R. v. Finta  1 S.C.R. 701 Charter of Rights -- War crimes and crimes against humanity -- Nature and proof of offences -- Defence of police officer following lawful orders -- Whether infringement of principles of fundamental justice
Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Gonthier, Cory, McLachlin and Major JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- War crimes and crimes against humanity -- Nature and proof of offences -- Allegations arising from detention, robbery and deportation to concentration camps of Jewish persons in Nazi-controlled World War II Europe -- Defence of police officer following lawful orders -- Trial judge calling own evidence -- Whether war crimes and crimes against humanity separate crimes from included Criminal Code offences or whether Code provisions jurisdictional allowing Canadian courts to exercise jurisdiction in situations of war crimes or crimes against humanity over criminal activity occurring abroad -- Whether necessary for the jury to decide, beyond a reasonable doubt not only guilt under applicable Criminal Code charges but also whether acts war crimes and/or crimes against humanity -- Whether requisite mens rea for each offence requiring the Crown to prove intent to commit criminal offence and knowledge of factual characteristics of war crimes and/or crimes against humanity -- Whether "peace officer defence" available and nature of that defence -- Whether trial judge's instructions to the jury adequately overcoming prejudice caused by defence counsel's inflammatory and improper jury address -- Whether police statement and deposition of deceased person admissible even though within recognized exception to the hearsay rule -- Whether trial judge properly calling own evidence --Whether trial judge's instructions to the jury relating to the Crown's identification evidence appropriate -- Criminal Code, R.S.C., 1985, c. C-46, ss. 6(2), 7(3.71)(a)(i), (ii), (iii), (b), (3.72), (3.74), (3.76), 15, 25(1), (2), (3), (4), 736.
Constitutional law -- Charter of Rights -- War crimes and crimes against humanity -- Nature and proof of offences -- Allegations arising from detention, robbery and deportation to concentration camps of Jewish persons in Nazi-controlled World War II Europe -- Defence of police officer following lawful orders -- Whether infringement of principles of fundamental justice (s. 7), the right to be informed without unreasonable delay of the specific offence (s. 11(a)), the right to trial within a reasonable time (s. 11(b)), the right to be presumed innocent (s. 11(d)), the requirement that an act or omission constitute an offence (s. 11(g)), the prohibition against cruel and unusual punishment (s. 12) or the equality guarantees (s. 15) -- If so, whether infringement justified under s. 1 --Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(a), (b), (d), (g), 12, 15.
Respondent, a legally trained captain in the Royal Hungarian Gendarmerie, was commander of an investigative unit at Szeged when 8,617 Jewish persons were detained in a brickyard, forcibly stripped of their valuables and deported under dreadful conditions to concentration camps as part of the Nazi regime's "final solution". The only authority for implementing this barbarous policy in Hungary was the Baky Order, a decree of the Hungarian Ministry of the Interior directed to a number of officials including the commanding officers of the gendarme (investigative) subdivisions. This order placed responsibility for executing the plan on the Gendarmerie and certain local police forces.
Respondent was charged under the Criminal Code, R.S.C. 1927, with unlawful confinement, robbery, kidnapping and manslaughter of the victims of Szeged. There were in effect four pairs of alternate counts -- one series as crimes against humanity and the other as war crimes. After the war a Hungarian court tried respondent in absentia and convicted him of "crimes against the people". His punishment in that country became statute-barred and he later benefitted from a general amnesty. The Hungarian trial and conviction were found to be nullities under Canadian law and the amnesty was found not to be a pardon. The pleas of autrefois convict or pardon were therefore not available. Expert opinion at trial was that the Baky Order was manifestly illegal and that a person trained in Hungarian law would have known so.
The Crown's case depended in large measure on the testimony of 19 witnesses who had been interned at Szeged and deported to the concentration camps. The evidence of these survivors fell into four general groups. Six witnesses who knew respondent before the events in issue testified as to things said and done by him at the brickyard and at the train station. A second group consisting of three witnesses who did not know respondent beforehand identified him as having said or done certain things at the brickyard and at the station. A third group consisting of three witnesses who did not know respondent beforehand also testified as to things said and done at the brickyard and at the station. However, this last group based their identification of respondent on statements made to them by others. The fourth group, consisting of eight witnesses who did not know respondent beforehand and did not identify him, gave evidence as to events at the brickyard and the train station. In addition to the evidence of the survivors, the Crown relied on photographs, handwriting and fingerprint evidence to identify respondent as a captain in the Gendarmerie at Szeged at the relevant time. Expert and documentary evidence was tendered to establish the historical context of the evidence, the relevant command structure in place in Hungary in 1944 and the state of international law in 1944.
