R. v. Finta (I.), (1992) 53 O.A.C. 1 (CA)

• Judge: Dubin, C.J.O., Tarnopolsky, Arbour, Osborne and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 29, 1992
• Jurisdiction: Ontario
• Citations: (1992), 53 O.A.C. 1 (CA)

R. v. Finta (I.) (1992), 53 O.A.C. 1 (CA)

MLB headnote and full text

Her Majesty the Queen (appellant) v. Imre Finta (respondent)

(No. 574/90)

Indexed As: R. v. Finta (I.)

Ontario Court of Appeal

Dubin, C.J.O., Tarnopolsky, Arbour, Osborne and Doherty, JJ.A.

April 29, 1992.

Summary:

In 1988 Finta was charged with unlawful confinement, robbery, kidnapping and man­slaughter contrary to the Criminal Code, S.C. 1927, c. 36. These offences arose out of acts alleged to have been committed in Hungary during World War II. It was also alleged that the charges constituted war crimes or crimes against humanity contrary to ss. 7(3.71) to 7(3.77) of the Criminal Code, 1985. He was acquitted by a jury on all counts. The Crown appealed.

The Ontario Court of Appeal, Dubin, C.J.O., and Tarnopolsky, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 1038

Discrimination - Race and national or ethnic origin - Criminal matters - War crimes etc. - The accused allegedly com­mitted war crimes etc. contrary to the Criminal Code, 1985, s. 7(3.71) - A motions judge ruled that the war crimes provisions did not constitute discrimination on the basis of national or ethnic origin contrary to s. 15 of the Charter - On appeal from acquittal, the Ontario Court of Appeal affirmed the ruling of the motions judge, and with one caveat, agreed with and adopted his reasons for judgment reported 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 - See paragraphs 338 to 346 and 539, 540.

Civil Rights - Topic 3125.2

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Retrospective legislation - The accused allegedly com­mitted war crimes etc. contrary to the Criminal Code, 1985, s. 7(3.71) - The activities occurred during World War II - A motions judge held that the retrospec­tivity of the war crimes provisions was not contrary to the principles of fundamental justice embodied in s. 7 of the Charter, because such retrospectivity was contem­plated by s. 11(g) of the Charter - On appeal from acquittal, the Ontario Court of Appeal affirmed the ruling of the motions judge, and with one caveat, agreed with and adopted his reasons for judgment reported 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 - See paragraphs 338 to 346, 528 to 532.

Civil Rights - Topic 3125.3

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Legislation with extraterritorial effect - The accused alleg­edly committed war crimes etc. contrary to the Criminal Code, 1985, s. 7(3.71) - A motions judge ruled that the war crimes provisions were not contrary to s. 7 of the Charter merely because the legislation had an extraterritorial effect - On appeal from acquittal, the Ontario Court of Appeal affirmed the ruling of the motions judge, and with one caveat, agreed with and adopted his reasons for judgment reported 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 - See paragraphs 338 to 346 and 525 to 527.

Civil Rights - Topic 3130

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Delay - The accused allegedly committed war crimes etc. contrary to the Criminal Code, 1985, s. 7(3.71) - The activities occurred over 44 years ago during World War II - The accused sought a stay of proceedings on the basis of unreasonable delay (Charter, ss. 7 and 11(b)) - The Ontario Court of Appeal held that there was no merit to the submission that the accused was not tried within a reasonable time - See paragraphs 345, 346 and 535 to 537.

Civil Rights - Topic 3136

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be informed of alleged offence - The accused allegedly committed war crimes etc. contrary to the Criminal Code, 1985, s. 7(3.71) - A motions judge ruled that the charges against the accused were not so vague as to constitute a violation of s. 11(a) of the Charter - On appeal from acquittal, the Ontario Court of Appeal affirmed the ruling of the motions judge, and with one caveat, agreed with and adopted his reasons for judgment reported 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 - See paragraphs 338 to 346, 533, 534.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury (Charter, s. 11(f)) - The Ontario Court of Appeal stated that "any statutory or judge-made rule which transfers the fact-finding function as it relates to issues going to the culpability of the accused, from the jury to a judge is, at the very least, constitutional­ly suspect." - See paragraph 181.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Ac­cused's right to - "Within a reasonable time" - What constitutes - [See Civil Rights - Topic 3130 ].

