R v Perzenowski,

• Date: 24 October 1946
• Docket Number: Case No. 126
• Court: Supreme Court of Alberta (Canada)

Canada, Supreme Court of Alberta (Appellate Division).

(Harvey, C.J.A., Ford, Macdonald and Parlee, JJ.A., and O'Connor, J.)

Case No. 126

Rex

and

Perzenowski et al.

Prisoners of War — Judicial Proceedings Against — Whether Subject to Jurisdiction of Civil Courts — Offence against Fellow Prisoner.

The Facts.—The accused, whose ringleader was Perzenowski, conspired to kill and did kill a fellow prisoner who was believed to be a communist. On indictment they were found guilty in separate trials and convicted. They appealed against the convictions on the ground that the civil courts had no jurisdiction to try them.

Held: that the appeals must be dismissed and the convictions affirmed. Since prisoners of war are subject to the local jurisdiction in the same way as members of the local forces the accused were liable to be tried before the local courts. The argument was stronger in the case of murder, since according to Canadian Law the civil courts have exclusive jurisdiction to try members of the Canadian forces for this offence. Hence the civil courts were the only tribunals for the trial of the accused.

The Court said:

“The appellants are all German prisoners of war who, at the time of the murder, 10th September 1944, were confined in a prisoners of war camp at Medicine Hat in this province, and the murder was that of a fellow German prisoner of war. The argument most strenuously advanced by appellants' counsel was that our court had no jurisdiction to try them for the offence, that their act was an act of war, and that in any event only the military authorities had jurisdiction unless they transferred the jurisdiction to the civil court.

“These matters were considered by the Ontario Court of Appeal in Rex v. BrosigUNKUNK, [1945] O.R. 240, 83 C.C.C. 199, [1945] 2 D.L.R. 232, Abr. Con. 1605, and by this Division in Rex v. Kaehler and StolskiUNKUNK, [1945] 1 W.W.R. 566, 83 C.C.C. 353, [1945] 3 D.L.R. 272; Abr. Con. 1605, in both of which the offence was that of theft, and it was in both of these cases definitely held that the civil courts had jurisdiction, there being no difference in that respect between an offence by a prisoner of war and one by a member of our own armed forces, and that equally the liability was the same.

“As regards the offence of murder, the case is even stronger. Section 69 of The Militia Act, R.S.C. 1927, c. 132, declares the Imperial Army Act, 1881, 44 & 45 Vict., c. 58, to be applicable as if enacted by the Canadian Parliament, and...