In honour of Canada’s 150th birthday, The CJN presents essays on 10 significant moments in Canadian Jewish history.
When the definitive book is written about Canada’s historical record of dealing with Nazi war criminals and their enablers in our midst, there will be some heroes, but mostly a lot of shame.
For decades after the Second World War, Canadian governments were indifferent to the presence of Nazi war criminals and their enablers in Canada, or eschewed action against them for the self-serving expedient of “avoiding inter-ethnic conflict” during the Cold War. Successive governments justified their unwillingness to follow the right course of action with the convenient fiction that no remedies existed to resolve these cases. The sole exception involved Helmut Rauca, who was charged with aiding and abetting in the murder of more than 11,500 people in Lithuania: in 1983, Rauca was extradited to stand trial in Germany.
But fully four decades would elapse before prime minister Brian Mulroney put an end to the overarching lack of political will. In February 1985, he established a Royal commission with justice Jules Deschênes as its sole commissioner, to investigate how perpetrators of Nazi war crimes and their collaborators entered Canada and the extent of their presence in this country. Deschênes was further mandated to recommend a legal and political framework, in the words of the commission’s terms of reference, “to ensure that war criminals are brought to justice and made to answer for their crimes.”
Deschênes studied almost 900 cases of alleged involvement in war crimes by suspects believed to be living in Canada. In the end, his report identified 20 priority cases for criminal prosecution or civil sanctions and urged the government to investigate and take appropriate action against dozens of others.
To facilitate action, Deschênes recommended a triad of options – criminal prosecution, denaturalization (with or without deportation) and extradition – together with relevant amendments to the Criminal Code of Canada, the Canadian Citizenship Act and the Extradition Act.
The government then established Canada’s war crimes and crimes against humanity program, a partnership between the Department of Justice, the RCMP and Citizenship and Immigration Canada. Henceforth, suspects alleged to have been complicit in war crimes or crimes against humanity would face criminal charges, or the civil procedures of denaturalization and deportation.
The initial heads of the War Crimes Unit had the fire in the belly to prosecute these cases, but by 1992, only four individuals had been indicted. The first three cases ended with one acquittal (Imre Finta); in two cases, the charges were dropped; and the fourth case followed suit two years later, due to the failing health of the suspect. The Supreme Court of Canada eventually dismissed the Crown’s appeal of the Finta acquittal, upholding the constitutionality of the war crimes legislation, but strangely resurrected the “following orders” defence, which was supposedly put to bed at Nuremberg.
For several years after, the government eschewed criminal prosecutions, in favour of citizenship revocation and possible deportation. These civil remedies had been updated post-Deschênes and with the lower evidentiary threshold of denaturalization (“a balance of probabilities”), the Crown actually won a revocation case in 1991. Rather than proving the commission of war crimes beyond a reasonable doubt, the Crown’s onus in these cases was on demonstrating that the suspect had lied or withheld information about his war-time activities and subsequently entered Canada illegally and fraudulently obtained citizenship.
Thus, Canada’s lead Jewish advocacy organization, the Canadian Jewish Congress (CJC), hoped to see numerous civil cases brought forward, while the actuarial tables still held out the chance of success.
CJC understood that the Crown would likely lose some of the cases brought forward, which were, after all, difficult to put together and prosecute, given the length of time that had elapsed, the failing memories of witnesses and suspects, and the challenges of adducing evidence. But if the Crown launched numerous cases, as was happening in the United States, there would surely be enough successes and these cases would become part of the routine administration of justice in Canada.
The CJC fully understood that no punishment could ever be commensurate with the magnitude of the heinous crimes committed by Hitler’s henchmen. Nevertheless, a vigorous stand against the perpetrators and enablers of war crimes and crimes against humanity would have profound consequences, both for the present and the future. Such cases would mete out at least some measure of justice, while protecting the integrity of Canadian citizenship and providing a jurisprudential record, together with the moral authority, to ensure that Canada was not a haven for the war criminals and genocidaires who would arrive here from contemporary conflicts.
In the end, the Crown only launched some 20-odd Nazi-era cases and even where they secured the authority to denaturalize, there were too often lengthy delays in taking action that led to suspects dying, leaving voluntarily or having their cases dropped altogether.
The most egregious failure is the case of Helmut Oberlander, one of Hitler’s elite enablers, who served as a translator with Einsatzkommando 10A (EK 10A), and who has fought a two decade-long battle to keep his citizenship and remain in Canada.
Regrettably, it is the courts that over the years have often been responsible for many of the delays, with years of lengthy continuances, layers of appeal, extended periods before decisions were announced and rulings that often seemed to be more concerned with procedural minutiae than fundamental justice.
Were he alive today, Deschênes would likely be profoundly disappointed by how little was accomplished. But he might at least be pleased to see that Canada has taken some important steps against individuals who have committed war crimes or genocide in modern conflicts. Deportation cases have successfully been launched against perpetrators of the Rwandan genocide and refugee claims made by former members of the Iranian Revolutionary Guard have been denied.
Since “never again” sadly seems to have become “again and again,” at least we can take some comfort from that.
Bernie M. Farber and Eric Vernon were, respectively, the CEO and director of government relations for the now-defunct Canadian Jewish Congress. They both worked on Nazi war crimes cases for over two decades.