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - In 1988 Finta was accused in Canada of committing war crimes during World War II - Finta made an inculpatory statement following his arrest - The trial judge held that the state­ment was obtained contrary to Finta's right to counsel (Charter, s. 10(b)) and excluded the evidence under s. 24(2) - The Ontario Court of Appeal held that there was ample basis for the judge's application of the rule that incriminatory statements obtained following a violation of s. 10(b) will gen­erally be excluded - See paragraphs 51, 52.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 11

Drafting and interpretation of criminal statutes - General principles - The Ontario Court of Appeal stated that "in interpreting Criminal Code provisions, a court should factor in values reflected in the Charter" - See paragraph 189.

Criminal Law - Topic 39.4

General principles - Intention or mens rea - Doctrine of wilful blindness - [See second Criminal Law - Topic 276 ].

Criminal Law - Topic 162

Elements of criminal conduct - Actus reus - The Ontario Court of Appeal stated that to prove a criminal offence (barring some extraterritorial statutory provision), the Crown must prove that the offence occurred in Canada - Failing this, the prosecution fails, not for want of the court's jurisdiction, but because the Crown failed to prove that the offence as defined in the Criminal Code was committed by the accused - Failure to prove the national situs of the offence is not qualitatively different from a failure to prove any other essential element of the offence - The national situs of the offence can be seen as one aspect of the actus reus - Failure to prove any essential element of the offence alleged, including that the offence occurred in Canada, necessitates the acquittal of the accused - See paragraph 141.

Criminal Law - Topic 271

War crimes and crimes against humanity - General - The accused allegedly com­mit­ted war crimes etc. contrary to the Crimi­nal Code, 1985, s. 7(3.71) - A motions judge ruled that the war crimes provisions were constitutional (i.e., the provisions were not contrary to ss. 7, 11(a), 11(d), 11(g) or 15 of the Charter - On appeal from acquittal, the Ontario Court of Appeal affirmed the ruling of the motions judge, and with one caveat, agreed with and adopted his reasons for judgment reported 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 - The court also held that the ac­cused's right to be tried within a reason­able time (Charter, s. 11(b)) was not vio­lated - See paragraphs 338 to 346 and 523 to 540.

Criminal Law - Topic 272

War crimes and crimes against humanity - Interpretation of Criminal Code - Section 7(3.71) of the Criminal Code deemed certain conduct to be war crimes and crimes against humanity - The Ontario Court of Appeal interpreted this provision - See paragraphs 146 to 173 - The court stated, inter alia, that to establish an offence under s. 7(3.71) it is necessary not only that the act would have amounted to a crime in Canada, but also that it consti­tuted a war crime or a crime against hu­manity - See paragraph 164.

Criminal Law - Topic 272

War crimes and crimes against humanity - Interpretation of Criminal Code - [See second Criminal Law - Topic 2801 ].

Criminal Law - Topic 273

War crimes and crimes against humanity - Intention - The Ontario Court of Appeal noted that the definitions of "war crimes" and "crimes against humanity" in s. 7(3.76) of the Criminal Code, 1985, do not ex­pressly set out the mental state required to bring an act within those definitions - The court affirmed that knowledge of the cir­cumstances or facts which bring an act within the definition of a war crime or crime against humanity constitutes the mental component which must co-exist with the prohibited acts to establish culpa­bility for those acts - See paragraphs 69, 70.

Criminal Law - Topic 276

War crimes and crimes against humanity - Jury charge - The accused allegedly com­mitted war crimes and crimes against humanity - In his charge the trial judge defined the knowledge requirement of the international component of the charges - The Ontario Court of Appeal held that the judge correctly described the knowledge requirement - See paragraphs 204 to 208.

Criminal Law - Topic 276

War crimes and crimes against humanity - Jury charge - Following the 1944 German occupation of Hungary, the new govern­ment passed anti-Jewish laws - A plan for removing Jews from Hungary was incor­porated in the Ministry of the Interior Order 6263/1944 (The Baky Order) - The government never passed a statute or decree authorizing this plan - In 1988 Finta was accused in Canada with com­mitting war crimes - Finta argued that he was acting under authority of the Baky Order - The trial judge instructed the jury that to convict Finta, he had to have known that the Baky Order was manifestly unlawful - On appeal from acquittal the Crown argued that the judge should also have instructed the jury respecting wilful blindness - The Ontario Court of Appeal rejected this ground of appeal - See para­graphs 46 to 49.

Criminal Law - Topic 276

War crimes and crimes against humanity - Jury charge - The accused allegedly com­mitted war crimes - Evidence was pre­sented respecting the accused's attitude toward Jews in relation to the issue of whether Jews were persecuted on racial or religious grounds - One Jewish witness testified that she knew the accused prior to the alleged offences and he had always dealt with her in an appropriate manner - The trial judge related this evidence to the question of motive or animus - The Ontario Court of Appeal held that the judge did not err in his directions to the jury respecting the witnesses' evidence - See paragraph 58.

