Alex Constantine - April 15, 2010
The Struggle for Justice: Nazi War Criminals in Canada
By David Matas
From: Immigration To Integration
The Canadian Jewish Experiece:
A Millennium Edition
The fight to bring Nazi war criminals to justice in Canada has been a galvanizing force in shaping the human-rights agenda of the Jewish community. The fact that by the end of the twentieth century this struggle had been largely unsuccessful has had a profound effect on the community’s collective consciousness. For in the haven of Canada, the immigrant expected to see justice done. As a community, the disappointment has been palpable.
This essay will focus on three areas: an examination of the specific parameters of the Nazi war-criminal issue; an analysis of early efforts to bring these criminals to justice; and, a legal critique of the domestic remedies that are currently available in terms of bringing all war criminals to justice, as well as suggestions for possible solutions.1
Canada as a Haven
Mass murderers flee. Their preferred destinations are countries of immigration, which means, primarily, Canada, the United States, and Australia. These countries are far from the crimes. They often do not have extradition treaties with the states in whose territories the crimes were committed. Because of the large immigration flows into these countries and their substantial emigré populations, it is easy for the fugitives to blend in and disappear. These countries are thus magnets for war criminals from around the world, and Canada is no exception.
When Nazis war criminals targeted Canada as a preferred destination, Canada was ill-prepared for the infiltration. The result was that thousands entered using the existing immigration channels. By a conservative estimate, approximately two thousand Nazi war criminals entered Canada after World War II.2 Imagine the devastation of Jewish Holocaust survivors when they learnt that perpetrators of the crimes against them in Europe were numbered among their new neighbours.
Once the war criminals had arrived, they were home free. Canada, for decades, gave safe haven to mass murderers. The criminals were neither prosecuted, extradited, deported, nor were they denaturalized or required to pay damages, restitution, or compensation.
Canada has had a system of total immunity, not just for Nazi war criminals, but for all war criminals. That system was constructed at a time when the primary, if not the sole, beneficiaries, were Nazi war criminals. Over time, however, that immunity has come to benefit many other war criminals.
Canadian police developed a stated policy of immunity, of no investigation, that had Nazi war criminals in mind, but was general in nature. In 1962 the Royal Canadian Mounted Police stated that, as a policy, in light of the existence of allegations that there are war criminals in Canada, “investigations into allegations of this nature are not to be conducted by the Force.”3
The primary reason for giving immunity to Nazis was political. The Western Allied powers decided in July 1948 to end the prosecution of Nazi war criminals prematurely, when only about half of the accused who were lined up for prosecution had been brought to trial.4 Moreover, there were many thousands who were not yet identified and not yet charged who would have been caught by a full-blown prosecution effort. The political motivation of the Western Allied powers was based on their belief that the prosecution of Nazi war criminals might make it harder to keep West Germany onside in the Cold War.
The Jewish Community Reacts
The Canadian Jewish community has had a natural and sustained interest in ending the immunity of Nazi war criminals complicit in the Holocaust, the murder of six million Jews in an attempt to exterminate the Jewish people. Nonetheless, the positions the Jewish community took have been general in nature, advocating that all war criminals in Canada should be brought to justice.
Since the Jewish community was the first victim of the Canadian post-war system of immunity for war criminals, it was also the first community to attempt to come to grips with ending that immunity. In doing so, it has run up against the limits of justice.
The outlook of the community has been profoundly influenced by the knowledge that - even if every last perpetrator of the Holocaust had been arrested, charged, prosecuted, convicted, and sentenced immediately after the crimes were committed - justice would have been incommensurate with the offences. The crimes were so massive that no measure of justice would have been a match for them. Giving a person the maximum punishment under the law for one brutal murder is as far as the justice system can go. When a person is responsible for hundreds or thousands of cold-blooded killings, justice reels. The Holocaust was a crime that no punishment could fit.
In Canada, by the time the government showed any willingness to do anything, decades had passed. Evidence had been destroyed, documents had been shredded, memories had faded, and witnesses - surviving victims and perpetrators alike - had died. Added to the mismatch between the crimes and possible justice was the difficulty of proof.
Yet for the Jewish community to throw up its hands would have meant allowing the victims to be murdered not once, but twice. First their lives would have been obliterated, then their deaths. Remembering the victims means remembering their murderers.
