R.+c.+Finta


 * R. c. Finta, 1994, Supreme Court of Canada, on appeal from Ontario**

- Finta was a captain of the gendarmerie in Hungary during WWII. - The German SS ordered Finta to "de-Jew" his city, using isolation, total expropriation, assembling in ghettos, concentration, embarkation and deportation to concentration camps such as Auschwitz and Birkenau. This was part of the German "final solution" - that is, the systematic massacre of all European Jews. - In 1948, Finta was declared guilty //in absentia// of crimes against the people in Hungary. - In 1951, Finta immigrated to Canada and became a citizen.
 * Facts:**


 * Relevant legislation:**

Notwithstanding anything in this Act or any other Act, every person who, either before or after the coming into force of this subsection, //commits an act or omission outside Canada that constitutes a war crime or a crime against humanity// and that, //if committed in Canada, would constitute an offence against the laws of Canada in force at the time// of the act or omission shall be deemed to commit that act or omission in Canada at that time if [...]
 * Criminal Code 7(3.71):**

Charter//,// s.7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Charter, s.11(g): Any person charged with an offence has the right [...] //( g )// not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

Question (1): What is the significance of 7.(3.71)? Question (2): Does 7.(3.71) violate ss. 7 or 11(g) of the Charter?
 * Issue:**


 * Reasoning (DISSENT, La Forest J.):** [NB - Megret mislabelled the case as the majority's reasons.]

A [|Deschenes Commission] was created to deal with war criminals living in Canada. The Commission recommended that the legislator implement a law which would allow war criminals to be charged in Canada, as long as the crimes in question were recognized by international law at the time and place of their occurrance. During WWII, Germans and Hungarians alike knew they were committing war crimes. The //nullum crimen sine lege// defense does not hold.
 * Question (1):**

The Canadian legislator had two options for a law on war crimes: (1) To add the war crimes and crimes against humanity, as internationally defined, to Canadian law as __**new infractions**__. (This is what Australia did.) This would be unacceptable, according to the Deschenes Commission, because it would be retroactively creating crimes.

(2) To allow charges to be laid, __**as if** **the war crime or crime against humanity had been committed in Canada,**__ and not in Hungary or wherever else. (This is what the UK and Canada did.) The Commission did not want to add new infractions to Canadian law, but rather to eliminate the obstacle of extraterritoriality and give Canadian tribunals the capacity to hear war crime cases.

Advantages of (2):
 * The judge and jury are functioning in a familiar legal system: the Canadian one, theirs.
 * The judge can escape the complexities of international law.
 * The only added feature is international law defenses.

- Most nations recognize that an action cannot be criminalized retroactively if, when it was committed, the act was legal. This is the rule against laws adopted after the fact. - By deciding that war crimes would be judged as having been committed in Canada, with the Canadian Criminal Code of the time, the legislator thought it was escaping this problem. This is untrue: the only way to interpret these dispositions is to conclude that two new infractions (crimes against humanity and war crimes) were created.
 * Question (2):** Charter violations?

- There are two positions for the debate as to whether crimes against humanity were criminal during WWII: (1) Crimes against humanity have existed since the //Hague Conventions, 1907//, and follow from the right to war. (2) The Nuremburg and Tokyo statutes in 1945 were not simply declaratory of previously existing international law, but were rather creating law, creating crimes against humanity. Crimes against humanity were created with in mind the idea of punishing the horrible behaviour of the Nazi and Japanese regimes.

A law which retroactively assigns a punishment to acts which, at the time committed, were illegal without being criminal, seems to be an exception to the rule against laws adopted after the fact. Because the acts during WWII were terrible morally, and the actors were aware of their immorality, the retroactivity of the punishment doesn't seem entirely contrary to justice. If two principles of justice are in conflict, the more important wins. Punishing those who were morally responsible for WWII's crimes is certainly more important than respecting the rule against retroactive laws.

--- Helpful translations: séquestration = unlawful confinement homicide involontaire coupable = manslaughter