Criminal Law - Topic 276

War crimes and crimes against humanity - Jury charge - The accused allegedly com­mitted war crimes etc. - On appeal from acquittal the Crown argued that certain statements made by defence counsel in his closing address were improper - The Ontario Court of Appeal examined the statements and determined which were improper - The court held that any impro­prieties were properly dealt with in the trial judge's charge and did not deprive the Crown of its right to a fair trial - See paragraphs 209 to 249.

Criminal Law - Topic 277

War crimes and crimes against humanity - Responsibility of judge and jury - In 1988 Finta was charged with offences under the Criminal Code, 1927, respecting activities during World War II - It was also alleged that Finta's activities constituted war crimes or crimes against humanity contrary to the Criminal Code, 1985, s. 7(3.71) - The Crown claimed the judge, rather than the jury, had to weigh the evidence, deter­mine the relevant facts and decide if Fin­ta's acts constituted war crimes etc. - The jury was required to determine only whether Finta's acts violated the 1927 Criminal Code - The Ontario Court of Appeal rejected the Crown's argument - The court affirmed that the jury was required to determine whether Finta's activities breached the 1927 Code and whether the acts constituted war crimes etc. - See paragraphs 63 to 203.

Criminal Law - Topic 2801

Jurisdiction - General - The Ontario Court of Appeal discussed the difference between territorial situs as it relates to a court's jurisdiction and the territorial ambit of an offence-creating provision - The court stated that the territorial ambit of an offence-creating provision constitutes part of the definition of the offence - See paragraphs 102 to 131 - "If the offence alleged did not occur within the territorial reach of crime as defined by Parliament, there is no crime in the eyes of the Cana­dian criminal law" - See paragraph 130 - This rule may be changed by statute - See paragraph 134.

Criminal Law - Topic 2801

Jurisdiction - General - The Criminal Code, s. 6(2), provided that no one shall be convicted of an offence committed outside Canada - Section 7(3.71) of the Code created an exception to the rule in s. 6(2) respecting war crimes or crimes against humanity - Section 7(5) provided that any Canadian territorial division had jurisdiction to try offences referred to in s. 7(3.71) - The Ontario Court of Appeal stated that s. 7(3.71) "speaks not to the jurisdiction of the court but to the terri­torial scope of the offences referred to in that section. It does so by expanding the territorial reach of the criminal law beyond Canada to the rest of the world whenever the acts or omissions in question meet the dual criminality requirement of the sec­tion" - See paragraph 152.

Criminal Law - Topic 2801

Jurisdiction - General - [See Criminal Law - Topic 162 ].

Criminal Law - Topic 2811

Jurisdiction - Jurisdiction over the offence - Territorial jurisdiction - [See first and second Criminal Law - Topic 2801 and Criminal Law - Topic 162 ].

Criminal Law - Topic 4291

Procedure - Trial judge - Duties and functions of - General - [See Criminal Law - Topic 277 ].

Criminal Law - Topic 4295

Procedure - Trial judge - Duties and functions of - Power to call evidence - At a war crimes trial the Crown refused to call evidence challenging the accused's identity - Rather than making the defence call the evidence, the judge called the evidence himself, ruling that it was not part of the defence's case - The defence called no evidence and therefore addressed the jury last (Criminal Code, s. 651(3)) - The Ontario Court of Appeal held that the trial judge erred - Preservation of de­fence's entitlement to address the jury last was not a proper consideration in exercis­ing his discretion to call evidence - See paragraphs 302 to 321 - However, the judge's decision to call the evidence did not constitute a substantial wrong or mis­carriage justifying allowing an appeal under s. 686(4) of the Code - See para­graphs 322 to 327.

Criminal Law - Topic 4329

Procedure - Jury - Verdicts - Duty of jury - The Ontario Court of Appeal stated that in order to prove the commission of a criminal offence (barring some extraterri­torial statutory provision), the Crown must prove that the alleged offence occurred in Canada - The court stated that "because the Crown must establish that an offence occurred in Canada as a step in establish­ing the accused's guilt, the question whether the act occurred in Canada relates 'to guilt or innocence' and must be deter­mined by the jury based on its assessment of the evidence" - See paragraph 142.

Criminal Law - Topic 4329

Procedure - Jury - Verdicts - Duty of jury - [See Criminal Law - Topic 277 ].

Criminal Law - Topic 4356

Procedure - Jury charge - Directions regarding intent or mens rea - [See second and third Criminal Law - Topic 276 ].

