R v Finta,

Date24 March 1994
CourtSupreme Court (Canada)
Canada, Supreme Court.

(Lamer CJC, La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Major JJ

Regina
and
Finta

Jurisdiction — Universal — Crimes against international law — War crimes — Crimes against humanity — Section 7(3.71) of the Canadian Criminal Code providing for prosecution of war criminals in Canadian courts for acts or omissions occurring outside Canada during Second World War — Whether merely jurisdictional provision or creating new offences of war crimes and crimes against humanity — International and domestic elements of offence — Roles of judge and jury — Whether acts or omissions constituted war crimes or crimes against humanity — Whether question of law for judge or question of fact for jury

Relationship of international law and municipal law — War crimes and crimes against humanity — Trial for war crimes in Canada — Canadian legislation conferring jurisdiction on Canadian courts to prosecute defendants for acts and omissions occurring outside Canada — Acts and omissions deemed to have occurred in Canada if the acts and omissions constitute war crimes or crimes against humanity and would constitute offences under Canadian law in force at time of act or omission — Accused charged under Canadian Criminal Code in respect of acts and omissions occurring in Hungary during Second World War — Whether those acts or omissions constituted war crimes or crimes against humanity under international law — Whether matter for judge or jury

War and armed conflict — War crimes and crimes against humanity — Trial by municipal court — State of mind of accused — Whether requirement that accused knew that acts or omissions constituted war crimes or crimes against humanity — Whether more stringent requirements of mens rea than for ordinary underlying domestic offences — Defence of obedience to superior orders — Municipal legislation conferring jurisdiction to try charges of war crimes and crimes against humanity — Canada — Alleged offences committed outside Canada during Second World War — Legislation deeming offences to have been committed inside Canada, provided that constituted war crimes or crimes against humanity — The law of Canada

Summary: The facts:—The respondent had been a member of the Royal Hungarian Gendarmerie which, during the occupation of Hungary by Germany in l994, had implemented the ‘Baky Order’: a plan providing for the confinement of all Hungarian Jews, the confiscation of their property and their deportation to concentration camps. The respondent, who had emigrated to Canada in 1951, was charged with the commission of war crimes and crimes against humanity directed against the Jewish population in Hungary during the Second World War under Section 73.71 of the Canadian Criminal Code. Section 7(3.71) provided that a person who had committed an act or omission outside Canada that constituted a war crime or a crime against humanity and which, if committed in Canada, would have constituted an offence under the laws of Canada in force at the time of the act or omission, was deemed to have committed that act or omission in Canada. By Section 7(3.74) an accused could be convicted of an offence under Section 73.71 even if the act or omission was committed in obedience or in conformity with the law in force at the time and place of its commission, thereby excluding the defence of obedience to de facto authority Section, 73.76 of the Criminal Code defined crimes against humanity and war crimes, Section 25 established a defence by which a person was not guilty of an offence where the act constituting the offence was performed pursuant to the orders of a superior officer and the order was not manifestly unlawful or, if manifestly unlawful, the accused had no real moral choice of refusing to execute the order.

The Ontario High Court dismissed the respondent's pre-trial application for an order declaring these provisions of the Criminal Code unconstitutional and a violation of the Canadian Charter of Rights and Freedoms 82 ILR 424.

At trial, the respondent, while acknowledging hi- presence at the time and place of the alleged acts, denied responsibility for the offences. maintaining that he had been subject to the command of the German SS. He also argued

