the Crown was
forced to drop the charges and to contribute to Pawlowskis legal
costs.
In January 1990, Stephen
Reistetter became the third person to be charged under the War Crimes
provisions of the Criminal Code. It was charged that in 1942, while
serving as an official of the Hlinka party in war-time Slovakia, he had
kidnapped 3,000 Jews in order to send them to Nazi death camps. In February
1990, an Ontario Supreme Court Judge ordered that a commission travel
to Czechoslovakia to take testimony from elderly witnesses. On the eve
of pre-trial arguments the federal government abruptly dropped charges
against him on the grounds that they no longer had sufficient evidence
to proceed.
By mid-May 1992, the Crowns
special war crimes unit had failed to secure convictions in any of the
three prosecutions that had proceeded under the 1987 amendments to the
Criminal Code adopted to allow the trial of war criminals in Canada.
The failure to convict those charged and the very slow progress being
made in investigating and laying charges in other cases led to renewed
accusations that the government lacked commitment in its pursuit of Nazi
war criminals. This impression was strengthened when the Minister of Justice
said that the department wanted to conclude these investigations by March
1994.
In late November 1992, the
Institute for International Affairs of Bnai Brith released a detailed
study of the prosecution of Nazi war criminals in Canada. The report was
harshly critical of the government for its failure to convince public
opinion of the need for war crimes legislation and the aggressive prosecution
of war criminals, of the prosecutors of the Justice Departments
war crimes unit for being overly cautious and waiting for the perfect
case before laying charges, and of the judges who had presided over the
trials and appeals for the quality of their decisions and for delays in
rendering decisions. Since criminal prosecutions had failed to result
in convictions and time was running out, the report recommended giving
priority to denaturalization and deportation proceedings. The government
had already succeeded in using denaturalization and deportation proceedings
to deal with the case of Jacob Luitjens, who, the courts found, had probably
given immigration authorities false information about his wartime activities
as a member of the Dutch Nazi party and about his conviction in absentia
by a Dutch court in 1948.
Senior prosecutors with
the war crimes unit defended their work by noting that it was difficult
to appreciate the effort and time required to assemble a case in a decades-old
crime. Key witnesses died, as did suspects. Documents were lost or hard
to locate and some officials in eastern Europe would prefer to pursue
former communist officials rather than old Nazis. The difficulty of securing
criminal convictions was underscored in July 1993 when the Israeli Supreme
Court unanimously ruled that it had not been proved beyond reasonable
doubt that John Demjanjuk was the sadistic Nazi death-camp guard Ivan
the Terrible, and consequently overturned his conviction.
In December 1992, Radislav
Grujicic, a former Yugoslav police officer stationed in Belgrade during
World War II, was charged with 10 counts of murder, with conspiracy to
murder and with conspiracy to kidnap. The charges related to his alleged
participation in the classification of persons suspected of communist
activities, ideology or sympathy, and who, as a result of this classification,
were executed. His trial began in April 1994, but the Crown stayed proceedings
in September due to Mr. Grujicics ill health.
In late December 1992, the
war crimes unit also let it be known that it was selecting 20 cases for
priority investigation over the next 15 months. As many as possible would
be charged with war crimes and crimes against humanity; action would be
taken to deprive others of their Canadian citizenship, so that they could
be deported. The results of the most promising investigations were forwarded
to the new Justice Minister who completed his review of the dossiers in
July 1994, recommending that some cases be held for further investigation
and possible prosecution, and that others be forwarded to the Immigration
Minister. By the time the Justice Minister made his announcement, the
possibility of securing criminal convictions for war crimes and crimes
against humanity in the World War II era, already remote because of the
passage of time and the high standard of proof required, had been further
reduced by a Supreme Court decision.
On 24 March 1994, the Supreme
Court of Canada upheld the acquittal of Imre Finta in a narrow 4-3 decision.
The Court ruled on a wide range of issues raised both at the trial and
at the Ontario Court of Appeal. Some of these rulings will have an important
influence on future prosecutions.