During the trial, the trial judge, on behalf of the defence, called the evidence of two eye-witnesses, Ballo and Kemeny. The statement and minutes of a third witness, Dallos, whose testimony was given at respondent's Hungarian trial, was also admitted. Dallos, a survivor of the brickyard who died in 1963, gave evidence of the existence of a lieutenant who might have been in charge of the confinement and deportation of the Jews at the brickyard. The trial judge ruled that, although the evidence was of a hearsay nature, it was admissible. He also stated that, together with other evidence, it could leave the jury with a reasonable doubt about the responsibility of respondent for confinement and brickyard conditions. The trial judge warned the jury in his charge about the hearsay nature of the evidence.
Respondent was acquitted at trial and a majority of the Court of Appeal dismissed the Crown's appeal from that acquittal. This judgment was appealed and cross-appealed.
Several issues were raised on appeal. Firstly, was s. 7(3.71) of the Criminal Code merely jurisdictional in nature or did it create two new offences, a crime against humanity and a war crime, and define the essential elements of the offences charged such that it was necessary for the jury to decide, beyond a reasonable doubt, not only whether the respondent was guilty of the 1927 Criminal Code offences charged, but also whether his acts constituted crimes against humanity and/or war crimes as defined in ss. 7(3.71) and 7(3.76)? Secondly, did the trial judge misdirect the jury as to the requisite mens rea for each offence by requiring the Crown to prove not only that the respondent intended to commit the 1927 Criminal Code offences charged, but also that he knew that his acts constituted war crimes and/or crimes against humanity as defined in s. 7(3.76)? Thirdly, did the trial judge err in putting the "peace officer defence" (s. 25 of the Code), the "military orders defence" and the issue of mistake of fact to the jury and did he misdirect the jury in the manner in which he defined those defences? Fourthly, did the trial judge's instructions to the jury adequately correct defence counsel's inflammatory and improper jury address so as to overcome the prejudice to the Crown and not deprive it of a fair trial? Fifth, was the Dallos "evidence" (police statement and deposition) admissible and, in particular, in finding it admissible even though it did not fall within any of the recognized exceptions to the hearsay rule? Sixth, did the trial judge err calling the Dallos evidence and the videotaped commission evidence as his own evidence, thereby making it unnecessary for the defence to do so and as a result depriving the Crown of its statutory right to address the jury last, and if so, did it result in a substantial wrong or miscarriage of justice? Seventh, were the trial judge's instructions to the jury relating to the Crown's identification evidence appropriate.
The constitutional questions stated on the cross-appeal queried whether s. 7(3.74) and s. 7(3.76) of the Code violate ss. 7 (the principles of fundamental justice), 11(a) (the right to be informed without unreasonable delay of the specific offence), 11(b) (the right to trial within a reasonable time), 11(d) (the right to be presumed innocent), 11(g) (the requirement that an act or omission constitute an offence), 12 (the prohibition against cruel and unusual punishment) or 15 (the equality guarantees) of the Canadian Charter of Rights and Freedoms, and if so, whether they were justifiable under s. 1.
Held (La Forest, L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
Held: The cross-appeal should be dismissed. Sections 7(3.74) and 7(3.76) of the Criminal Code do not violate ss. 7, 11(a), (b), (d), (g), 12 or 15 of the Charter.
Per Gonthier, Cory and Major JJ.:
Canadian courts have jurisdiction to try individuals living in Canada for crimes which they allegedly committed on foreign soil only when the conditions specified in s. 7(3.71) are satisfied. The most important of those requirements, for the purposes of the present case, is that the alleged crime must constitute a war crime or a crime against humanity. It is thus the nature of the act committed that is of crucial importance in the determination of jurisdiction. Canadian courts may not prosecute an ordinary offence that has occurred in a foreign jurisdiction. The only reason Canadian courts can prosecute these individuals is because the acts alleged to have been committed are viewed as being war crimes or crimes against humanity. A war crime or a crime against humanity is not the same as a domestic offence. There are fundamentally important additional elements involved in a war crime or a crime against humanity.