Criminal Law - Topic 4369

Procedure - Jury charge - Directions regarding motive - [See third Criminal Law - Topic 276 ].

Criminal Law - Topic 4412

Procedure - Opening and closing addresses - Counsel - Closing address - Opinion respecting guilt - The Ontario Court of Appeal stated that "neither the Crown nor defence counsel is entitled to express his personal opinion about a wit­ness, an issue, the basis upon which the prosecution was commenced, or the case in general. Counsel's opinion is not relevant. There is no special exemption for defence counsel." - See paragraph 214.

Criminal Law - Topic 4412

Procedure - Opening and closing addresses - Counsel - Closing address - Opinion respecting guilt - The accused allegedly committed war crimes etc. - In his closing address, defence counsel stated that "in my judgment, there is no case. If it was my duty I wouldn't be here. If it was my duty to determine if there was a case to bring here, you wouldn't be here" - The Ontario Court of Appeal held that counsel's last sentence was improper and irrelevant; however, the remarks were not prejudicial when counsel's submissions and the trial judge's charge were considered as a whole - See paragraphs 211 to 215.

Criminal Law - Topic 4418

Procedure - Opening and closing addresses - Counsel - Closing address - Respecting law - The accused allegedly committed war crimes etc. - In his closing address, defence counsel invited the jury to ignore the Criminal Code war crimes provisions which he characterized as bad law - The Ontario Court of Appeal held that counsel's references were improper; however any prejudice caused by the comments was remedied by the trial judge in his charge - See paragraph 224.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Counsel - Closing address - Intemperate or improper statements - The accused allegedly committed war crimes etc. - On appeal from acquittal the Crown argued that certain statements made by defence counsel in his closing address were improper - The Ontario Court of Appeal examined the statements and ruled accordingly on their propriety - The court held that any improprieties were adequate­ly dealt with in the trial judge's charge and did not deprive the Crown of its right to a fair trial - See paragraphs 209 to 249.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Counsel - Closing address - Intemperate or improper statements - The accused allegedly committed war crimes etc. - Defence counsel, in his closing address, compared the relationship between the Court of Appeal and the trial judge to the rela­tionship between the accused and his military superiors - The Crown argued that this analogy suggested that the trial judge was not independent or might be part of a military style hierarchy - The Ontario Court of Appeal held that coun­sel's analogy was "manifestly imperfect and inappropriate", but that the trial judge properly emphasized in his charge that he and the jury were not following orders from anyone - See paragraphs 233 to 236.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Counsel - Closing address - Intemperate or improper statements - The accused allegedly committed war crimes etc. - Defence counsel, in his closing address, quoted verbatim from the Bible, which allegedly appealed to the religious prejudices of the jury - On appeal from acquittal, the Crown argued that these statements were improper and highly in­flammatory in that they suggested that the accused, like Jesus, was falsely accused - The Ontario Court of Appeal stated that "the exegesis chosen by defence counsel was inappropriate in the extreme" - The court held that in light of the trial judge's instructions, counsel's remarks did not prejudice or taint the trial - See para­graphs 240 to 246.

Criminal Law - Topic 4419

Procedure - Opening and closing addresses - Counsel - Closing address - Intemperate or improper statements - The accused allegedly committed war crimes arising out of his treatment of Jews in World War II - Defence counsel, in his closing address, made pejorative references to eyewitnesses of Jewish origin, most of whom affirmed before giving evidence, and jurors who swore on the Bible upon taking their oath - The Ontario Court of Appeal held that counsel's distinction between those who affirmed and those who swore was "unworthy of a counsel of his experience and inappropriate in the extreme" - The court held, however, that the trial judge properly directed the jury that an oath and affirmation have the same effect and the jury did not succumb to defence counsel's transparent tactics - See paragraph 247.

Criminal Law - Topic 4420.01

Procedure - Opening and closing addresses - Counsel - Closing address - Threatening remarks - The accused alleg­edly committed war crimes etc. - In his closing address, defence counsel allegedly threatened the jury by suggesting that the jurors should have a moral certainty in convicting the accused because of the long time lapse, since some day they might be in the same situation - The Ontario Court of Appeal held that the trial judge properly charged the jury re­specting this "clumsy and inap­propriate" defence submission - See para­graphs 226 to 229.

Criminal Law - Topic 4420.01

Procedure - Opening and closing addresses - Counsel - Closing address - Threatening remarks - The accused alleg­edly committed war crimes etc. - In his closing address, defence counsel alleg­edly intimidated the jury by suggesting that the jury would in turn be judged by God just as they judged the accused - The Ontario Court of Appeal held that the trial judge's charge to the jury corrected the excesses in this part of defence counsel's jury address and that the jury considered the issues without intimidation - See paragraphs 237 to 239.