that the alleged offences had been committed pursuant to orders which were lawful, or at least, not manifestly unlawful. The respondent did not call any evidence in his defence. However, after the close of the Crown's case, the trial judge, at the request of the defence, placed before the jury the video-taped testimony of two witnesses and the statements and minutes of testimony given by a witness at the respondent's trial in Hungary in 1947–8. The jury acquitted the respondent on all counts. The Crown appealed. In the Court of Appeal, the majority dismissed the Crown's appeal and affirmed the trial judge's direction to the jury (98 ILR 520). The Court of Appeal held, however, that the trial judge had erred in introducing evidence himself before the defence had decided whether or not to call evidence. While observing that parts of the defence's final address had been improper, they concluded that the judge's directions in respect of that address had negated any prejudice which might have resulted. The substance of the judge's error, in the view of the Court of Appeal, had been to deny the Crown its statutory right to address the jury last. The Court of Appeal held, however, that the jury's verdict might well have remained the same even if the judge had not called the evidence and ruled that there had not been a substantial wrong or miscarriage of justice requiring the reversal of the respondent's acquittal by the jury.

The Crown appealed to the Supreme Court, arguing, inter alia, that Section 7(3.71) of the Criminal Code was a jurisdictional provision and did not create two new offences of crimes against humanity and war crimes. Since these were jurisdictional matters, the Crown maintained that the trial judge should not have left the question whether the offences constituted crimes against humanity or war crimes to the jury. The jury should simply have decided whether, the judge having established that the international element of the offences were met, the respondent was guilty of the 1927 Criminal Code offences charged, i.e. unlawful confinement, robbery, kidnapping and manslaughter. The Crown argued that the trial judge misdirected the jury as to the requisite mens rea by requiring the Crown to prove not only that the respondent intended to commit the offences charged, but also that he knew his acts constituted war crimes and/or crimes against humanity. They claimed that, under Section 7(3.71). the mens rea remained the same as for the ordinary domestic offences, and did not require a greater level of mental culpability. They further submitted that the defence of obedience to military orders and the defence under Section 25 were not available to a person accused of offences under Section 7(3.71). The Crown maintained that the trial judge's directions to the jury had not negated the prejudicial effect of the defence's improper jury address. The Crown argued that the witness statement from the respondent's trial in Hungary should not have been admitted. The Crown also contended that the trial judge, by calling the defence evidence, had deprived the Crown of its statutory right to address the jury last and that this had resulted in a substantial wrong or miscarriage of Justice. The respondent cross-appealed on two points. He submitted that Section 7(3.74) and 7(3.76) of the Criminal Code violated Sections 7, 11, 12 and 15 of the Canadian Charter of Rights and Freedoms which related to right of trial by jury, the concept of fundamental justice, the prohibition of retroactive legislation and vagueness of the law. The respondent questioned whether, if they did violate the Charter, those sections amounted to reasonable limits in a free and democratic society. justifiable under Section 1 of the Canadian Charter of Rights and Freedoms.

Held (La Forest. L.'Heureux-Dubé and McLachlin JJ dissenting):—The appeal and the cross-appeal were dismissed.

(1) In general Canadian courts could only try crimes committed in Canadian territory. There were, however, exceptions to the principle of territoriality. The principle of universality permitted a State to exercise jurisdiction over criminal acts committed by non-nationals against non-nationals wherever they took place if the offence constituted an attack on the international legal order. In addition, there were acts which were crimes under international law which could be punished by any State which had custody of the accused. Section 1l(g) of the Charter of Rights and Freedoms, which imported customary international law into Canadian law, permitted customary international law to form the basis for the prosecution of war criminals regardless of when or where the act or omission took place. The Criminal code was amended to permit the prosecution of war criminals and the relevant provisions constituted an exception to the principle of territoriality. This exception was however circumscribed by the requirements of Section 7(3.71). As a general principle the question of jurisdiction was a matter of law to be determined by the judge and not by the jury. The trial judge in the present case moved away from the general rule because the questions of fact raised by some of the jurisdictional requirements in Section 7(3.71) went to the issue of the respondent's culpability and were therefore matters for the jury. The trial judge had acted correctly. Where the jurisdictional issue went to whether the essential elements of an offence had been proved, this had to be left to the jury. If as the Crown claimed, the trial judge should have determined whether the respondent had been responsible for the alleged acts and whether they were war crimes or crimes against humanity as defined in Section 7(3.76), this would have...

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