The Deschenes Report: The Commission of Inquiry on War Criminals.
Publication:
The Empire Club of Canada Addresses (Toronto, Canada), 24 Mar 1987, p. 347-357


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Hnatyshyn, The Honourable Ray, Speaker
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Text
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Speeches
Description:
A joint dinner with The Canadian Club of Toronto. Details of the Deschenes Commission report and the need to improve and strengthen the Canadian justice system on a continuing basis. The government's recent response to the report of the Commission of Inquiry on War Criminals. The aboriginal Constitutional process. The government's commitment to insure a more effective, efficient and accessible justice system in Canada. Basic principles of our justice system. Major objectives and their accomplishment, of the Deschenes report. A detailed description of the report. Legal alternatives for proceedings against individuals suspected of war crimes. Amendments to the Criminal Code. Recommendations to strengthen Canada's immigration and citizenship processes to ensure the difficulty of entry for war criminals. Changes to the Citizenship Act. The intention of the government to proceed with the recommendations of the Deschenes report. The response of Canadians to this intent. The aboriginal Constitutional process: negotiations, suggestions and recommendations. The need for Canadians to be informed as to their justice system. Suggestions to make that happen.
Date of Original:
24 Mar 1987
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Language of Item:
English
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The speeches are free of charge but please note that the Empire Club of Canada retains copyright. Neither the speeches themselves nor any part of their content may be used for any purpose other than personal interest or research without the explicit permission of the Empire Club of Canada.
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Full Text
"THE DESCHENES REPORT: THE COMMISSION OF INQUIRY ON WAR CRIMINALS"
The Honourable Ray Hnatyshyn Minister of Justice and Attorney General of Canada
Co-Chairmen: James K. Warrilow, President, The Canadian Club of Toronto
Nona Macdonald, President, The Empire Club of Canada

Biography:

Born and educated in Saskatoon, Mr. Hnatyshyn is a graduate of the University of Saskatchewan and is former president of the Saskatchewan Law Society.

He was first elected to the House of Commons as a Member for Saskatoon West in 1974. He served as Minister of Energy, Mines and Resources and Minister of State for Science and Technology in former Prime Minister Joe Clark's Government.

He was Opposition House Leader during the most recent Liberal Government and was appointed Government House Leader when Brian Mulroney's Tory administration swept into power in September 1984. He was named President of the Privy Council in 1985 and Minister Responsible for Regulatory Affairs in February 1986. He was appointed Minister of Justice and Attorney General last June.

Honourable Ray Hnatyshyn:

It's such a pleasure to be with you this evening. This is an excellent opportunity for me to speak to you concerning the Deschenes Commission report and other matters of concern to me and to all Canadians who share the Government's conviction that the task of improving and strengthening the Canadian justice system must be a continuing one.

This evening I would like to speak to you first concerning the Government's recent response to the report of the Commission of Inquiry on War Criminals and then discuss the aboriginal Constitutional process. Finally, I would like to mention briefly the Government's commitment to insure a more effective, efficient and accessible justice system in Canada.

During my discussion, you may have the feeling that not everything I say is brand new. This perception is an accurate one, for the initiatives we are pursuing are based on values and ideals we already possess. Not only must we look to changing vistas to bring forth new ideas, but, from time to time, we must remind ourselves of those things we already know. I realise that our laws, as they exist in Canada today, are a reflection of both old and new values. As the needs of society change, our laws do not remain stagnant, but instead, respond to conform to those needs. Sometimes this results in the promulgation of new legislation, sometimes we return to the basics and breathe new life into those values long entrenched.

The bringing to justice of those who have committed crimes is one such basic principle. It is a principle that applies equally in times of peace and in times of war. The need to observe that principle is not one that lessens with the passage of time but one that must be faced and squarely addressed whenever crimes come to the attention of legal authorities. It is this principle that underlies the government's response to the Deschenes Report.

I think it is important to put the Deschenes process in perspective. Reports during the early 1980s suggested that the number of war criminals in Canada was in the area of two thousand to three thousand and could reach as high as six thousand. It was claimed that Doctor Joseph Mengele, notorious for brutal and inhumane medical experiments, had come, or attempted to come, to Canada. As these accounts persisted, it became increasingly apparent that some action was required to resolve the existing uncertainties and to ensure that the interests of justice were served. It was also necessary to identify the alternatives open once its precise scope was identified.