The Supreme Court dismissed
a number of challenges to the sections of the Criminal Code that
establish Canadian jurisdiction over crimes against humanity and war crimes
committed outside Canada by deeming such crimes to have taken place in
Canada. Critical to the prosecution of World War II era offences was the
finding that the long delay - some 45 years before charges were laid -
did not violate the Charter principles of fundamental justice, the right
to trial without unreasonable delay, and the right to be presumed innocent.
The Court found that the delay was much more likely to be prejudicial
to the Crowns case than to that of the defence. The Court also held
that the provision of the law that denies the accused the defence of obedience
to de facto law (a defence available in regular domestic prosecutions)
did not contravene the Charter.
Although the judgment validated
the legislation dealing with war crimes and crimes against humanity, it
appears to have made conviction very difficult. The Supreme Court accepted
the "peace officer and the military orders defences" put to
the jury. The rationale for these defences is that a realistic assessment
of police or military organizations requires an element of simple obedience
and some degree of accommodation to those who are members of such bodies.
Essentially, obedience to a superior order provides a valid defence unless
the act is so outrageous as to be manifestly unlawful. Further, an accused
will not be convicted of an act committed as a result of an order that
he or she had no moral choice but to obey.
The Court found that the
accused could not be denied the peace officer defence under section 25
of the Criminal Code; however, this defence could be invoked only
in cases where the law was not manifestly illegal by international standards.
The peace officer defence would not be available if a reasonable person
in the accuseds position must have known that his or her actions
had the factual quality of a crime against humanity or a war crime. If,
however, the accused acted honestly, and had, on reasonable grounds, believed
his or her actions to be justified, the defence would be available.
The Supreme Court of Canada
decision dismayed those seeking the prosecution of war crimes and crimes
against humanity, particularly groups seeking prosecution of crimes from
the World War II era. In late April the Canadian Holocaust Remembrance
Association and the League for Human Rights of Bnai Brith Canada
both submitted arguments requesting that the Supreme Court re-hear the
appeal. They wanted the Court to re-consider its reliance on untested
evidence to give "an air of reality" to the defences of obedience
to superior orders and mistake of fact. Introduction of this evidence
could also leave the impression that the existence of public expressions
of racial prejudice at the time of the alleged crime could help determine
the issue of the mens rea of the accused. Finally, it was argued
that the Courts acceptance of obedience to superior orders and mistake
of fact in the circumstances of Finta, as well as the Courts
interpretation of the requisite elements that the Crown must prove, would
make successful prosecution of war crimes and crimes against humanity
very unlikely.
In a rare step, on 10 May
1994 the Attorney General of Canada supported the request for a re-hearing
of the Finta appeal; however, the Supreme Court turned down the
request. In late January 1995, the Department of Justice announced that
the size of its War Crimes Unit would be reduced from 24 to 11. The Unit
would also lose its long-time Director and in future would de-emphasize
new investigations and concentrate on completing investigations of priority
files.
2. Civil Proceedings
The failure to secure any
criminal convictions in the cases brought to court, the defence opened
up by the Supreme Court decision, and the reduction in the size and status
of the War Crimes Unit have virtually ruled out any further criminal proceedings
for crimes from the World War II era. Attention has therefore become focused
on the only remaining way of "punishing" suspected war criminals:
initiating civil proceedings to strip them of their Canadian citizenship
as a prelude to seeking their deportation. In some 12 cases referred to
the Immigration Minister, it had to be decided whether there was sufficient
evidence that the accused war criminals or collaborationists had obtained
entry to Canada by concealing information from and lying to security and
immigration officials.
The government began proceedings
against the twelfth of this group in July 1997 and by early October 1998
had initiated proceedings in a further three cases. Death due to old age,
however, has been almost as successful as federal prosecutors in dealing
with the accused: three have died while their cases were underway; two
have decided not to oppose proceedings and have left the country; one
has been found guilty of concealing material circumstances, and one has
been found not guilty. The current status of the 15 cases is as follows:
a.