The Requisite Elements of the Crime Described by Section 7(3.71)
Canadian courts normally do not judge ordinary offences that have occurred on foreign soil but have jurisdiction to try individuals living in Canada for crimes which they allegedly committed abroad when the conditions specified in s. 7(3.71) are satisfied. Here, the most important of those requirements is that the alleged crime must constitute a war crime or a crime against humanity which, compared to a domestic offence, has fundamentally important additional elements. It is thus the nature of the act committed that is of crucial importance in the determination of jurisdiction.
In order to constitute a crime against humanity or a war crime, there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity. The mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crime against humanity. It is not necessary, however, to establish that the accused knew that his or her actions were inhumane. Similarly, for war crimes, the Crown would have to establish that the accused knew or was aware of the facts or circumstances that brought his or her actions within the definition of a war crime. The accused would have to have known that a state of war existed and that his or her actions even in a state of war, would shock the conscience of all right thinking people. Alternatively, the mens rea requirement of both crimes against humanity and war crimes would be met if it were established that the accused was wilfully blind to the facts or circumstances that would bring his or her actions within the provisions of these offences.
The wording of the section, the stigma and consequences that would flow from a conviction all indicate that the Crown must establish that the accused committed a war crime or a crime against humanity. This is an integral and essential aspect of the offence. It is not sufficient simply to prove that the offence committed in Canada would constitute robbery, forcible confinement or manslaughter. An added element of inhumanity must be demonstrated to warrant a conviction under this section. The mental element required to be proven to constitute a crime against humanity is that the accused was aware of or wilfully blind to facts or circumstances which would bring his or her acts within the definition of a crime against humanity. However it would not be necessary to establish that the accused knew that his or her actions were inhumane. It is sufficient if the Crown establishes that the actions viewed by a reasonable person in the position of the accused were inhumane.
Similarly for war crimes the Crown would have to establish that the accused knew or was aware of facts that brought his or her action within the definition of war crimes, or was wilfully blind to those facts. It would not be necessary to prove that the accused actually knew that his or her acts constituted war crimes. It is sufficient if the Crown establishes that the acts, viewed objectively, constituted war crimes.
The defence of obedience to superior orders and the peace officer defence are available to members of the military or police forces in prosecutions for war crimes and crimes against humanity. Those defences are subject to the manifest illegality test: the defences are not available where the orders in question were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to superior orders and the peace officer defence will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. There can be no moral choice where there was such an air of compulsion and threat to the accused that he or she had no alternative but to obey the orders.
Trial Judge's Calling Evidence
The trial judge, in order to take the unusual and serious step of the court's calling witnesses, must believe it essential to exercise his or her discretion to do so in order to do justice in the case. Here, where the trial judge had decided that certain evidence was essential to the narrative, it was a reasonable and proper exercise of this discretion to call the evidence if the Crown refused to do so. It is essential in a case where the events took place 45 years ago that all material evidence be put before the jury. With the passage of time it becomes increasingly difficult to get at the truth of events: witnesses die or cannot be located, memories fade, and evidence can be so easily forever lost. It is then essential that in such a case all available accounts are placed before the court. The argument that all cases pose difficulties in presenting a defence fails to recognize that this case, because of the time elapsed, presents very real difficulties for the defence in getting at the truth which is not comparable to other cases.
The trial judge properly took into account the fact that if he did not call the evidence the defence would be required to do so and as a result lose its right to address the jury last. Where the trial judge has found that the evidence in question should have been called by the Crown, the issue of who addresses the jury last is indeed relevant. If this were not so it would be open to the Crown not to call certain evidence in order to force the defence to give up its right to address the jury last. (The Crown here did not act for improper reasons.) The opportunity for such abuse should not be left open. Further, the trial judge's concern for the order of addresses to the jury was secondary to his finding that the evidence was essential to the narrative.
Finally, the trial judge did not need to wait until after the defence had decided whether or not to call evidence before he called the evidence in question. The trial judge could not wait until the defence had finished its case without risking offending the rule that a trial judge should not call evidence him- or herself after the close of the defence case unless the matter was unforeseeable. If the trial judge had waited, and the defence had elected not to call evidence, the trial judge would have been prevented from calling the evidence at that time, as the matter was readily foreseeable, and calling it at that point would have been prejudicial to the defence.