Criminal Law - Topic 4420.02

Procedure - Opening and closing addresses - Counsel - Closing address - Respecting effect of verdict - The accused allegedly committed war crimes etc. - Defence counsel, in his closing address, invited the jury to acquit in order to avoid resurrecting grievances of World War II which could lead to unjust charges in other countries - The Ontario Court of Appeal held that any prejudice which might have been caused by counsel's improper refer­ences to the potential consequences of the jury's verdict was removed by the trial judge's clear instructions - See paragraphs 230 to 232.

Criminal Law - Topic 4420.03

Procedure - Opening and closing addresses - Counsel - Closing address - Order of jury addresses - [See Criminal Law - Topic 4295 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or question of law alone - The accused allegedly com­mitted war crimes - On appeal from ac­quittal, the Crown argued that the trial judge erred in failing to relate the evidence to issues of knowledge and intention - The Ontario Court of Appeal, noted that the Crown did not press this point in oral argument - The court expressed doubt as to whether, in any event, the Crown's argument raised a question of law alone - See paragraph 50.

Criminal Law - Topic 5202

Evidence and witnesses - Admissibility - Whether relevant and material - The accused allegedly committed war crimes - The trial judge admitted evidence of a debate between defence counsel and a Hungarian judge during the taking of commission evidence respecting the pro­priety of defence counsel's questions to a witness - Defence counsel argued that the Hungarian judge improperly interfered with cross-examination and therefore the evidence should be excluded - The trial judge disagreed and allowed the jury to hear the debate because it could affect their assessment of the witnesses' credibil­ity - The Ontario Court of Appeal held that the exchange between counsel and the judge was not relevant to credibility but might have some other relevance - Inclu­sion of the evidence was not considered to be a prejudicial or reversible error - See paragraphs 53 to 57.

Criminal Law - Topic 5415

Evidence and witnesses - Witnesses - Cross-examination of - The accused allegedly committed war crimes - The trial judge excluded Crown evidence concerning the extermination process at the Auschwitz death camp - Later defence counsel cross-examined Crown expert witnesses respect­ing the historical context in which the alleged offences occurred - During cross-examination there was reference to the various practices followed in death camps - The trial judge permitted the cross-examination as relevant to test the exper­tise of the experts who were providing histori­cal information to the jury - The Ontario Court of Appeal held that there was no inconsistency in disallowing the Crown questions which had minimal rel­evance, while at the same time permitting defence counsel's questions to challenge the exper­tise of the experts - See para­graphs 59 to 62.

Evidence - Topic 1525

Hearsay rule - Exceptions and exclusions - General - The Ontario Court of Appeal stated that the existing categories of ex­ceptions to the hearsay rule, for the most part, have been judicially created and are not exhaustive - See paragraph 271 - The court thereafter discussed the prerequisites for creating an exception to the rule (i.e., necessity, reliability and fairness) - See paragraphs 279 to 298 - The court also discussed whether an exception to the hearsay rule may be allowed solely to the benefit of the accused - See paragraphs 287 to 296.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and fair and evidence reliable - The accused was on trial for war crimes, aris­ing from activities as commander at a concentration camp in World War II - At the accused's Hungarian trial in 1947-48, which was held in absentia, one Dallos testified that another person might have been in charge - Dallos died around 1963 - At trial the judge called the Dallos' evidence himself, holding that it was ad­missible because it was reliable and neces­sary, notwithstanding that it was hearsay - The Ontario Court of Appeal held that the judge's decision to admit the evidence as an exception to the hearsay rule was in accord with the principles and policies underlying exceptions to the rule - See paragraphs 271 to 298, 321.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and fair and evidence reliable - [See Evi­dence - Topic 1525 ].

Evidence - Topic 7005

Opinion evidence - Expert evidence - Range of cross-examination - [See Crim­inal Law - Topic 5415 ].

Cases Noticed:

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 47].

R. v. Pilon, [1990] 3 S.C.R. 1422; 135 N.R. 298; 46 Q.A.C. 112, refd to. [para. 50].

R. v. Elshaw (1991), 128 N.R. 241; 3 B.C.A.C. 81; 7 W.A.C. 81; 67 C.C.C.(3d) 97 (S.C.C.), appld. [para. 52].

R. v. Stavroff, [1980] 1 S.C.R. 411; 29 N.R. 68; 48 C.C.C.(2d) 353, refd to. [para. 63].

Balcombe v. The Queen, [1954] S.C.R. 303; 110 C.C.C. 146, dist. [para. 94 et seq.].

