Rudolph v. Canada (Minister of Employment and Immigration), [1992] 2 FC 653

Federal Court of Appeal

[1] HUGESSEN J.A.:—This s. 28 application attacks a removal order made against the applicant, a national and resident of Germany, on the grounds that he is a person described in s. 19(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2.
19(1) No person shall be granted admission who is a member of any of the following classes:
• • • • •
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission.
[2] The text of the definitions of "war crime" and "crime against humanity" found in s. 7(3.76) of the Criminal Code is as follows:
"crime against humanity" means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;
"war crime" means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.
[3] The applicant, as production director, admittedly called for, made use of and directed forced labour by foreign prisoners in the production of the V-2 rocket at Mittelwerk in the years 1943-45. The conditions under which the prisoners worked were indescribably brutal.
[4] We did not find it necessary to call on the respondent to reply to many of the arguments sought to be advanced by applicant's counsel.
[5] In particular we could find no merit in any of the applicant's Charter or Charter-related arguments. The exclusion of the applicant from Canada does not imperil his life, liberty or security of the person (s. 7 of the Canadian Charter of Rights and Freedoms). Notwithstanding the incorporation by reference into the Immigration Act of certain Criminal Code definitions, the applicant is not before this court as a "person charged with an offence" (s. 11). Nothing in the exclusion from Canada for his past conduct constitutes discrimination against the applicant on any ground listed in s. 15 or on any analogous ground.
[6] Other arguments proposed by the applicant were based on a clear misreading of s. 19(1)(j). It is not retrospective legislation to adopt today a rule which henceforward excludes persons from Canada on the basis of their conduct in the past. Likewise the second, or "Canadian" branch of the "double criminality" requirement of s. 19(1)(j) mandates the notional transfer to Canadian soil of the actus reus only ("an act or omission ... that, if it had been committed in Canada") and not of the entire surrounding circumstances so as to permit a plea of obedience to de facto foreign state authority. In concrete terms, in deciding if the applicant's conduct would have constituted an offence against the laws of Canada, his acts and omissions, but not the entire state apparatus of the Third Reich, are notionally transferred to this country. The fact that the German government ordered or condoned what the applicant did could have been no defence to a charge of doing the same thing in Canada (unless, of course, the German government had been at that time exercising de facto authority in Canada).
[7] This brings us to the main question, and the only one on which we required to hear the respondent, namely, whether the applicant's admitted conduct in Germany in 1943-45 constituted a war crime or a crime against humanity, and whether, if it had been committed in Canada, it would have constituted an offence here.
[8] Section 7(3.76) incorporates by reference into Canadian law both customary and conventional international law. Indeed s. 11(g) of the Charter incorporates them into the very fabric of our Constitution. As was said by Deschênes J. in his monumental Report of the Commission of Inquiry on War Criminals:
In Canada, a person charged with an offence has henceforth no right to an acquittal if the act, when committed, was criminal according to the general principles of law recognized by the community of nations. In entrenching that provision in its Constitution, Canada could not have more clearly acknowledged its respect for international law; it could not have bowed more reverently to the universal belief in a basic law common to all mankind; it could not have more eloquently adopted that law into its own legal system.
[9] There was no clearly applicable express prohibition in conventional international law prior to 1945 against the employment of prisoners in the manufacture of munitions. Such a prohibition could, however, without difficulty be inferred from several articles of the Convention respecting the Laws and Customs of War on Land, concluded at The Hague, October 18, 1907 (Hague IV). We refer in particular to:
ARTICLE VI
The State may utilize the labour of prisoners of war according to their rank and aptitude, officers excepted. The tasks shall not be excessive and shall have no connection with the operations of the war[1]
• • • • •
ARTICLE XXIII
• • • • •
A belligerent is likewise forbidden to compel the nationals of the hostile party to make part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war.[2]
• • • • •
ARTICLE LII
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.[3]
(Emphasis added.)
[10] In our view, the actions of the applicant in forcing civilian prisoners from allied countries to take an active part in the production of the V-2 rocket, whose purpose and eventual actual use was to cause death and destruction amongst the civilian populations of those same countries, fell by necessary implication within the prohibitions listed above. In the context of the total war waged by the Third Reich, the manufacture of armaments whose clear and only purpose was to terrorize civilian populations falls within the concepts of "operations of war" and "taking part in military operations".
[11] We come next to customary international law. That such a body of law exists, and existed in 1943-45 with regard to war crimes and crimes against humanity, cannot be doubted. We need look no further than the preamble of Hague IV:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.[4]
(Emphasis added.)
[12] Following the end of the war in Europe in 1945, the Allied Great Powers concluded the London Agreement on Prosecution and Punishment of Major War Criminals of European Axis. That agreement established the Charter of the International Military Tribunal (I.M.T.), art. VI of which is declaratory of existing customary international law:
ARTICLE VI
The Tribunal established by the Agreement referred to in Article I hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.[5]
[13] The declaratory nature of the Charter of the I.M.T. was formally declared by the I.M.T. in its judgment (the International Military Tribunal: Trial of the Major War Criminals (Nurenberg, Germany, 1948), at p. 461):
The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.