Accused Who Have Died
Antanas Kenstavicus died
in January 1997, just before his case was to go to trial. In April 1995
Joseph Nemsila, a landed immigrant who had never applied for citizenship,
was accused of commanding a unit that had deported Jews to Auschwitz and
killed Slovak civilians. His deportation proceedings were delayed in July
1995 when an immigration adjudicator ruled that Nemsila had acquired Canadian
domicile and was protected under section 123 of the Immigration Act
from being deported for any pre-1978 activities for which he could not
have been deported at that time. On appeal this ruling was overturned
by Justice James Jerome. The latters ruling was also appealed, but
the Federal Court of Appeal decided not to release its decision following
Nemsilas death in April 1997. Erich Tobias, accused of having concealed
his participation in the execution of Jews in Latvia, died after the Supreme
Court ruled in September 1997 that his case could proceed (see below).
b. Accused Who Have
Voluntarily Left the Country
Ladislaus Csizsik-Csatary
was accused of involvement, while a member of the Royal Hungarian Police
in 1944, in the confinement of thousands of Jews and their subsequent
deportation to death camps. In July 1997, just before his trial was to
begin, he decided not to oppose the loss of his citizenship. He has since
left the country. Mamertas Maciukas, accused of concealing membership
in a Lithuanian police battalion which had committed crimes against civilians,
also decided not to contest the proceedings and voluntarily left the country.
c. Accused
Found to Have Concealed Material Circumstances
In February 1998, Judge
McKeown, of the Trial Division of the Federal Court, found that Wasily
Bogutin had concealed his participation, while a volunteer policeman in
German-occupied Ukraine, in the execution of civilians and in the arrest
of civilians for deportation to forced labour camps. The Cabinet has issued
the formal order withdrawing Bogutins citizenship and has ordered
him to leave the country; however, deportation proceedings could drag
on for years, as they did in the cases of Jacob Luitjens and Joseph Nemsila.
d.
No Probable Concealment of Material Circumstances Established
In September 1998, Judge
McKeown found that Peteris Vitols had not concealed his membership in
the Latvian Army or Waffen SS and that on entry to Canada he may not have
been asked about his membership in volunteer police organisations or about
his wartime activities. Judge McKeown found no evidence that Vitols had
personally committed war crimes; furthermore, the definition of "collaborator"
was poorly drafted at the time Vitols was processed and security officials
were using their discretion as to whether or not to "clear"
low level collaborators who could otherwise be considered desirable immigrants.
e.
Ongoing Proceedings
Proceedings against three
of the accused were held up by long delays in rendering verdict and by
the improper conduct of a senior Justice Department official. The cases
against Erich Tobias, accused of having concealed his participation in
the execution of Jews in Latvia, Helmut Oberlander, accused of participation
in the execution of civilians as a member of the German Einsatzcommando,
and Johann Dueck, accused of concealing similar activities as a policeman
in German-occupied Ukraine, were tried before Associate Chief Justice
James Jerome of the Federal Court. In early March 1996, an Assistant Deputy
Attorney General complained personally and in writing to Chief Justice
Julius Isaac about the length of time it was taking Justice Jerome to
render verdict. The official also stated that the government would transfer
the cases to the Supreme Court if they were not expedited. The Chief Justice
replied that Justice Jerome had agreed to speed up work on his decisions.
When news of the private meeting and letter became public, Justice Jerome
resigned from the cases. His successor, Justice Cullen, ruled that judicial
independence had been infringed and ordered a halt to the proceedings.
The Federal Court of Appeal overturned the stay of proceedings, a ruling
that was upheld by the Supreme Court in a ruling of September 1997. Since
then, Tobias has died. Judge Noel, of the Federal Court, has ruled that,
since the proceedings are civil, not criminal, the two remaining accused
can be formally questioned in advance of their trials and the defence
must disclose the position they will take at the revocation hearings.
At the beginning of his
hearings in October 1998, the government abruptly withdrew allegations
that Dueck had been personally involved in the arrest and execution of
civilians. The Oberlander hearings are expected to conclude early in 1999.
