Citing "breach of judicial independence," federal court throws out war crimes case (07/28/96)

Citing "breach of judicial independence," federal court throws out war crimes case

by Andrij Wynnyckyj
Toronto Press Bureau

TORONTO - The case of Johann Dueck, 74, of St. Catharines, Ontario, who stands accused of participating in the killing of civilians and prisoners of war as the deputy chief of German police in eastern Ukraine in 1941-1943, was thrown out together with three others by a Canadian Federal Court judge on July 4.

According to a report filed by The Toronto Star's Ottawa Bureau Chief David Vienneau, Justice Bud Cullen ruled the cases had to be voided because a senior judge had committed "a serious breach of judicial independence" and had wrongly attempted to influence legal proceedings against the alleged war criminals.

Justice Cullen had taken over the cases on May 15, after the original presiding judge, Associate Federal Chief Justice James Jerome, withdrew on May 5. The senior judge in question was Chief Justice Julius Isaac, who met with prosecutor Ted Thompson and then suggested to Justice Jerome that he speed up proceedings.

According to Justice Cullen, both actions were wrong, but the second was worse. "The influence or pressure that was brought to bear on the associate chief justice is especially egregious," wrote the judge in a decision quoted by the Star in its July 5 edition.

Mr. Dueck is one of five men against whom deportation proceedings were initiated in January, when the government announced it was going ahead with the deportation option rather than the lengthier (and heretofore mostly unsuccessful) approach of full criminal prosecution in Canada.

The government launched deportation proceedings against the five individuals, including Mr. Dueck, and named them. They were formally charged with failing to reveal their alleged war crimes to immigration officials when they arrived in Canada.

Three cases, that of Mr. Dueck; Helmut Oberlander, 71, of Waterloo, Ontario; and Erichs Tobias, 84, of Toronto, were being heard together in Federal Court, with Justice Jerome presiding.

From the outset, federal lawyers publicly expressed their frustration with the court's glacial pace. On March 1, Assistant Deputy Minister of Justice Thompson took the "unprecedented" (according to the Toronto Star) step of complaining personally and in a letter directly to Canada's chief justice, in which the official wrote that a possible result of Justice Jerome's "foot-dragging" might be that "at least 12 alleged Nazi war criminals [would] never [be] brought to justice."

Mr. Thompson asserted that dealing quickly with Mr. Dueck's case in particular was urgent "because one witness had died, another was in the hospital and two others were ill." Mr. Thompson was also interested in knowing if statements made by witnesses in other countries [in Mr. Dueck's case, in Ukraine], would be admissible, or whether the person would have to be in court.

The senior justice bureaucrat also wrote that Justice Jerome had proven "unable or unwilling" to speed proceedings along. Justice Isaac subsequently met with Justice Jerome, and then "advised Thompson that the court would move to speed up proceedings."

The federal lawyer's letter to Justice Isaac and the latter's action came to light in late April and early May, when several Canadian dailies carried stories about it.

In the May 6 edition of the Toronto Star, Mr. Vienneau revealed the contents of Mr. Thompson's letter, the fact that he met Justice Isaac, and the fact that Justices Isaac and Jerome subsequently met.

This prompted lawyer Don Bayne, who represents Mr. Dueck, to file for a stay of proceedings because of Mr. Thompson's "scandalous criticism" of Justice Jerome and Justice Isaac's "highly improper, private, behind-the-scenes attempt to influence, pressure and interfere" with the case. Upon taking over as presiding judge on May 15, Justice Cullen agreed to hear the motion.

On May 28, Justice Minister Allan Rock rose in the House of Commons to declare that the meeting between Justice Isaac and Mr. Thompson was "inappropriate and it ought not to have been held."

In its May 30 issue, the Toronto-based daily The Globe and Mail reported that Mr. Rock had appointed former Chief Justice Charles Dubin to head an inquiry into the controversial meeting. The Globe's Kirk Makin quoted Mr. Rock saying that Justice Dubin would recommend any changes deemed necessary "to ensure that in our dealings with the court, the department does nothing to harm the independence of the judiciary."

Mr. Rock also revealed that it was Chief Justice Isaac who had called the meeting with Mr. Thompson.

In his July 4 decision, quoted by the Star, Justice Cullen wrote "This is about the liberty of an individual judge to hear and decide the cases, free of interference from the chief justice of the Federal Court or the assistant deputy attorney general."

Effectively leveling harsh criticism against a superior, Justice Cullen wrote that "it cannot be reasonably asserted that" Justice Isaac was "unaware that [his meeting with Mr. Thompson and subsequent discussions with Justice Jerome] were patently wrong."

According to the Globe's May 30 item, Mr. Thompson has taken an extended leave of absence and has asked the Law Society of Upper Canada to decide whether he committed professional misconduct.

David Matas, a lawyer with B'nai B'rith of Canada, in a recorded commentary aired July 5 on CBC-Radio's "Metro Morning" show, questioned Justice Cullen's reasoning, given the seriousness of the crimes alleged.

"The administration of justice is brought into far more disrepute by providing immunity to mass murderers," Mr. Matas said, "than it is by conversations between a lawyer and a judge."

As The Weekly went to press, the government's lawyers were considering whether or not to appeal Justice Cullen's decision to throw out Mr. Dueck's case and the two others, or whether to simply and the proceedings.

This is the latest in a series of setbacks in the Canadian government's attempt to prosecute or rid the country of World War II vintage war criminals.

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