R. v. Botting, [1966] 2 O.R. 121; [1966] 3 C.C.C. 373 (C.A.), refd to. [para. 105].

R. v. Phillips Appliances Ltd., [1969] 2 C.C.C. 328 (Ont. C.A.), refd to. [para. 110].

R. v. Bigelow (1982), 37 O.R.(3d) 304; 69 C.C.C.(2d) 204 (C.A.), leave to appeal refused (1983), 45 N.R. 534 (S.C.C.), refd to. [para. 110].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33; 21 C.C.C.(3d) 206, refd to. [paras. 112, 160, 164, 477].

Macleod v. Attorney General for New South Wales, [1891] A.C. 455 (J.C.P.C.), refd to. [para. 112].

R. v. Martin et al., [1956] 2 Q.B. 272 (C.C.C.), refd to. [para. 123].

Treacy v. Director of Public Prosecutions, [1971] A.C. 537; [1971] 1 All E.R. 110 (H.L.), refd to. [paras. 124-126].

Director of Public Prosecutions v. Stone­house, [1978] A.C. 55; [1977] 2 All E.R. 909 (H.L.), refd to. [paras. 127, 142].

D.P.P. - see Director of Public Prosecu­tions.

R. v. Hetsberger (1979), 47 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 128].

R. v. Hetsberger (1980), 51 C.C.C.(2d) 257 (Ont. C.A.), refd to. [para. 129].

Cox v. Army Council, [1963] A.C. 48; [1962] 1 All E.R. 880 (J.C.P.C.), refd to. [para. 132].

Air India v. Wiggens, [1981] 1 All E.R. 192 (H.L.), refd to. [para. 132].

Bolduc v. Attorney General of Quebec et al., [1982] 1 S.C.R. 573; 43 N.R. 185; 68 C.C.C.(2d) 413, refd to. [paras. 133, 157, 158, 162, 373, 374, 506].

R. v. Walkem (1908), 14 B.L.R. 1; 14 C.C.C. 122 (S.C.), refd to. [para. 134].

R. v. Selkirk, [1965] 2 O.R. 168; [1965] 2 C.C.C. 353 (C.A.), refd to. [para. 134].

R. v. Stojadinovic, [1967] 1 O.R. 388; [1967] 2 C.C.C. 88 (C.A.), refd to. [para. 134].

R. v. Baldini and Gullekson (1984), 51 A.R. 89; 39 C.R.(3d) 43 (C.A.), refd to. [para. 136].

R. v. Gauthier (1983), 51 N.B.R.(2d) 90; 134 A.P.R. 90 (C.A.), refd to. [paras. 137, 138].

R. v. Bachrack (1913), 21 C.C.C. 257; 11 D.L.R. 522 (Ont. C.A.), refd to. [paras. 139, 140].

R. v. Lai and Lau (1985), 24 C.C.C.(3d) 237 (B.C.C.A.), refd to. [para. 161].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81; 60 C.C.C.(3d) 97; 1 C.R.(4th) 97, refd to. [para. 175].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193, refd to. [paras. 176, 323, 326, 327].

R. v. Bryant (1984), 6 O.A.C. 118; 48 O.R.(2d) 732; 16 C.C.C.(3d) 408 (C.A.), refd to. [para. 179].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115; 48 C.C.C.(3d) 8, refd to. [paras. 179, 540].

R. v. Mack, [1988] 2 S.C.R. 903; [1989] 1 W.W.R. 577; 90 N.R. 173; 44 C.C.C.(3d) 513, refd to. [para. 180].

R. v. Landry, [1991] 1 S.C.R. 99; 119 N.R. 293; 34 Q.A.C. 81; 62 C.C.C.(3d) 117, refd to. [para. 189].

R. v. Collins (1989), 32 O.A.C. 296; 48 C.C.C.(3d) 343; 69 C.R.(3d) 235 (C.A.), refd to. [para. 189].

R. v. Graham, [1984] V.R. 649 (Vict. S.C.), refd to. [para. 195].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [paras. 272, 281, 297].

Ares v. Venner, [1970] S.C.R. 608, refd to. [paras. 272, 282].

Myers v. Director of Public Prosecutions, [1965] A.C. 1001, refd to. [para. 272].

R. v. Miller (1991), 50 O.A.C. 282; 5 O.R.(3d) 678 (C.A.), refd to. [paras. 277, 285, 297].

R. v. Williams (1985), 7 O.A.C. 201; 50 O.R.(2d) 321; 44 C.R.(3d) 351 (C.A.), refd to. [paras. 288, 290, 297].

R. v. Dersch et al., [1990] 2 S.C.R. 1505; 116 N.R. 340; 60 C.C.C.(3d) 132, refd to. [para. 289].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271; 35 C.C.C.(2d) 209, refd to. [paras. 291, 292].