Does Section 7(3.74) and (3.76) of the Criminal Code Violate Section 7 of the Charter Because these Purport to Remove the Protection of Section 15 of the Criminal Code?
Respondent, even though he acted in obedience to the law (the Baky Order), could not argue that he had an honest but mistaken belief that that decree was lawful so as to absolve him of fault. He still had the guilty mind required to found a conviction. Section 7(3.74) does not, by permitting the removal of this defence, result in a breach of fundamental justice in violation of s. 7 of the Charter. When the Criminal Code provides that a defence is to be expressly excluded it is because Parliament has determined that the criminal act is of such a nature that not only is the disapprobation of society warranted, but also the act cannot be justified by the excluded defence. Such a legislative provision will not generally violate s. 7 when a defence is inconsistent with the offence proscribed in that it would excuse the very evil which the offence seeks to prohibit or punish.
Do the Impugned Sections of the Code Violate the Charter by Reason of Vagueness?
International law prior to 1944 provided fair notice to the accused of the consequences of breaching the still evolving international law offences. The legislation is not made uncertain merely because the entire body of international law is not codified and that reference must be made to opinions of experts and legal writing in interpreting it. Differences of opinion of international law experts as to these provisions and the questions of fact and law that arise in interpreting and applying them do not render them vague or uncertain. It is the court that must ultimately interpret them.
Do the Impugned Sections of the Code Violate Section 7 and Section 11(g) of the Charter?
Although the average citizen is not expected to know in detail the law with respect to a war crime or a crime against humanity, it cannot be argued that he or she had not substantive fair notice of it or that it is vague. Everyone has an inherent knowledge that such actions are wrong and cannot be tolerated whether this perception arises from a moral, religious or sociological stance. These crimes, which violate fundamental human values, are vehemently condemned by the citizens of all civilized nations and are so repulsive, reprehensible and well understood that the argument that their definition is vague or uncertain does not arise. Similarly, the definitions of "war crimes" and "crimes against humanity" do not constitute a standardless sweep authorizing imprisonment. The standards which guide the determination and definition of crimes against humanity are the values that are known to all people and shared by all.
The impugned sections do not violate ss. 7 and 11(g) of the Charter because of any allegedly retrospective character. The rules created by the Charter of the International Military Tribunal and applied by the Nuremberg Trial represented "a new law". The rule against retroactive legislation is a principle of justice. A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed, however, is an exception to the rule against ex post facto laws. Individual criminal responsibility represents certainly a higher degree of justice than collective responsibility. Since the internationally illegal acts for which individual criminal responsibility has been established were also morally the most objectionable and the persons who committed them were certainly aware of their immoral character, the retroactivity of the law applied to them cannot be considered as incompatible with justice. Justice required the punishment of those committing such acts in spite of the fact that under positive law they were not punishable at the time they were performed. It follows that it was appropriate that the acts were made punishable with retroactive force.
Did the Pre- and Post-Charge Delay Violate Sections 7, 11(b) and 11(d) of the Charter?
The pre- and post-charge delay does not violate the Charter principles of fundamental justice (s. 7), the right to trial without unreasonable delay (s. 11(b)) and the right to be presumed innocent (s. 11(d)). The principles set out in R. v. Askov accordingly need not be extended to the situation here. Indeed, the delay was far more likely to be prejudicial to the Crown's case than it was to that of the defence. The documentary and physical evidence not available to the defence was probably destroyed during the war and therefore would not have been available for trial even if held a few years after the war. With regard to post-charge delay, the indictment was preferred less than a year after the legislation was proclaimed. This was a minimal and very reasonable period of delay.
Do the Impugned Sections of the Code Violate Sections 7 and 15 of the Charter?
The impugned sections do not infringe the equality provisions of s. 15 of the Charter. The fact that the legislation relates only to acts or omissions performed by individuals outside Canada is not based on a personal characteristic but on the location of the crime. The group of persons who commit a war crime or a crime against humanity outside of Canada cannot be considered to be a discrete and insular minority which has suffered stereotyping, historical disadvantage or vulnerability to political and social prejudice. Similarly, these sections, notwithstanding the allegation that they allegedly subject the individual to prosecution based on an extension of jurisdiction for crimes for which the people of Canada are not criminally liable, are not contrary to the principles of fundamental justice.