-
Vladimir
Katriuk, accused of concealing his participation in actions against
partisans and atrocities against civilians while a policeman in Byelorussia,
is awaiting the judges decision following completion of the
hearings;
-
Serge Kisluk,
accused of concealing membership in a police unit that committed atrocities
in German-occupied Ukraine, is also awaiting a decision;
-
Eduards
Podins, accused of concealing his past as a concentration camp guard
in Latvia, is scheduled for hearings in November 1998;
-
Wasyl Odynsky,
accused of failing to divulge his role as a guard in forced labour
and concentration camps in Poland during 1943 and 1944, is scheduled
for hearings in November 1998;
-
Michael
Baumgartner, accused of concealing his membership in the Waffen SS
and work as a guard at concentration camps in Poland and Germany,
is scheduled for hearings in November 1998; and
-
Ludwig Nebel
faces deportation proceedings for concealing his illegal Nazi activities
in his native Austria in the early 1930s and his command of a "resettlement
action" while a police lieutenant in Galicia during the war.
The latter action led to the arrest and detention of more than 200
Jewish civilians, and their later surrender to the Gestapo.
The Federal Court has been
severely criticized for its handling of the proceedings against accused
war criminals of the Second World War era. Until March 1997, undue delay
in rendering decisions was the most common complaint. Since then, however,
the reputation of the Federal Court has been severely shaken by the appearance
of collusion between government officials and the members of the Court
in the incident referred to above, and by a series of related reports.
These included the reported withdrawal of another Federal Court judge
from the three cases because he spoke privately with a federal lawyer
over scheduling and the suggestion that yet another judge would not be
assigned to the cases because she had written to the Justice Minister
defending Judge Cullen and expressing shock that she might be liable to
"vitriolic attacks" if she made a decision unfavourable to the
government. The original judge, Judge Jerome, has been formerly reprimanded
by the Canadian Judicial Council for his tardiness. Moreover, documents
have been released claiming that the contacts between the Chief Justice
and the government official were more extensive than reported. A previous
head of the War Crimes Unit has alleged that the Chief Justice had put
himself in a conflict-of-interest situation by involving himself in the
three cases because, as Assistant Deputy-Attorney General in the Department
of Justice from 1987-1989, he had prior knowledge of the proceedings against
the three. Together, all the above reports raised the question of whether
the Federal Court was capable of trying these and the other cases in a
just and expeditious manner.
These doubts have been only
partially dispelled by the rulings of Judge McKeown in the Bogutin and
Vitols cases. Initially, the success of the Bogutin prosecution was welcomed
as a sign that decisions would be expedited. The decision in the Vitols
case, however, proved how very reluctant judges might be to find against
those not accused of personal involvement in war crimes, but rather of
collaboration with the Nazis against the Soviet forces who had overrun
their countries or of membership in an organisation that had collaborated
with the Nazis against the occupying Soviets. In the latter case, Judge
McKeown established that the offence of collaboration was poorly defined
and not really applicable in the Baltic countries. He said that immigration
officials had exercised a wide discretion over whether or not to admit
those who had collaborated into Canada; they had been more concerned about
denying entry to Communists and Communist sympathisers than to Baltic
nationalists who had collaborated with the Nazis. Thus in some circumstances,
collaborators would not have had to lie about, misrepresent or conceal
their wartime service and activities in order to gain admission to Canada.
PARLIAMENTARY ACTION
On 6 March 1979, Mr. Robert
Kaplan, MP (York Centre) began debate in the House of Commons on Private
Members Bill C-215, an Act respecting war criminals in Canada, a
proposed amendment to the Citizenship Act that would have deprived
convicted war criminals of Canadian citizenship. The bill had received
first reading on 30 October 1978 and proposed:
1. The Citizenship
Act is amended by inserting, immediately after section 9 thereof,
the following new section:
9.1 Notwithstanding any
other Act, every person convicted of an offence pursuant to section
3 of the Geneva Conventions Act thereby ceases to be a Canadian
citizen.
The explanatory note accompanying
Bill C-215 read as follows:
The purpose of this Bill
is to provide for the loss of Canadian citizenship by any person convicted
as a war criminal, that is, of a "grave breach" of the Geneva
Conventions of 1949.
These conventions were
implemented in Canada in 1965 by the Geneva Conventions Act.
"Grave breaches" meant, among other things, wilful killing,
torture or inhuman treatment, including biological experiments, and
wilfully causing great suffering or serious injury to body or health.
The proposed amendment was
not adopted and the bill was withdrawn.
