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Posted Wednesday, October 21, 1998


Canadian Judges Need More "Education"

The Toronto Star

Tuesday, Oct. 20, 1998

[Editorials & Opinions, page A22]

War Crimes

Do our jurists need Holocaust classes?


THE CANADIAN effort to prosecute World War II war criminals has been severely plagued by governmental callousness, lack of experience and internal conflict. The government's recent loss of the Vitols case indicates that the infection continues unabated.

For 40 years after World War II the Canadian government was vastly indifferent to the presence of hundreds of Nazi war criminals who found Canada a ready haven. The political leaders who had refused Jewish immigrants because they didn't like Jews, were reluctant to punish those who had attempted to exterminate them.

Finally, pressured into action by a Royal Commission of Inquiry, the Justice Department established a special unit for war crimes prosecutions. But from the start, the special unit was beset with counter-productive policies, internal dissensions and quirky court decisions. Case after case was lost or withdrawn.

From Federal Court to the Supreme Court of Canada, Canadian judges seem to be rudderless, unaware of the precedents established in war crimes cases by the International Nuremberg Tribunal, hundreds of German court cases and trials in Holland, Belgium and the United States.

For example, the judge in the Pawlowski case refused to accept commissioned evidence gathered in the Soviet Union. The Supreme Court, ruling in the Finta case, accepted Finta's plea that he was "only following orders," a defence rejected at the Nuremberg trials and all subsequent war crimes cases. In the Reistetter case, the crown dallied so long that a key witness died and a second failed to appear because of bad health. Although warned well ahead of time that the defendant was too sick to stand trial, the crown insisted on putting Grujicic on trial. Midway through the proceedings, the judge stayed the charges because the accused was clearly too ill to assist in his own defence.

The Luitjens case was a landmark, the first, and for some time, the only war crimes case won by the crown. Although well-argued, the judge took a remarkable 2 1/4 years to hand down his decision. Eventually, the accused was stripped of his Canadian citizenship and returned to Holland to finish the jail term imposed by the Netherlands authorities. The prosecution of three important cases (Tobiass, Dueck and Oberlander), was endangered in a fracas over judicial independence and the need for expeditious scheduling of war crimes cases. In the end, the cases went ahead but valuable time was lost and energies wasted in a series of appeals and counter-appeals.

The Nemsila case almost ground to a halt when an immigration adjudicator accepted the dubious argument that the accused, having lived in Canada for five years was "landed" and could no longer be expelled. It took months of work and repeated appeals to prove that an illegal entry did not merit the state's protection.

Earlier this month, Federal Court Justice William McKeown ruled that former Latvian SS officer Peteris Arvids Vitols was not guilty of withholding vital information when he failed to tell Canadian immigration officers that he had been a member of two German-led auxiliary police battalions that were responsible for the slaughter of hundreds of innocent civilians. The judge found "credible" Vitols' claim that he did not participate in any of the atrocities that raged in Latvia under Nazi occupation, that he was nothing more than a "clerk" in one of the deadliest police battalions in Latvia.

The long list of lost cases and decisions dispensed by judges and immigration adjudicators reminds us that judges like the rest of us are not all wise. It took considerable effort to help Canada's jurists to realize that domestic assault was not acceptable and that stalkers who threaten to kill frequently succeed in doing so. It took considerable education to teach our judges that prostitutes deserved the full protection of the law against brutal pimps and sadistic johns.

In similar fashion, our judges none of whom experienced first hand the heaped, emaciated bodies of concentration camp victims seem unaware of the utter brutality of the Nazis' crimes. As professional jurists, they seem to know little of the legal precedents set in Germany, Holland, Belgium, and the United States.

It is important to note that the United States has rescinded the citizenship of some 60 war criminals in the past 20 years. In contrast, Canada's score over the past 10 years is minuscule. Two of those named agreed to leave Canada rather than go to trial and three died from natural causes before their trials could be completed. So far only two men, Luitjens and Kalejs, have been deported.

U.S. courts are no less rigorous in their pursuit of due process than our Canadian courts. But American judges seem more aware of the horrors inflicted on the Holocaust's victims and better informed regarding the legal precedents established by foreign courts. Perhaps it is time our judges and immigration adjudicators went back to school.

Perhaps they could participate in seminars arranged by our leading law schools that would deal with the history of the Holocaust and the important precedents set in key war crimes trials since the end of the war.

In this way, Canadian judges may be convinced of the seriousness of war crimes cases and avoid the unpredictable, offbeat decision-making we have so far experienced. 

Sol Littman is Canadian director of the Simon Wiesenthal Centre.
The above news item is reproduced without editing other than typographical

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