R. v. Demeter (1975), 10 O.R.(2d) 321; 25 C.C.C.(2d) 417 (C.A.), refd to. [paras. 291, 292].

R. v. Lucier, [1982] 1 S.C.R. 28; 40 N.R. 153; 14 Man.R.(2d) 380; 65 C.C.C.(2d) 150, refd to. [paras. 292-295].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 297].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [paras. 323, 327].

R. v. Morgentaler, Smoling and Scott (1985), 11 O.A.C. 81; 48 C.R.(3d) 1; 22 D.L.R.(4th) 641; 52 O.R.(2d) 353; 22 C.C.C.(3d) 353, revsd. [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 37 C.C.C.(3d) 449, refd to. [para. 338].

R. v. Finta (1989), 69 O.R.(2d) 557; 50 C.C.C.(3d) 236 (H.C.), refd to. [paras. 339, 383, 462, 502, 523].

R. v. Metro News Ltd. (1986), 16 O.A.C. 319; 29 C.C.C.(3d) 35 (C.A.), refd to. [para. 476].

R. v. Philips Appliances Ltd., [1969] 2 C.C.C. 328, refd to. [paras. 481, 488].

R. v. Martel (Kurt) and DeBarros (1986), 61 Nfld. & P.E.I.R. 219; 185 A.P.R. 219; 55 C.R.(3d) 63 (P.E.I.S.C.), refd to. [paras. 484, 488].

R. v. Moore and Grazier (1970), 1 C.C.C.(2d) 521 (B.C.C.A.), refd to. [para. 486].

R. v. Gunn, [1982] 1 S.C.R. 522; 44 N.R. 307; 18 Man.R.(2d) 33, refd to. [para. 505].

Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [para. 525].

Minority Language Educational Rights, Re (1984), 4 O.A.C. 321; 47 O.R.(2d) 2 (C.A.), refd to. [para. 531].

Reference Re Roman Catholic Separate High Schools Funding (1986), 13 O.A.C. 241; 53 O.R.(2d) 513 (C.A.), affd. [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 531].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 531].

Mediacom Industries Inc. v. R. (1982), 36 O.R.(2d) 281 (H.C.), refd to. [para. 533].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 33 C.C.C.(3d) 289; 57 C.R.(3d) 289; 39 D.L.R.(4th) 481, refd to. [para. 535].

R. v. Kalanj; R. v. Pion, [1989] 1 S.C.R. 1594; 96 N.R. 191, refd to. [para. 535].

Andrews v. Law Society of British Co­lumbia, [1989] 1 S.C.R. 143; 91 N.R. 255; 56 D.L.R.(4th) 1, refd to. [para. 540].

Statutes Noticed:

Baky Order - see Hungary, Ministry of the Interior Order 6163/1944.

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30(10) [paras. 263, 283].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 343, 491, 524 et seq.]; sect. 10(b) [paras. 51, 52]; sect. 11(a) [paras. 343, 524, 533, 534]; sect. 11(b) [paras. 346, 524, 535-537]; sect. 11(d) [paras. 343, 524, 535-537]; sect. 11(f) [para. 178]; sect. 11(g) [paras. 343, 524, 531, 537]; sect. 11(i) [para. 538]; sect. 12 [paras. 524, 538]; sect. 15 [paras. 343, 491, 524]; sect. 24(2) [para. 51].

Covenant on Civil and Political Rights, 1966, sect. 15 [paras. 532, 538].

Criminal Code, R.S.C. 1927, c. 36, sect. 25 [paras. 84-90]; sect. 268, sect. 297(a) [paras. 74, 452]; sect. 297(b) [para. 8 et seq.]; sect. 447 [paras. 74, 452].