If there is one phrase that encapsulated the global response to the Holocaust, it was “Never Again.” To prevent genocide from reoccurring, a system of justice was necessary. For the Jewish community, building that system of justice was seen as a fitting legacy to the memory of the victims, a lesson learned, a monument to the hope that the future would not repeat the past.
My involvement in the cause of bringing Nazi war criminals to justice can be traced to my friendship with Kenneth Narvey, a contemporary from my undergraduate days at the University of Manitoba. By the late 1970s, operating out of Montreal, he had become a full-time researcher and advocate in the cause of bringing Nazi war criminals to justice. It was through his intervention that I became chair of the War Crimes Committee of Canadian Jewish Congress that Irwin Cotler, as Congress president, had set up. Cotler had campaigned for the presidency of Congress in 1980 on a platform of activism and advocacy. One of the issues he brought to his presidency and to Congress was advocacy on the issue of war criminals.
As chair of the Congress committee, I wrote a report on the legal remedies then available to bring Nazi war criminals in Canada to justice. The Cotler presidency expired before Congress had approved and released my report. His successor, Milton Harris, decided to take another tack on the war criminals issue and would not release the report as a Congress document. Congress first appointed Bert Raphael, and then Harris himself, as chair of the Congress War Crimes Committee. Harris remained in that position until he was succeeded by Irving Abella, who holds the position to this day.
My own involvement in the war-crimes issue continued in 1983 when I assumed the position of chair of the League for Human Rights of B’nai Brith Canada. With Congress’s permission, the report I had written was released in 1985 as a B’nai Brith League document.5 My involvement has continued since then in my role as honorary legal counsel for B’nai Brith Canada.
Robert Kaplan, a member of parliament from Toronto and solicitor general in the Trudeau government from 1980 to 1984, tried to push the Canadian government into ending the immunity of Nazi war criminals in Canada. He elicited extradition requests from Western governments and initiated the investigation of cases in Canada for that purpose. He pushed the investigation that eventually led to the arrest and extradition of Albert Helmut Rauca.
However, Kaplan was not able to do much more. There were factions within the government who wanted the original “do nothing” policy to be maintained. Trudeau’s own hand in all this is far from clear; the documents indicating his position have yet to be released. Nonetheless, it appears that he bore some responsibility, if not the major responsibility, for the government inertia during his years as prime minister.
The Deschênes Commission
Whatever the cause, the war-crimes dossier was frozen until Trudeau left power and until Sol Littman of the Simon Wiesenthal Centre in Canada held a press conference in January 1985 and released information indicating that Josef Mengele had applied to immigrate to Canada in 1962. Less than one month later, Prime Minister Brian Mulroney announced the creation of the Commission of Inquiry on War Criminals in Canada, to be headed by Mr. Justice Jules Deschênes. The Littman press conference was, in the words of Mr. Justice Deschênes, “the straw that broke the camel’s back; the matter (of war criminals in Canada) had to be clarified for once and for all.”6
B’nai Brith Canada was the first organization to be granted intervener status before the commission. Other organizational interveners were the Canadian Jewish Congress, the Ukrainian Canadian Committee, and a Waffen SS Division called the Brotherhood of the Veterans of the 1st Division of the Ukrainian National Army in Canada.
Many members of this Waffen SS Division had come to Canada as immigrants. The division sought standing in an effort to exonerate its members from accusations of war criminality. This exoneration was also a primary concern of the Ukrainian Canadian Committee. Justice Deschênes gave the division a clean bill of health.7 Howard Margolian, however, has argued that this exoneration was not deserved:
At least one of the police regiments into which divisional recruits were initially inducted appears to have perpetrated atrocities. That was Galician SS Volunteer Regiment No. 5, which was employed in anti-partisan operations in eastern Poland prior to its incorporation into the 14th SS. According to reports by the Armia Krajova (AK), the main Polish resistance army, the regiment was involved in several massacres of civilians during the first few months of 1944. Furthermore, a significant number of the division’s recruits, particularly those who served in Schutzmannschaft battalion nos. 204 and 206, appear to have perpetrated atrocities against Jews and communists during the early days of the German occupation. A few members of the 14th even served with German security police detachments in western Ukraine. In view of the brutality with which the Germans suppressed the Slovak National Uprising in the autumn of 1944, it is possible that elements of the division were implicated in crimes against civilians during its tour of duty in Slovakia. Finally, there are circumstantial links between the division and the Nazi concentration camp system. Contemporary documents reveal that both the division’s Heidelager and Hradischko training grounds were adjacent to forced camps. There is no direct evidence linking the division with the day to-day operation of the camps. Yet it would not have been unusual for Waffen-SS recruits to have taken guard and prisoner-escort training there.8
B’nai Brith ended up taking the Commission of Inquiry on War Criminals to court over the issue. Justice Deschênes had commissioned independent legal reports to assist him in his work and the League for Human Rights of B’nai Brith Canada asked for the release of those reports. When the judge refused, B’nai Brith went to Federal Court to ask that the court order the release of the reports. In February 1986 Mr. Justice Cullen of the Federal Court held that the reports did not have to be released. B’nai Brith appealed. Finally, in May 1986 the Federal Court of Appeal held that Judge Deschênes had to make the reports publicly available.