(Emphasis added.)
[14] More important still, since both the London agreement and the judgment of the I.M.T. have been attacked, albeit wrongly, and were so attacked by the present applicant, as being biased, partial, unfair and an example of "victor's justice", is the fact that both the Charter of the I.M.T. and its judgment were specifically affirmed and recognized by Resolution 95(1) of the General Assembly of the United Nations adopted December 11, 1946. That resolution reads (reprinted in Djonovich, D.J., "United Nations Resolutions," vol. I):
95(1). Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal
The General Assembly,
Recognizes the obligation laid upon it by Article 13, paragraph 1, subparagraph a, of the Charter, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification;
Takes note of the Agreement for the establishment of an International Military Tribunal for the prosecution and punishment of the major war criminals of the European Axis signed in London on 8 August 1945, and of the Charter annexed thereto, and of the fact that similar principles have been adopted in the Charter of the International Military Tribunal for the trial of the major war criminals in the Far East, proclaimed at Tokyo on 19 January 1946;
Therefore,
Affirms the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal;
Directs the Committee on the codification on international law established by the resolution of the General Assembly of 11 December 1946 to treat as a matter of primary importance plans for the formulation, in the context of a general codification of offence against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal.
(Emphasis added.)
[15] In our view it would simply not be possible to find stronger evidence of the content of customary international law at the relevant period.
[16] It is equally our view that the applicant's admitted activities give reasonable grounds to believe that he was an active participant and accomplice in both war crimes ("ill-treatment or deportation to slave labour ... of civilian population ... ill treatment of prisoners of war") and crimes against humanity ("enslavement, deportation, and other inhumane acts committed against any civilian populations").[6]
[17] Would the acts and omissions of the applicant have constituted an offence under the laws of Canada if they had been committed here? Amongst his findings of fact the adjudicator specifically included the following:
... in carrying out the normal functions of his job as operations director of the V-2 plant he did aid and abet his superiors who ordered the use of forced labour in connection with military operations of the enemy and employment of prisoners of war in unauthorized work.
• • • • •
... he understood that this system was wrong and that it was not right to use political prisoners to produce a weapon like the V-2.
• • • • •
... he intended to produce V-2 rockets with the use of forced labour manpower.
• • • • •
The effect of requesting additional forced labour and of successfully supervising production of the rockets through the use of this labour was to support the S.S. in the continuation of the confinement of these prisoners for the purpose of working on the V-2.
(Case, pp. 872-3.)
[18] The Criminal Code in force in Canada in the years 1943-45 was c. 36 of the Revised Statutes of 1927. Section 297 of that Code read:
297(1) Every one is guilty of an indictable offence and liable to twenty-five years' imprisonment who, without lawful authority,
(а) kidnaps any other person with intent
(i) to cause such other person to be secretly confined or imprisoned in Canada against his will, or
(ii) to cause such other person to be unlawfully sent or transported out of Canada against his will, or
(iii) to cause such other person to be sold or captured as a slave, or in any way held to service against his will; or
(b) forcibly seizes or confines or imprisons any other person within Canada.
(2) Upon the trial of any offence under this section the non-resistance of a person so unlawfully kidnapped or confined shall not be a defence unless it appears that it was not caused by threats, duress or force, or exhibition of force.
[19] In our view, the adjudicator's above-quoted findings of fact constituted reasonable grounds to believe that the applicant aided and abetted the crime of kidnapping under s. 297(1)(a)(iii): the prisoners were twice taken and carried away, first from their country of origin to the concentration camp ("Dora") and, second, from the latter to the production facilities at Mittlewerk. In the first case this was probably[7] and in the second beyond any doubt for the purpose of causing them to be held to service against their will.
[20] The intervener, Mr. Narvey, has conclusively demonstrated by reference to the applicable Orders in Council that there could be no "lawful excuse" in Canada during the war for sending prisoners of war or civilian internees to involuntary labour or to any labour on armaments or munitions. (See, in particular, Order in Council consolidating various orders re employment of prisoners of war, P.C. 6495, August 18, 1944.)
[21] We are also of the opinion that the adjudicator's findings would constitute reasonable grounds to believe that the applicant aided and abetted the crime of forcible confinement under s. 297(1)(b). That confinement took place within the production facility itself and would not have occurred if the applicant had not requested that the prisoners be brought there.
[22] From what precedes it follows that in our view both branches of the "double criminality" requirement of s. 19(1)(j) have been met and the removal order was properly issued against the applicant.
[23] We would not want to leave this case without mentioning that the adjudicator's decision is not above criticism. Such criticism, however, does not lie in the mouth of the applicant, for if the adjudicator erred it was in imposing too high a standard of proof upon the government and in according to the applicant the benefit of the doubt, something to which s. 19(1)(j) does not entitle him. As matters turn out, however, the error is without consequence.
[24] The s. 28 application will be dismissed.
[25] Application dismissed.