http://www.cjnews.com/viewarticle.asp?id=2247



Finta case changed war crimes prosecutions in Canada

By PAUL LUNGEN
Staff Reporter
Canadian Jewish News 

January 1, 2004

Imre Finta, a former captain in the Hungarian gendarmerie who was
charged with Nazi-era war crimes, died recently at age 90.

Finta faced four counts including robbery, unlawful confinement,
kidnapping and manslaughter in connection with the forced deportation of
8,617 Hungarian Jews from the provincial town of Szeged. Evidence at his
trial indicated that after being confined in an open-air brickyard, the
Jews were loaded onto sealed trains in inhumane conditions to be sent to
Auschwitz or to forced labour in Nazi-occupied Europe. Many died en
route.

A jury acquitted Finta of all charges, and on March 24, 1994, in a 4-3
decision, the Supreme court of Canada upheld the acquittal. Legal
scholars said the High Court's decision set conditions for conviction so
high that it made it virtually impossible to successfully prosecute Nazi
war criminals in this country.

The court ruled that an accused must not only be shown to have the
requisite mens rea (state of mind) to intend a criminal act, such as
murder or kidnapping, but must also realize the act is part of a war
crime. The court also allowed an accused to escape responsibility if he
or she was merely following orders.

The Finta trial came a few years after the federal government amended
the Criminal Code to give Canadian courts jurisdiction to try alleged
Nazi war criminals. That move was one of several recommendations in the
1986 Deschenes commission report on bringing Nazi criminals to justice.

Leo Adler, director of national affairs for the Simon Wiesenthal Centre,
said the court's decision in the Finta case in effect put an end to war
crimes prosecutions in Canada.

"Instead, the more cumbersome, time-consuming and highly inefficient
process of denaturalization and deportation was instituted in Canada,"
he stated.

"While numerous individuals have been stripped of their citizenship,
none have been forcibly removed. All are still in Canada, either in
various stages of appeal or other litigation, or awaiting cabinet's
order of removal. Some have been waiting for years."

Ed Morgan, a professor of law and Ontario regional chair of Canadian
Jewish Congress, said "the significance [of the Finta case] was that our
Canadian prosecutorial efforts are almost as dead as he is."

The Finta decision "upped the burden to the point where it was not
realistic."

Had the Supreme Court adopted the position set out in a minority
decision by Ontario Court of Appeal chief justice Charles Dubin,
criminal prosecutions may well have continued, Morgan said. Dubin argued
the Crown should only have to show objectively that the acts were war
crimes, not that the defendant knew they were.

Two years ago, the Criminal Code was amended to remove the defence of
following orders. But the government long ago abandoned criminal
prosecutions and focused instead on the civil remedy of stripping
suspects of citizenship and deporting them, Morgan said.

What's more, the Supreme Court decision resonated beyond Nazi-era war
crimes to modern ones. "The same test that were articulated in Finta
would apply to modern day war criminals," he said. "It really had a
chilling effect."

Finta immigrated to Canada in 1951, three years after a Hungarian
tribunal convicted him in absentia of "crimes against the people." He
became a Canadian citizen in 1956. For many years, he operated a
Hungarian restaurant on Bloor Street, a short walk from the Jewish
Community Centre at Bloor and Spadina Avenue.