As a result of the Deschênes commission report, in December 1986 the government of Canada began the effort - more than forty years after the war - to bring Nazi war criminals in Canada to justice. This effort, still tainted by a Cold War psychosis, veered in the direction of prosecution in Canada. Extradition or deportation to Eastern Europe was, to the Canadian authorities, out of the question since there was no possibility of a fair trial in Eastern Europe. Communist governments often accused their opponents of Nazi collaboration when their real crime was anti-Communism. The Nuremberg tribunal had ended and there was no international criminal court to replace it.
The legislation allowing for the prosecution of war criminals and perpetrators of crimes against humanity came into force in 1987. The Crown began its prosecutions sequentially, rather than simultaneously, waiting to see how the precedents developed before launching new cases. Only four prosecutions were launched after the law came into force in 1987, although, at least according to the Deschênes commission, the candidates for potential prosecution numbered in the hundreds. None of the four cases led to a conviction.
The prosecution abandoned three cases after they began. They dropped the Stephen Reistetter case because a witness died. They dropped the case of Radislav Grujicic because Grujicic was too ill to stand trial. They dropped the Michael Pawlowski case after the trial judge refused to give the prosecution permission to collect videotape evidence abroad.
Finally, a jury acquitted Imre Finta after the trial judge gave the jury a highly contentious exposition of the law. First, the Ontario Court of Appeal and then the Supreme Court of Canada upheld the trial judge’s statement of the law. Mr. Justice Cory made a bizarre ruling in the Supreme Court’s majority decision:
It seems that the [war crimes] section was passed to bring to trial those who inflicted death and cruel suffering in a knowing, pre-meditated, calculated way. The essential quality of a war crime or a crime against humanity is that the accused must be aware of or willfully blind to the fact that he or she is inflicting untold misery on his victims. The requisite mental element of a war crime or a crime against humanity should be based on a subjective test.
This ruling made the prosecution’s task even more difficult than it would have been had the trial judge’s charge been read in isolation.
A Second-Best Remedy
The government concluded after the Finta decision that prosecution ceased to be practicable and shifted its efforts from prosecution to the revocation of citizenship and deportation of war criminals and criminals against humanity. By this time, the Iron Curtain had collapsed and the Cold War had ended. Deportations to Eastern Europe that had been politically impossible now became a viable alternative to prosecution.
But the revocation of citizenship and deportation are second-best remedies against war criminals, perpetrators of crimes against humanity, and torturers. In international law, the duty to extradite or prosecute is not met by denaturalization and deportation - neither proceeding can suffice as compliance with this duty. Furthermore, removal from Canada, without even an investigation for possible prosecution, may mean that the criminal escapes any penal justice system. There is no guarantee that these people will be prosecuted in the country to which they are removed; removal may mean no more than relocation of the criminal without punishment for the crime.
If the only consequence that torturers, war criminals, and others who are responsible for crimes against humanity face once they arrive in Canada is potential discovery and removal, they have every incentive to lie their way into the country. The most effective deterrence is prosecution, conviction, and sentencing. If Canada were doing this systematically, it is likely that we would see fewer perpetrators of atrocities trying to get into Canada.
Creating an International Response
With the advent of the International Criminal Court, the prosecution remedy in Canada revived. Canada was a leader in fashioning the International Criminal Court, established by a treaty that was finalized in Rome in July 1998. Once sixty states ratify the treaty, the court will come into being.