As originally introduced
by the government in 1980, the proposed Charter of Rights and Freedoms
(sections 11(e) and (f)) contained provisions against retroactive criminalization
and double jeopardy that, it was felt, might operate to prevent prosecutions
of war criminals living in Canada. Amendments were introduced to eliminate
this potential constitutional impediment to such prosecutions under existing,
amended or new legislation.
In March 1985, during study
by the Standing Committee on Justice and Legal Affairs of Bill C-18: An
Act to amend the Criminal Code, etc., an attempt was made to introduce
amendments to the Criminal Code dealing with war crimes and crimes
against humanity. Three of the five motions were ruled out-of-order as
going beyond the scope of the bill, one was defeated and one withdrawn.
The same pattern of rejection was repeated during third reading of the
bill on 14 April.
The government tabled Bill
C-71, An Act to amend the Criminal Code, the Immigration Act, 1976 and
the Citizenship Act, on 23 June 1987 some six months after it received
the report of the Deschênes Commission. Royal Assent was received on 16
September 1987. The amendments to the Criminal Code make it clear
that Canada can exercise jurisdiction over crimes against humanity and
war crimes committed outside Canada by deeming that such crimes took place
in Canada.
Clause 1 states that the
crime must be committed by a Canadian citizen or an employee of Canada
in a civilian or military capacity; by a citizen of, or an employee in
a civilian or military capacity of a country with which Canada is at war;
or must affect a victim who is either a Canadian citizen or a citizen
of an allied state while Canada is at war. Clause 1 also contains a more
general provision that reads:
(b) at the time of the
act or omission, Canada could, in conformity with international law,
exercise jurisdiction over the person with respect to the act or omission
on the basis of the persons presence in Canada, and subsequent
to the time of the act or omission the person is present in Canada.
The meaning of this sub-section
is opaque. Its most likely intention would seem to be to provide that
a person present in Canada might be prosecuted if by international law
Canada could have exerted jurisdiction over that person at the time of
the act or omission.
The amendments to the Criminal
Code further stipulate that prosecution requires the personal consent
of the Attorney General of Canada, or his or her Deputy, and can be conducted
only by the Attorney General or his or her Counsel; that the defence of
previous trial and conviction for the offence does not apply where the
trial was held outside Canada in absentia and the accused was not
punished in accordance with the sentence imposed by the court; and that
the defence that the action was legal when and where committed does not
apply where that action at the time constituted a contravention of customary
or conventional international law.
The amendments to the Immigration
Act make a person inadmissible to Canada if there are reasonable grounds
to believe the person committed a war crime or a crime against humanity;
make a permanent resident removable if he or she is a war criminal and
was granted landing after the Act came into force; and allow the Minister
to select the country to which the person is removed.
The amendments to the Citizenship
Act add to existing circumstances that bar Canadian citizenship; namely,
being under investigation for war crimes or crimes against humanity, or
having been charged with, on trial for, or convicted of such crimes.
In the House of Commons,
the bill was debated very briefly during second reading on 20 August 1987,
and immediately referred to a legislative committee. Debate in committee
focused on clause 1(b) quoted above and on whether or not the committee
should adopt the wording of the similar provision in the Deschênes Report.
The bill was reported on 26 August without amendment and was adopted by
the House two days later. The bill moved quickly through the Senate, being
given first reading on 28 August and third reading on 15 September
before receiving Royal Assent on 16 September 1987.
Negotiations were completed
to enable Canada to collect evidence abroad under the guidelines established
by Mr. Justice Deschênes. Arrangements were made with Israel, the Soviet
Union, Czechoslovakia, Hungary, the Netherlands, Poland, Yugoslavia and
West Germany. The Department of Justice sought permission from these countries
to gather evidence against 32 of the 45 suspected war criminals living
in Canada.
CHRONOLOGY
1948 - The Cold War between
East and West began. The British advised an end to trials of war criminals.
1949 - Canada restricted
the immigration to Canada of ex-members of the Nazi party, the German
armed forces and collaborators. These restrictions were relaxed in subsequent
years and withdrawn in 1962.
1979 - Bill C-215, to
provide for the loss of Canadian citizenship by those convicted of war
crimes, was introduced, debated and withdrawn.