Do the Impugned Provisions Violate Section 12 of the Charter?
No argument was made with respect to s. 12 (cruel and unusual punishment) of the Charter. It was not necessary to consider the application of s. 1.
Per Lamer C.J.: The appeal should be dismissed for the reasons given by Cory J. The cross-appeal should be dismissed as being moot.
Per La Forest, L'Heureux-Dubé and McLachlin JJ. (dissenting 1 ): Section 7(3.71) of the Criminal Code confers jurisdiction on Canadian courts to prosecute foreign acts amounting to war crimes or crimes against humanity domestically, according to Canadian criminal law in force at the time of their commission. The provision does not create any new offences. The person who commits the relevant act is not declared guilty of an offence as in all other criminal offences. On the contrary, the nucleus of the provision is its predicate, "shall be deemed to commit that act or omission in Canada at that time". Moreover, no penalty is stipulated. A finding of war crime or crime against humanity does not result in punishment but rather merely opens the door to the next procedural step -- the placing before the jury of the charges against the accused for offences defined in the Code in respect of acts done outside the country, so long as those acts constitute crimes against humanity or war crimes.
The war crimes and crimes against humanity provision stands as an exception to the general rule regarding the territorial ambit of criminal law. Parliament intended to extend the arm of Canada's criminal law in order to be in a position to prosecute these extraterritorial acts if the alleged perpetrators were discovered here. Although exceptions to s. 6 (which limits the Code's application to Canada) can also take the form of offence-creating provisions that expressly embrace extraterritorial acts, the wording of s. 7(3.71) closely resembles that of other purely jurisdiction-endowing provisions and can be contrasted with these offence-creating provisions. Had Parliament wished specifically to make war crimes and crimes against humanity domestic offences, it would have been much easier to do so directly.
No distinction should be made between territorial jurisdiction of the court (going to the determination of the proper Canadian court to hear a case) and territorial reach of the criminal law (affecting the definition of the offences themselves). Section 6(2) of the Code does not render Canadian territoriality a defining element of its offences. Rather, it merely precludes a person's conviction or discharge for an offence when committed outside Canada in response to the structure of international order which entrusts prosecution of a criminal act to the state in which that act was committed. The fact that an act or an omission may have taken place outside Canada's borders does not negate its quality as culpable conduct.
Questions of jurisdiction are matters of law entrusted to the trial judge. The terms of s. 6 are not absolute; they specifically envision exceptions, whether in the Code itself or in other Acts of Parliament. Deciding questions of jurisdiction has been found to be properly entrusted to the trial judge in other circumstances in R. v. Balcombe and no reason exists for a different rule to apply to the s. 6 inquiry. Whether the criteria in s. 7(3.71), (whether the act amounts to a war crime or crime against humanity, whether it constituted an offence pursuant to Canadian law at the time of commission, and whether identifiable individuals were involved) creating the exception to s. 6 have been met is a question of law entrusted to the trial judge and not to the jury. If these requirements are not satisfied, the exception to the rule of no extraterritorial application is not met, and the court must decline jurisdiction and acquit the accused even if all the elements of the offences of manslaughter, robbery, confinement or assault may be satisfied.
The jury's role will be similar to that exercised in an ordinary prosecution under our domestic law. Its function, and the charge made to it, will be like those that would be made to a jury determining the underlying offence only. The sole difference will be in relation to justifications, excuses and defences. Section 7(3.73) provides the accused with the benefit of pleading all available international justifications, excuses and defences in addition to those existing under domestic law. The one domestic defence made unavailable, by the operation of s. 7(3.74), is the defence of obedience to de facto law.