In order for Canada to ratify the Rome treaty, Parliament had to end the immunity for war criminals that the Supreme Court of Canada had created in the Finta case. It passed the necessary legislation on June 29, 2000, and the new law came into effect on October 23, 2000.
So, in principle, there are now procedures in place for the revocation of citizenship, deportation, and prosecution of war criminals. In May 1993 the United Nations Security Council created the International Tribunal for the former Yugoslavia9 and, in November 1994, the International Tribunal for Rwanda.10 These ad hoc tribunals allow for some measure of international justice for the crimes committed in those states and a global international criminal court is on the verge of creation.
Nonetheless, it would fly in the face of reality to say that the problem is solved, that systems are working, and that justice will now be done. The end of the millennium warrants an examination of the foundation and edifice of justice for bringing mass murderers in Canada to justice. What are the weaknesses? In spite of all the efforts of the Jewish community and others, is immunity still the practical result? What remains to be done to strengthen the structure of justice, to ensure that Canada in the twenty-first century does not continue to be what it was in the twentieth century, a safe haven for those whose crimes would not have been imaginable if they had not been committed?
The Task Ahead
The Jewish community has not abated its efforts to bring Nazi war criminals to justice, but it has thrown its energies into the wider struggles to address the issue of modern-day war criminals as well. As the twentieth century drew to a close, the Crimes against Humanity and War Crimes Act that became law in October 2000 was an important step for ending immunity in Canada. The new law expands the definition of crimes against humanity to include torture and sexual violence. The need to prove both a Canadian crime and an international law crime in order to convict is gone. The new act specifically addresses the grievous problem posed by the Finta11 case - that antisemitism, the racist vilification of Jews, can ever, in itself, be used as a defence of the Holocaust.12
However, the problem that Mr. Justice Cory posed in Finta, by saying that an accused had to intend inhumanity to be culpable, and that trial judge Archie Campbell had been right in saying that the accused must know that his act was inhumane, is not addressed. There must be provision in the act making it clear that non-state actors and heads of state can be prosecuted for genocide, war crimes, and crimes against humanity. As it stands, the act allows for a defence of superior orders for war crimes as long as the orders are not manifestly unlawful.13 This defence should not be in the law. It is specifically excluded in the Criminal Code for the crime of torture,14 and should also be excluded in the Crimes against Humanity and War Crimes Act. Furthermore, the act does not state specifically whether it is local law or international law that is relevant for the manifestly unlawful component of the superior orders defence. To avoid confusion, the legislation should say so. An accused should never be able to plead local law in support of a defence of superior orders.
In the Finta case, the Crown attempted, unnecessarily, to show that the Baky order - a Hungarian Ministry of the Interior order passed on April 7, 1944, that called for the isolation, complete expropriation, ghettoization, concentration, entrainment, and deportation of all Hungarian Jews - which Imre Finta pleaded in defence, was manifestly unlawful according to Hungarian law. Parliament should learn from these proceedings and shape its legislation accordingly, ensuring that such confusion will not arise again.
A Fragmented Approach
Government policy on torturers, war criminals, and perpetrators of crimes against humanity should be integrated and coherent, not fragmented and piecemeal - the remedies for bringing these people to justice should fit together. They should not necessitate repetitive litigation to resolve the same issue over and over again in different proceedings. Proving torture, a war crime, or crime against humanity even once is difficult enough. Government must make every effort to avoid a requirement that the existence of the crime must be reproved every time a different remedy is invoked.
Regrettably, the Canadian government approach to these issues has been anything but integrated. The fragmentation of policy is now acutely visible because, within a short period of time, four different bills changing the law on torture, war crimes and crimes against humanity have been introduced in Parliament, each dealing with a different legal remedy. The drafters of each bill seem almost completely oblivious to the others.
The first, Bill C-40, given royal assent on June 17, 1999, provides for extradition from Canada to foreign courts and surrender to international tribunals.15 The three other bills were all introduced in the very next session. Bill C-16 provided for revocation of citizenship. Bill C-19, which received royal assent on June 29, 2000, provides for the criminal prosecution of war crimes and crimes against humanity. And Bill C-31 provided for the war criminal’s removal from Canada.