To allow the factual issues to be clarified and the legal alternatives to the resolution of this problem to be clearly set out, the Commission of Inquiry on War Criminals was established on February 7, 1985, with The Honourable Mr. Justice Jules Deschenes of the Superior Court of Quebec as Commissioner. As you know, Mr. Justice Deschenes reported on December 30th, 1986.

Mr. Justice Deschenes' report did accomplish its major objectives. It substantially clarified the factual scope of the war criminals problem and it identified the various legal alternatives to dealing with it.

The report was divided into two parts. The first of these was recommended by the Commission for publication. It set out in detail the legal alternatives available to deal with war criminals. It also discussed the cases of eight hundred and twentytwo individuals against whom allegations had been made.

The second portion of the report discussed twenty-nine cases in which the Commission originally felt that the seriousness of the allegations and the possible availability of evidence merited special attention. Of the twenty-nine cases considered, the commission felt in nine that no action was merited in view of its findings. The Commission recommended that this part of its report, entitled Part 11 (Confidential) not be released.

From the Report, it is clear that the scope of the problem of war criminals in Canada has been considerably exaggerated by some. The actual number of individuals identified as possibly being war criminals was in fact fewer than one thousand. Of these, Mr. Justice Deschenes was able to eliminate a large number. Today just slightly more than two hundred remain for further investigation.

Other claims were investigated and clarified as well. Dr. Joseph Mengele never came to Canada nor applied to come. Allegations of war crimes against the Galicia Division as a unit were found to be unproven.

In looking at the legal alternatives for proceedings against individuals suspected of war crimes, three possible approaches were identified. There were, first: the amendment of the Criminal Code to try suspected individuals here in Canada; second: extradition of individuals against whom allegations were made to face trial elsewhere; or third: denaturalisation and deportation, which would see the individuals concerned stripped of their Canadian citizenship because of fraud at the time of entry and then deported from Canada.

The extradition alternative would require in many cases changes in Canada's extradition policies and practices, such as a broadened extradition to Israel or extradition to Eastern European countries including the Soviet Union.

The alternative of denaturalisation and deportation would have required amendments to the law with retroactive effect. In considering its response, it was necessary for the Government to reflect not only on the individual cases and circumstances identified, but also to consider carefully the issues of principle that must be met in its response.

The first of these was that, despite the lapse of time and the serious practical problems encountered, individual war criminals must be brought to justice. Canada must be concerned if even one individual guilty of war crimes has found refuge from justice here. As I have mentioned, it has long been a principle of our law that individuals guilty of serious crime must be sought out and punished. The Government therefore committed itself to carefully following up on the individual cases identified by the Commission for further investigation and taking further measures as required.

A second principle that was clear to the Government was that it was not proper that Canada in any way compromise its standards of law and justice to address this specific problem. This could only be guaranteed if the individuals concerned could, so far as possible, be tried here in Canada and in accordance with the legal rights guaranteed in the Canadian Charter of Rights and Freedoms and the other protections of our own system of justice. A careful reflection on these principles led us to the following conclusions.

The Criminal Code must be amended to give Canadian courts jurisdiction to try war crimes or crimes against humanity in Canada, if the conduct in question would have amounted to a criminal offence in Canada.

The trial within Canada of individuals accused of war crimes should not be restricted to just addressing past crimes but will also pertain to modern conflicts. To ensure that the required amendment effectively addresses past and future war crimes, careful attention is being directed to the development of the precise standards and definitions to be utilised in the proposed Criminal Code provisions.

The commission made a number of recommendations to strengthen our immigration and citizenship processes to ensure that future entry of war criminals into Canada is made as difficult as possible.

Some of the recommendations to strengthen the Immigration Act include: the questioning of applicants about past criminal activities that may have amounted to war crimes, the maintenance of immigration forms until the applicant is no longer alive, and the amendment of Section 127 of the Immigration Act to provide that protection for individuals with an established Canadian domicile would not apply to those involved in war crimes.

With respect to the Citizenship Act, the Commission recommended that the Act be amended to bar citizenship to those involved in war crimes, to make participation in war crimes a specific ground for revoking citizenship and to provide that removal of citizenship be applicable to past war crimes.