The requirements for jurisdiction need not be proved beyond a reasonable doubt. The trial judge, however, must consider the evidence to satisfy the jurisdiction requirements and not simply base his or her assessment of these requirements on the charges as alleged. Because some of the facts necessary to establish jurisdiction are not the same as those necessary for the jury's determination of the underlying offence, all the findings of fact cannot be left to the jury. Here, since the jury will have to hear much of the same evidence related to the offences as the trial judge would have to hear in relation to the jurisdiction issue, it will usually be more efficient to have the trial judge consider the jurisdiction issue at the same time as the jury hears the evidence related to the offence. If desired, and to keep a jury's mind clear, the parts of the evidence or expert testimony that are completely irrelevant to the jury's concerns can be heard in the jury's absence. At the close of the evidence, the judge will decide whether the conditions for the exercise of jurisdiction have been met. If so, then the court can proceed to hear the jury's verdict.
War crimes and crimes against humanity do not require an excessively high mens rea going beyond that required for the underlying offence. In determining the mens rea of a war crime or a crime against humanity, the accused must have intended the factual quality of the offence. In almost if not every case, the domestic definition of the underlying offence will capture the requisite mens rea for the war crime or crime against humanity as well. Thus, the accused need not have known that his or her act, if it constitutes manslaughter or forcible confinement, amounted to an "inhumane act" either in the legal or moral sense. One who intentionally or knowingly commits manslaughter or kidnapping would have demonstrated the mental culpability required for an inhumane act. The normal mens rea for confinement, robbery, manslaughter, or kidnapping, whether it be intention, knowledge, recklessness or wilful blindness, is adequate.
The additional conditions of the actus reus requirement under international law are intended to be used to ascertain whether the factual conditions are such that the international relations concerns of extraterritorial limits do not arise. Since in almost if not every case the mens rea for the war crime or crime against humanity will be captured by the mens rea required for the underlying offence that will have to be proved to the jury beyond a reasonable doubt, the trial judge will rarely, if ever, have to make any additional findings in relation to the mens rea to satisfy the jurisdiction requirements.
If a justification, excuse or defence that would have been available had the accused been charged with the crime under international law rather than the underlying crime is available, it should be referred to the jury with appropriate instructions whether the issue arises on the evidence presented by the Crown or the accused. Under s. 7(3.73) of the Code, an accused may rely on any "justification, excuse or defence available . . . under international law" as well as under the laws of Canada. The jury would then have to decide the issue with any reasonable doubt decided in favour of the accused.
The scheme in s. 7(3.71)-(3.77) does not deprive the accused of his or her rights in a manner inconsistent with the principles of fundamental justice. The accused cannot be found guilty of the offence charged (the underlying domestic offence) unless the jury finds the relevant mental element on proof beyond a reasonable doubt. This mental element coincides with that of the war crime or crime against humanity. And if any excuse, justification or defence for the act arises under international law, the accused is entitled to the benefit of any doubt about the matter, including any relevant mens rea attached to such excuse, justification or defence. Charter jurisprudence relating to fundamental justice does not require, merely because a special stigma might attach to certain offences, that only the jury be entrusted with finding mens rea and only on a standard of proof beyond a reasonable doubt. Any stigma attached to being convicted under war crimes legislation does not come from the nature of the offence, but more from the surrounding circumstances of most war crimes and often is a question of the scale of the acts in terms of numbers.
Under the jurisdictional portion of s. 7(3.71), the inquiry goes to assessing whether Canadian courts are able to convict or discharge the perpetrator of the relevant conduct. The preliminary question, whether the relevant conduct constitutes a situation evaluated by the international community to constitute one warranting treatment exceptional to the general precepts of international law, involves an assessment of Canada's international obligations and other questions concerning the interrelationship of nations. The culpability of the acts targeted by this provision, from Canada's perspective, arises from, and will be assessed according to Canadian standards of offensive behaviour as embodied in the Code. The preliminary question of war crimes or crimes against humanity is more of a political inquiry than one of culpability and accordingly does not traditionally fall within the province of the jury. The international community actively encourages the prosecution of those whose criminal conduct also constitutes war crimes or crimes against humanity.
It is not unfair or contrary to our philosophy of trial by jury to entrust determination of jurisdiction to the trial judge rather than the jury. The assignment of this task is just and well-designed given the technical nature of the actual factual findings that must be made by the trial judge on the preliminary jurisdictional question, as well as the complicated nature of the international law with which he or she must grapple. The technical nature of these inquiries, unrelated as they are to matters of culpability, do not form part of the special capacity of the jury.
