R v Brosig,

• Date: 01 March 1945
• Court: Court of Appeal (Ontario)
• Docket Number: Case No. 136

Canada, Court of Appeal of Ontario.

(Robertson, C.J.O., Henderson and Gillanders, JJ.A.).

Case No. 136

Rex

and

Brosig.

Prisoners of War — Judicial Proceedings against — Jurisdiction — Subjection to Local Criminal Law — Geneva Convention of 1929 — Acts Necessary to Escape — Mitigation of Punishment.

The Facts.—This was an appeal by the Crown from the acquittal of the accused by a Magistrate on a charge of theft from the mails. The respondent Brosig was a paratrooper of the German Air Force, taken prisoner in Holland in 1942, transported first to England and later to Canada. On December 21, 1943, he hid himself in a prisoner of war mail bag at the prisoner of war camp where he was detained. The mall bag was in due course placed with others in the mail car on a Canadian National train, its weight exciting comment but apparently not the suspicion of the railway clerks who moved it from place to place. The mail bag was finally placed close to a radiator in the mail car. Finally, the accused, oppressed by heat and lack of fresh air, released himself from the bag by cutting it open with a knife which he had in his possession. After getting out of the bag in which he had concealed himself, he cut open another mail bag in the car and removed some parcels from it. He broke these parcels open and discovered a quantity of cigarettes, some chewing gum, and a bottle of perfume. He smoked some of the cigarettes and used some of the gum and perfume. He was later apprehended and subsequently charged with theft from the mails. The charge was dismissed by the Magistrate before whom he came, and the Crown now appealed. It was argued for the respondent that the charge was rightly dismissed because what the accused did were acts which were part of or incidental to his escape from the detaining Power, and should be deemed acts of war rather than criminal offences.

Held: that the appeal must be allowed and a conviction recorded.

The Court said, per Robertson, C.J.O.: “Any exemption that this prisoner of war may have from the criminal law of Canada can, I think, only be such as may be found in the Convention relating to the treatment of prisoners of war, concluded at Geneva, and dated July 27, 1929. While no doubt a body of international law that has made great changes in the position of a prisoner of war has developed since the time when prisoners of war were put to death, and, as more humane notions prevailed that practice gave way to that of making slaves of them, and, still...