The Government agrees that the need exists to tighten up Canada's practices with respect to the entry into Canada and the processes obtaining Canadian citizenship to ensure that Canada will not be thought of as a place of refuge for individuals who have participated in war crimes or crimes against humanity. To this end, the Government will proceed with the measures recommended by the Deschenes Commission to ensure that, in the future, immigration into Canada and Canadian citizenship are not available to those who have participated in war crimes in other countries.

The immigration screening process and interview procedure will be tightened up as recommended. Other protections of the Immigration Act and of the convention Relating to the Status of Refugees will be made expressly inapplicable to war criminals.

In future, Canadian citizenship will be denied to those who have participated in war crimes. This will be done by amending the Citizenship Act to make complicity in war crimes as defined in the amended Criminal Code a bar to Canadian Citizenship.

Since it is not appropriate to take extraordinary steps to export this problem, measures to extradite individuals or to remove their citizenship and deport them ought to be taken only in a manner consistent with existing Canadian laws.

With respect to those already here in Canada, the Government will not change the law retroactively. Hence it will proceed under existing laws and practices to address the problem of individuals whose citizenship has been obtained through demonstrable fraud.

The Commission also considered the fact that, in conducting further investigation, serious evidentiary difficulties would be encountered. The passage of forty years, and the national, political and linguistic differences that must be addressed in endeavouring to collect the necessary evidence are formidable obstacles. In the great majority of the remaining cases, the necessary further investigations must involve at least one Eastern Bloc country.

The gathering of evidence outside Canada is nothing new, of course. Canadian courts have utilised commission evidence obtained in foreign countries. As well, Canadian police have on many occasions carried their investigations into foreign lands with the aid of local authorities. For example, significant and reliable evidence was obtained in several countries, including the Soviet Union, in the proceedings leading to the extradition of Helmut Rauca to West Germany for war crimes.

The individual cases in which Mr. Justice Deschenes has recommended that consideration be given to seeking Eastern European evidence will be carefully reviewed on a case-bycase basis. Any gathering of evidence abroad will be restricted to those cases where, in the opinion of Canadian authorities, there are specific, credible and serious allegations of war crimes requiring further investigation.

I have instructed my department to work in close cooperation with other departments and agencies such as the RCMP in order that the necessary resources can be put in place to ensure that investigations are completed and that the required amendment to the Criminal Code is introduced on an expeditious basis. The government has made a commitment to act and we will honour that commitment.

However, justice demands not only effectiveness but also fairness. In that regard, the Government has agreed with Mr. Justice Deschenes that evidence obtained in the pursuit of alleged war criminals meet the test of Canadian standards and must be gathered, where applicable, in a manner consistent with the six conditions he proposed for the collection of evidence in Eastern Bloc countries. As well, we believe that it is important, as Mr. Justice Deschenes has proposed, to rely upon the existing structures of the RCMP and the Department of Justice to ensure that the traditional roles of investigation and prosecution are maintained.

The enthusiastic response of Canadians to the Government's decision to seek the solution to this problem here in Canada and in accordance with our own standards of law and evidence has demonstrated, in a very real way, the deep and abiding confidence that Canadians have in our legal institutions. Those institutions are a vital part of our heritage and integral components of our blueprint for the future.

Not long ago, I spoke about the rise of vigilantism in Canada and the perceived erosion of public confidence in our justice system. At that time, I mentioned the need to be concerned with the perception that Canadians have of our legal institutions and the importance of ensuring that these institutions were responsive, effective, responsible and accessible. This concern remains, but I must acknowledge that my anxiety has been to a degree relieved by this demonstration of confidence in our justice system.

At the same time, there are other issues and concerns that I now wish to mention to you that will continue to test the resolution and commitment of Canadians to ensure that our institutions and laws are responsive, effective and responsible.

The aboriginal Constitutional process is one of these. As you may know, Section 37.1 of The Constitution Act, 1982, committed Canadians to an ongoing process focussed on a series of First Ministers' Conferences on aboriginal affairs, to be concluded by April 17, 1987.

I have been working together with the leaders of the national aboriginal organisations and my provincial colleagues to develop a Constitutional structure that will ensure that the needs of the aboriginal community are met within Canadian legal and social structures. On March 13, 1987, at the request of the Prime Minister, I convened another ministerial-level meeting to make every effort to refine the proposal for consideration by First Ministers.

The negotiations have proven difficult for a number of reasons. For example, no fewer than seventeen different parties are involved. These include the federal Government, the provincial governments, four national aboriginal organisations, and the Territorial governments.