Criminal Code, R.S.C. 1985, c. C-46, sect. 6(2) [paras. 117-120, 132, 367, 501, 520]; sect. 7 [para. 493]; sect. 7(3.7) [para. 495]; sect. 7(3.71), sect. 7(3.72), sect. 7(3.73), sect. 7(3.74), sect. 7(3.75), sect. 7(3.76), sect. 7(3.77) [para. 1 et seq.]; sect. 7(4) [para. 376]; sect. 7(5) [paras. 5, 66, 392]; sect. 7(5.1) [para. 66]; sect. 9 [paras. 119, 120]; sect. 13, sect. 15, sect. 16 [para. 119]; sect. 19 [para. 476]; sect. 74(1), sect. 75 [para. 368]; sect. 279.1 [paras. 493, 494]; sect. 465(1) [paras. 372, 504]; sect. 465(3) [paras. 157-160, 372-375, 504-508]; sect. 465(5) [paras. 161, 162]; sect. 470 [para. 108]; sect. 476 [para. 509]; sect. 476(c) [para. 486]; sect. 477.1, sect. 477.2, sect. 477.4 [para. 511]; sect. 478 [paras. 109-111, 116, 118]; sect. 478(1) [para. 481]; sect. 581 [para. 143]; sect. 645(5) [para. 339]; sect. 651(3) [paras. 306, 313]; sect. 686(4) [para. 322]; sect. 686(1)(b)(iii) [para. 323].

Evidence Act (Can.), 1985 - see Canada Evidence Act.

Geneva Conventions Act, R.S.C. 1985, c. G-3, generally [para. 527]; sect. 3(1) [paras. 165-169, 369]; sect. 3(2) [paras. 166, 168, 169].

Hungary, Ministry of the Interior Order 6163/1944 (The Baky Order), generally [para. 21 et seq.].

Ministry of the Interior Order 6163/1944 (Hungary) - see Hungary, Ministry of the Interior Order 6163/1944.

Statute of Westminster, 1931, sect. 3 [para. 526].

Authors and Works Noticed:

Béliveau, Bellemare and Lussier, On Criminal Procedure (Eng. Ed. 1982), p. 146 [para. 489].

Canada, Law Reform Commission, Extra­territorial Jurisdiction, Working Paper No. 37 (1984), pp. 3, 4 [para. 114]; 13 [para. 132]; 84-86 [para. 169]; 92, 95 [para. 493]; 142 [para. 164].

Canada, Law Reform Commission, The Jury in Criminal Trials (1980), Working Paper No. 27, ch. 2 [para. 177].

Canada, Report of Inquiry on War Crimi­nals, The Deschênes Commission (1986), pp. 38, 39 [para. 478]; 153, 165 [para. 150]; 167 [para. 187].

Deschênes Commission, Report of Inquiry on War Criminals - see Canada, Report of Inquiry on War Criminals.

Devlin, The Conscience of the Jury (1991), 107 L.Q.R. 398, generally [para. 182].

Ewaschuk, Criminal Pleadings and Practice in Canada (2nd Ed. 1987), p. 1-14.1 [para. 489].

Gold, M., Lucier v. The Queen, Case Comment (1983), 21 Osgoode Hall L.J. 142, pp. 146, 147 [para. 294].

Hansard, House of Commons Debates, Second Session - Thirty-Third Parlia­ment, vol. VII (March 12, 1987), p. 4078 [para. 184]; vol. IV (August 27, 1987), pp. 8264, 8265 [para. 185].

Morgan, Edmund M., Article (1948), 62 Harv. L. Rev. 177, pp. 182 [para. 273]; 183 [paras. 273, 274]; 184 [para. 274]; 185 [para. 275].

Paciocco, The Constitutional Right to Present Defence Evidence in Criminal Cases (1985), 63 Can. Bar Rev. 519, generally [para. 290].

Phipson on Evidence, generally [para. 466].

Report of Inquiry on War Criminals - see Canada, Report of Inquiry on War Crim­inals.

Salhany, Canadian Criminal Procedure (5th Ed. 1989), p. 17 [para. 105].

United Kingdom, English Law Commis­sioners, Report on the Territorial and Extraterritorial Extent of the Criminal Law (1978), p. 1 [para. 113].

Wigmore on Evidence (3rd Ed. Chad­bourn Rev. 1974), vol. 5, p. 253 [paras. 279, 282].

Williams, Textbook of Criminal Law (2nd Ed. 1978), pp. 124, 125 [para. 63].

Williams, G., Venue and the Ambit of the Criminal Law (1965), 81 M.L.R. 276, generally [para. 115].

Williams and Castel, Canadian Criminal Law: International and Transnational Aspects (1981), pp. 4, 5 [para. 112]; 137 [para. 526].

Counsel:

Christopher A. Amerasinghe and Thomas C. Lemon, for the appellant;

Douglas H. Christie and Barbara Kulaszka, for the respondent.

This appeal was heard before Dubin, C.J.O., Tarnopolsky, Arbour, Osborne and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on April 29, 1992, including the following opinions:

Arbour, Osborne and Doherty, JJ.A. - see paragraphs 1 to 348;

Dubin, C.J.O., dissenting - see para­graphs 349 to 451;

Tarnopolsky, J.A., dissenting - see para­graphs 452 to 542.