It should not be necessary to prove torture, war crimes, or crimes against humanity three separate times, once in extradition or surrender proceedings for prosecution abroad or in criminal proceedings in Canada, a second time for the revocation of citizenship proceedings, and a third time in deportation or inadmissibility proceedings. The way the law stands now, even after all these various new bills and pieces of legislation are taken into account, these three separate steps are exactly what is required.
Under the present act and under proposed legislation,16 citizenship is revoked by the Governor-in-Council. The Federal Court only decides the factual issue of whether there was fraud, false representation, or knowing concealment of material circumstances that led to the granting of citizenship. War criminals should lose their citizenship as soon as they lose their court cases. Any legal protection given by the Governor-in-Council to the person concerned can also be given by the Federal Court Trial Division.
The Governor-in-Council can, admittedly, allow a person who hid his/her past in such a way that cut off inquiries about war crimes or crimes against humanity, to stay in Canada on humanitarian grounds, something the Federal Court cannot now do. Yet, no such person should ever be allowed to stay in Canada on humanitarian grounds.
The Governor-in-Council procedure should not be necessary Once the Federal Court has decided that a person has obtained his or her citizenship in a prohibited manner, the court should have power to revoke citizenship, subject to appeal.
The Legislative Response
A decision made by the Federal Court in revocation proceedings should also be conclusive for immigration proceedings. The case of Jacob Luitjens illustrates the problem. Luitjens lost his citizenship and was ordered deported by reason of misrepresentation of entry to Canada. At his immigration hearings, he insisted that the case made against him at citizenship proceedings be proved a second time. The end result of the immigration proceedings was obvious, given the result of the citizenship proceedings. Luitjens attempted to exploit a loophole in the system in order to delay the inevitable and string out the time he remained in Canada.
In response to the Luitjens dodge, Parliament changed the Immigration Act in 1993. A removal order can now be made for the sole reason that the person lost citizenship on the grounds that permanent residence had been obtained through fraud, false representation, or concealing material circumstances. In removal proceedings, there is no need to prove this fact a second time. It is enough just to file the revocation certificate and, provided revocation itself was decided because permanent residence was obtained through deception, that is the end of the matter.17
The case of Wasily Bogutin has shown us the need for further changes in the law. After having his citizenship revoked, Bogutin made a refugee claim. A person is ineligible to make a refugee claim if the Adjudication Division of the Immigration and Refugee Board finds that there are reasonable grounds to believe the person committed a war crime or a crime against humanity, and the minister of citizenship and immigration is of the opinion that it would be contrary to the public interest to have the refugee claim determined.18 According to the UN Convention Relating to the Status of Refugees, a person is further excluded from the refugee definition for those same reasons - that there are serious reasons for considering that the person has committed a war crime, or a crime against humanity.19 Before he died, Bogutin was undergoing ineligibility proceedings.
A person who makes a refugee claim, but is rejected, can stay in Canada pending an application for leave to the Federal Court Trial Division, even where the rejection is based on war crimes or crimes against humanity.20 However, if the Adjudication Division of the Immigration and Refugee Board finds that there are reasonable grounds to believe a person committed a war crime or a crime against humanity, the person is ineligible to apply for the post-determination refugee claimants in Canada class.21 Furthermore, if a person is found ineligible to make a refugee claim, the statutory stay of execution of the removal order operates for only seven days from the date the removal order becomes effective and not for the entirety of the consideration of an application for leave to the Federal Court.22
Bogutin, by making a refugee claim, highlighted a loophole in the system that the government had attempted to close off by its 1993 amendment to the Immigration Act in response to the similar delaying tactic by Jacob Luitjens. Bogutin managed to get a relitigation of the issues that had supposedly been decided in the revocation of citizenship proceedings.
The Citizenship Act bars citizenship to those who are subject to war crimes or crimes against humanity proceedings, or persons who have been convicted under such proceedings. However, it does not allow revocation of citizenship on the basis that the person was a war criminal or perpetrator of crimes against humanity at the time of granting of citizenship. If a person was such a criminal at that time, the citizenship can be removed only on proof that it was obtained by fraud, false representation, or knowingly concealing material circumstances. Proof that the person was a war criminal or guilty of crimes against humanity at the time citizenship was granted is not, by itself, enough.
The law should be changed so that a person can have citizenship removed whenever there are reasonable grounds to believe that the person committed war crimes or crimes against humanity before becoming a citizen. This should be the case whether the person was asked about the commission of war crimes and crimes against humanity when citizenship was acquired and whether citizenship was acquired before or after the change in the law proposed here. This proposed amendment would be akin to the Holtzman amendment in the United States that makes participation in persecution grounds for deportation.