The jury's role in the prosecution remains extensive. As in any other domestic prosecution, the jury is the sole arbitrator of whether both the actus reus and the mens rea for the offence charged are present and whether any domestic defences are available. Moreover, in addition to its normal functions, the jury also decides whether any international justification, excuse or defence is available. These determinations are not merely technical findings to supplement the extensive role of the trial judge; on the contrary, they go to the essence of the accused's culpability. The jury alone decides whether the accused is physically and mentally guilty of the offence charged, on proof beyond a reasonable doubt. The only element removed from the jury's usual scope of considerations in regular domestic prosecutions is the de facto law defence (s. 7(3.74)).
Section 7(3.74) does not violate the s. 7 of the Charter by removing available defences. Subsections 7(3.73) and (3.74) qualify each other and together indicate that the accused has the benefit of all available international and domestic justifications, excuses or defences. The operation of s. 7(3.73) only rules out resort to the simple argument that, because a domestic law existed, the conduct was authorized and so excused. The whole rationale for limits on individual responsibility for war crimes and crimes against humanity is that there are higher responsibilities than simple observance of national law. That a law of a country authorizes some sort of clearly inhumane conduct cannot be allowed to be a defence.
The peace officer and the military orders defences put to the jury here exist under Canadian domestic law and relate to arguments based on authorization or obedience to national law. The rationale for these defences is that a realistic assessment of police or military organizations requires an element of simple obedience; there must be some degree of accommodation to those who are members of such bodies. At the same time, totally unthinking loyalty cannot be a shield for any human being, even a soldier. The defence is not simply based on the idea of obedience or authority of de facto national law, but rather on a consideration of the individual's responsibilities as part of a military or peace officer unit. Essentially obedience to a superior order provides a valid defence unless the act is so outrageous as to be manifestly unlawful. Further, an accused will not be convicted of an act committed pursuant to an order wherein he or she had no moral choice but to obey.
The war crime provisions do not violate ss. 7 and 11(g) of the Charter because they are retroactive. The accused is not being charged or punished for an international offence, but a Canadian criminal offence that was in the Code when it occurred.
International law in this area was neither retroactive nor vague. Even on the basis of international convention and customary law, there are many individual documents that signalled the broadening prohibitions against war crimes and crimes against humanity. Numerous conventions indicated that there were international rules on the conduct of war and individual responsibility for them. International law, as expressed by international and national tribunals, continues to maintain that crimes against humanity and war crimes were well established. The strongest source in international law for crimes against humanity, however, are the common domestic prohibitions of civilized nations. The conduct listed under crimes against humanity was of the sort that no modern civilized nation was able to sanction.
The Code provisions do not violate s. 11(g) as being retroactive. Section 11(g) of the Charter specifically refers to the permissibility of conviction on the basis of international law or the general principles of law recognized by the community of nations. One of the factors motivating the terms of the provision was to remove concerns about otherwise preventing prosecution of war criminals or those charged with crimes against humanity.
Section 7(3.71) (relating to the generality of the definitions of war crimes and crimes against humanity) read with s. 7(3.76) does not violate s. 7 of the Charter by reason of vagueness. The offence with which the accused is charged and for which he will be punished is the domestic offence in the 1927 Code, and it is readily apparent that the cross appeal is not concerned with arguing that these standard Code provisions are unconstitutionally vague. The standard of vagueness necessary for a law to be found unconstitutional is that the law must so lack in precision as not to give sufficient guidance for legal debate. The contents of the customary, conventional and comparative sources provide enough specificity to meet this standard for vagueness.
The pre-trial delay of 45-odd years between the alleged commission of the offence and the laying of charges did not violate ss. 7, 11(b) and 11(d) of the Charter. Pre-charge delay, at most, may in certain circumstances have an influence on the assessment of whether post-charge delay is unreasonable but of itself is not counted in determining the delay. The Charter does not insulate accused persons from prosecution solely on the basis of the time that elapsed between the commission of the offence and the laying of the charge. No complaint was made as to post-charge delay.
Section 7(3.71) does not violate ss. 7 and 15 of the Charter by applying only to acts committed outside Canada. This provision is jurisdictional and creates no new offences. Whether impugned conduct is committed abroad or in Canada, the accused would be charged with the same offence and subject to the same penalty, if convicted. Indeed, any difference in treatment favours the extraterritorial perpetrator.
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