1980 - An interdepartmental
committee concluded that existing law was inadequate to bring war criminals
to justice.
1980 - The proposed Charter
of Rights and Freedoms was amended to eliminate potential constitutional
impediment to prosecutions.
February 1985 - Commission
of Inquiry on War Criminals was established under Mr. Justice Jules
Deschênes.
November 1985 - The Commission
established conditions for gathering evidence abroad, particularly in
the Soviet Union.
December 1986 - The Commission
submitted its report to the government.
March 1987 - The report
of the Commission was tabled, together with the initial response of
the Government.
16 September 1987 - Bill
C-71, an Act to amend the Criminal Code, the Immigration Act, 1976 and
the Citizenship Act, received Royal Assent.
December 1987 - The first
war crimes charges were laid against Imre Finta.
December 1989 - Michael
Pawlowski was charged with war crimes and crimes against humanity.
January 1990 - Stephen
Reinstetter was charged with kidnapping Jews in 1942.
May 1990 - Imre Finta
was acquitted by a jury. The verdict was appealed by the Crown.
March 1991 - The charges
against Stephen Reistetter were dropped.
22 October 1991 - Judge
Collier of the Federal Court upheld the governments decision to
revoke the citizenship of Jacob Luitjens. Shortly thereafter, the government
announced it would begin deportation proceedings.
February 1992 - The Supreme
Court of Canada refused to hear the Crown appeal from Judge Chadwicks
ruling in the Pawlowski case. Charges had to be dropped.
April 1992 - The Ontario
Court of Appeal rejected the Crowns appeal against the acquittal
of Finta. The Supreme Court heard the Crowns appeal in June 1993.
It upheld the acquittal in March 1997.
December 1992 - Radislav
Grujicic was charged. His trial began in April 1994.
July 1995 - An immigration
adjudicator ruled that Josef Nemsila could not be deported because he
had acquired "domicile" and was protected under section 123
of the Immigration Act. The ruling was overturned by the Federal
Court before Mr. Nemsila died.
July 1996 - A Judge halted
the proceedings against three accused, on the grounds that a meeting
between a senior official and the Chief Justice of the Federal Court
had infringed on the independence of the judiciary. The ruling was
overturned on appeal, a reversal that was upheld by the Supreme Court.
February 1998 -
A judge ruled that Vasily Bogutin had gained admission to Canada
by false representation or fraud or by concealing material circumstances.
September 1998 -
A judge ruled that the Crown had not established that Peteris Vitols
had gained admission by false representation, fraud or concealment of
material circumstances.
SELECTED BIBLIOGRAPHY
Canada (Minister of Citizenship
and Immigration) v. Vitols
(23 September 1998).
Citizenship and Immigration.
Public Report: Canadas War Crimes Program. July 1998.
Commission of Inquiry on
War Criminals. Report, Part 1: Public. Minister of Supply and Services,
Ottawa, 1986.
Fenrick, W.J. "The
Prosecution of War Criminals in Canada." Dalhousie Law Journal,
Vol. 12, November 1989, p. 256-297.
Immigration and Refugee
Board (Adjudication Division). Minister of Citizenship and Immigration
and Jose Nemsila. 18 July 1995.
Littman, Sol. "War
Criminals in Canada: An Introductory Study." Unpublished study commissioned
by the Solicitor General.
Matas, David. "Nazi
War Criminals in Canada: Five Years After." Institute for International
Affairs of Bnai Brith Canada, revised version, December 1992.
McKenzie, James E. War
Criminals in Canada. Detselig Enterprises, Calgary, 1995.
Rodal, Alti. Nazi War
Criminals in Canada: The Historical and Policy Setting from the 1940s
to the Present. Unpublished manuscript prepared for the Commission
of Inquiry on War Criminals, September 1986
Silverstone, Jack. "War
Criminals in Canada: Legislative Options." BP-24E Library of Parliament,
Ottawa.
Supreme Court of Canada.
Her Majesty the Queen and Imre Finta. Motion for Rehearing, Memorandum
of Argument of the Appellant. File No. 23023/23097.
* The
original version of this Current Issue Review was published in January
1987; the paper has been regularly updated since that time.
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