Arnold Fradkin, a former member of the Justice War Crimes Unit who died tragically on January 2, 1999, wrote:
Without the actual immigration forms, testimony by the security screening officers who were actively involved at the time and place where the suspected Nazi war criminal or collaborators applied to enter Canada is critical. But increasing numbers of these officers are dying or becoming too sick to testify. Without them there may not be sufficient evidence to establish the circumstantial chain of proof that the suspected person lied to immigration authorities.
At this point in time, therefore, not only are the actual immigration forms not available, but now, frequently, the specific officers who dealt with those forms and could testify about them are not available either. The denaturalization proceedings finally reinstituted in 1995 may simply have been too late.23
A Proposal for Proceeding
Because of the difficulties today in proving fraud, false representation, or concealing material circumstances, the government needs an alternative means of proceeding. Proving that there are reasonable grounds to believe that a person has committed a war crime or crime against humanity will present its own difficulties, but at least the government will have a choice. It may well be that for one accused, the proof exists of commission of a war crime or crime against humanity, even if it does not exist for fraudulent entry to Canada. Under these circumstances, proof of that participation in persecution should be enough to take away citizenship without further need to prove fraud.
One advantage of adding the grounds for revocation proposed here is that it would allow Parliament to close off the loophole that Bogutin exploited. In order for Parliament not to be taken advantage of by those whose citizenship has been revoked for hiding their Nazi past, the Citizenship Act needs to be amended so that the grounds for ineligibility and exclusion in the refugee determination procedure are also grounds for the revocation of citizenship. Furthermore, there needs to be a consequential amendment to the Immigration Act, similar to the “Luitjens” amendment.
Revocation and deportation for Nazi war criminals and others who have committed crimes against humanity need to be consolidated to avoid repetitive procedures. Deportation should follow as a matter of course once citizenship is revoked. There should be no need for a separate immigration proceeding. In addition to amending the Citizenship Act to give the Federal Court Trial Division power to revoke citizenship, Parliament should amend the act to allow a Federal Court judge to order removal of a war criminal or perpetrator of crimes against humanity from Canada at the time that citizenship has been revoked.
Having two separate proceedings accomplishes nothing, but uses up time and resources. That is certainly true in a case where fraud, misrepresentation, or knowingly concealing material circumstances is the only issue at both the revocation of citizenship and deportation stage. The same is true where the only issue at both stages is whether there are reasonable grounds to believe that the person has committed a war crime or crime against humanity.
Criminal vs. Civil Remedies
What should be done with the revocation of citizenship and deportation remedy now that the criminal remedy is back in place? The two remedies should both take effect. A war criminal in Canada should be both prosecuted and convicted, and denaturalized and deported. Criminal remedies do not displace civil remedies.
If the Citizenship Act is amended as proposed here to include reasonable grounds to believe that the person committed a war crime or crime against humanity as a ground of revocation, then revocation proceedings against a suspected war criminal or perpetrators of crimes against humanity should not require that the criminal case be retried. To avoid any attempt by the person concerned to insist on that double proof, Parliament should amend the Citizenship Act to allow the Federal Court to remove citizenship on the basis of a criminal conviction for war crimes or crimes against humanity committed before acquisition of citizenship, without the need to prove the offence separately in revocation proceedings.
In order to ensure that the duty to investigate torture, war crimes, and crimes against humanity is met, the Immigration Act should specifically provide for it. The act should require that the case of every person excluded from refugee protection, or determined ineligible to make a refugee claim or to appeal to the Immigration Appeal Division of the Immigration and Refugee Board because of torture, war crimes, or crimes against humanity, should be referred to the appropriate prosecutor for investigation and possible prosecution.
Furthermore, no one determined by the immigration system to be a war criminal, perpetrator of crimes against humanity, or torturer should be removed from Canada until the investigation is complete and a decision on prosecution has been made. Removal should await clearance from the prosecutor with jurisdiction over the offence.
If the investigators decide to prosecute, the person should not be removed until after the trial. If the person is convicted and sentenced, the person should not be removed from Canada until the person has served his or her sentence. Removing torturers, war criminals, and perpetrators of crimes against humanity from Canada after conviction, but before they have served their sentences, would be inappropriate in every case.