In addition, any Constitutional amendment must be supported by both the federal government and seven provinces, representing fifty percent of Canada's population. This requirement, called for under the Constitution's amending formula, means that any proposed Constitutional amendment requires a minimum level of support from other participants to be successful.

We will be working very hard with other parties at the First Ministers' Conference later this week to achieve the necessary level of support to proceed with a self-government amendment. The people of Canada support the achievement of this goal and expect us to use our best efforts. Some middle ground has been identified. What we will be looking for is the political will on all sides to move towards a positive result.

The effort to expand and enhance our Constitution is a forward-looking process. Quite simply, it is an attempt to perfect Confederation. It is, therefore, essential that all Canadians become aware of the issues under negotiation and understand their significance. The Constitution is a living document that we share as Canadians and will leave as a legacy to future generations.

If Canadians do not take an active interest in matters such as the prosecution of alleged war criminals, or Constitutional amendment, it can only be that we have failed to involve them or provide them with the information they require to understand their Constitution and the laws that bind our nation together.

It should be obvious from this that I believe it is extremely important for Canadians to know something about our system of justice. Indeed, justice is not done if people do not know about the law and, therefore, do not have access to the justice system.

As Minister of Justice, I am committed to improving Canadians' access to the justice system. In this regard, I am impressed by the contribution of public legal education and information organisations across the country. These groups publish pamphlets, organise courses, develop mock-trial programmes, visit classrooms and produce videotapes, radio programmes and newspaper articles. They undertake these activities in order to provide the public with information about the law and our legal system.

I also applaud the provincial and territorial governments that have improved access to justice in their jurisdictions by supporting public legal education programmes.

I can proudly add that, while I have been Minister of Justice, my department has also published materials on the law that I believe have helped many Canadians understand more about our laws and our legal system.

All of this is important, valuable work. Shortly, I will be announcing how the Government intends to continue to improve access to justice by increasing the public's access to information about the law.

I would like to conclude my remarks by thanking you for the invitation to be with you this evening. You have allowed me the opportunity to share with you the Government's initiatives in some vital areas. With the respect to the Deschenes Commission, the Government has shown its will to act decisively and the Canadian public has endorsed the Government's confidence in the capacity of our own institutions and laws to deal with this difficult problem.

In all three areas I have outlined this evening, the paths we are following and the goals we are pursuing illustrate the Government's responsiveness to social and legal issues and will lead to greater equity and fairness of all Canadians.

The appreciation of the meeting was expressed by Nona Macdonald, President of The Empire Club of Canada.

Nona Macdonald:

Tonight is an important event in the calendars of both The Empire Club of Canada and The Canadian Club of Toronto. It would be unrealistic to deny the controversial nature of the topic that our speaker has addressed. However, the Deschenes Commission of Inquiry on War Criminals has completed its work and what better forum to set forth the findings of the Commission and the Government of Canada's response than at this joint meeting and to remind us of the vitality of our judicial system?

Each of our clubs has been providing public-affairs platforms for decades and tonight marks another milestone in our special mandates. Mr. Minister, this head table brings some Westerners together. TVOntario's Bernard Ostry is Saskatchewan-born, as is lawyer John Sopinka. You know by now that The Honourable Mr. Justice Joseph Potts and I are from your riding of Saskatoon-something we are proud to never let anyone forget!

Nor shall we forget your visit here and your lucid and fair presentation of a complex and serious subject. Thank you Mr. Hnatyshyn.

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The Deschenes Report: The Commission of Inquiry on War Criminals.


A joint dinner with The Canadian Club of Toronto. Details of the Deschenes Commission report and the need to improve and strengthen the Canadian justice system on a continuing basis. The government's recent response to the report of the Commission of Inquiry on War Criminals. The aboriginal Constitutional process. The government's commitment to insure a more effective, efficient and accessible justice system in Canada. Basic principles of our justice system. Major objectives and their accomplishment, of the Deschenes report. A detailed description of the report. Legal alternatives for proceedings against individuals suspected of war crimes. Amendments to the Criminal Code. Recommendations to strengthen Canada's immigration and citizenship processes to ensure the difficulty of entry for war criminals. Changes to the Citizenship Act. The intention of the government to proceed with the recommendations of the Deschenes report. The response of Canadians to this intent. The aboriginal Constitutional process: negotiations, suggestions and recommendations. The need for Canadians to be informed as to their justice system. Suggestions to make that happen.