Just as the Jews were the first - but not the only - victims of Nazism, the Jews have been the first - but not the only - victims of the Canadian immunity for war criminals. Over time, in large measure because of the immunity that Canada gave Nazi mass murderers, Canada became a destination of choice for all mass murderers. Because the Nazis were so successful, each new wave of war crimes brought a new wave of war criminals to Canada.
In 1938 Reverend Martin Niemöller wrote:
First they came for the Jews. And I did not speak out - because I was not a Jew. Then they came for the Communists. And I did not speak out - because I was not a Communist. Then they came for the trade unionists. And I did not speak out - because I was not a trade unionist. Then they came for me. And there was no one left to speak out for me.
Though immunity for mass murderers in Canada does not have the same immediate, devastating effect as not speaking out and acting at the time the murders are being committed, in the long term, immunity can be every bit as disastrous. Immunity for past murders creates a licence for future murders. By giving immunity to the Nazis, Canada may share some of the responsibility for the genocides that followed the Holocaust.
The Canadian policy of immunity has very much had the flavour that Pastor Niemöller decried. Canadian immunity reeked of the notion that prosecution of Nazi mass murderers was not about us; it was about them. It was not about protecting the interests of Canadian society. It was about perverting general institutions to serve a special interest group. The 1962 RCMP non-investigation policy began with these words: “In view of the possibility that individuals or organizations may attempt to employ the force as an investigational agency for groups engaged in locating and punishing individuals suspected of war crimes… ”
It is striking that reporting the identity and location of a mass murderer to the police was viewed as an attempt to divert them from their proper tasks. What, indeed, is the role of the police, if murder is beyond their purview?
First Canada gave a haven to the murderers of Jews. But the state did nothing because Canada is not a Jewish state.
Then Canada allowed entry of Khmer Rouge and Vietnamese war criminals. But officials did nothing because Canada is not an Asian state.
Then Canada found itself with Ugandan, Rwandan, and Somali war criminals. But again nothing was done because Canada is not an African state.
Then Canada granted admission to Chilean, Central American, and Argentinean perpetrators of crimes against humanity. Again, nothing was done, because Canada is not a Latin American state.
Then Canada allowed entry of Soviet and Balkan criminals against humanity. Still nothing was done because Canada is not a European state.
By the time the immunity Canada gave to Nazis was drawn to its logical and inevitable conclusion, Canada had become the dumping ground for the world’s worst criminals, a rogue’s gallery of those who have committed the world’s most heinous crimes. The roadblocks that prevented Nazi mass murderers from being brought to justice ended up benefiting perpetrators of atrocities.
Once the government and the courts began, in 1987, their belated efforts to bring war criminals in Canada to justice, the Nazi cases presented a biological deadline that justice institutions treated with insouciance. Given the passage of time, the cases had to be handled with the utmost urgency, but the reality was anything but that.
The Supreme Court of Canada referred to the delays in the revocation of citizenship cases of Erichs Tobiass, Helmut Oberlander and Johann Dueck24 as “inordinate and arguably inexcusable,” a “dilatoriness [that] defies explanation.” The court made those observations on September 25, 1997. As noted earlier, Dueck eventually won his case on December 21, 1998. Tobiass died before his case ever got to court. Oberlander lost his case in Federal Court on February 28, 2000, but, as this is being written, he is still in Canada. Virtually every Canadian Nazi case has had a similar history of delays.
As the new millennium starts, what was at best the wisp of a hope of some measure of justice against Nazi war criminals in Canada has become an almost forlorn aspiration. The commitment of the Jewish community to ending the immunity of war criminals nonetheless remains. Even at its inception, the pursuit of justice on which the Jewish community embarked against Nazi war criminals was not about providing a remedy for the Holocaust, a crime beyond remedy. It was rather about remembering the victims, deterring future genocides, bequeathing a legacy of justice from the victims to posterity. Unless and until justice against mass murderers in Canada is realized, that goal remains valid and essential, no matter what the passage of time, no matter whether there remains a surviving Nazi war criminal in Canada.
As we take stock of the lessons of the past century and examine the development of legal and legislative initiatives to bring war criminals to justice, it is clear that the Jewish community has given a charge to the wider Canadian society: justice must be done, however belatedly, or we will never learn from the mistakes of the past.