Canadian Federal Court issues new ruling in war crimes cases (01/26/97)

Canadian Federal Court issues new ruling in war crimes cases

by Andrij Kudla Wynnyckyj
Toronto Press Bureau

TORONTO - Canada's Federal Court of Appeal on January 14 reversed an earlier decision to stay deportation proceedings against three alleged war criminals, including Johann Dueck, 74, a resident of St. Catharines, Ontario, accused of killing prisoners of war (including many Ukrainians) while serving as a Nazi deputy police chief in eastern Ukraine.

This was the latest verdict in an odd game of ping-pong the Canadian justice system has been playing in the cases at the federal court level since March 1996, and will now doubtlessly proceed to the highest court in the land - the Supreme Court.

It also represents a setback for the defense, which had enjoyed a series of victories.

The January 14 judgment reverses a July 4, 1996, decision by Federal Justice Bud Cullen that the cases had been tainted by judicial interference on the part of Chief Justice Julius Isaac and had to be set aside.

Canada's Justice Minister Allan Rock had filed an appeal a week later and ordered that retired Ontario Chief Justice Charles Dubin conduct an inquiry to determine the extent of malfeasance by a prosecutor in the case, Ted Thompson, who was also Mr. Rock's deputy minister.

The allegedly offending pair met in March without notifying counsel for the defense after Mr. Thompson had become frustrated with the slow pace of proceedings, specifically that presiding Justice James Jerome was grant-ing too many motions to the defense.

Justice Isaac called his colleague to a meeting to urge him to speed up the pace. After this and some of the prosecutor's disparaging comments about Justice Jerome came to light in the press, Justice Jerome removed himself from the case.

Justice Cullen was assigned to the case in May, and then made the controversial ruling to stay proceedings because of the "serious breach of judicial independence" allegedly committed by Justice Isaac .

In late August 1996, Justice Dubin weighed in with his report, released by the Ministry of Justice on September 5, 1996, which expressed the opinion that "Mr. Thompson's meeting was properly motivated, did not deal with the merits of the cases, and was not intended to interfere with the independence of the judiciary," but that he was "remiss" in not notifying defense counsel and had "departed from the standards expected of departmental employees." Justice Dubin recommended that Mr. Thompson, who had resigned as deputy minister in the interim, be reassigned within the inistry .

However, the sparks really began to fly on December 9, when the appeal hearings began in a federal courtroom in Toronto.

The defense counsel created a furor by contending that Federal Court justices could not impartially render decisions about the conduct of their boss, Chief Justice Julius Isaac. This seemed to capture the interest of most of the country's legal scholars, including the respected Prof. Peter Russell, as well as a number of editorial writers .

Mr. Dueck's lawyer, Donald Bayne, also accused Justice Minister Rock of impugning the judicial integrity of Justice Cullen in his motion to appeal his decision, and cited a number of editorials which contended that "a cloud hung over the Federal Court."

As of January 14, these moves appear to have backfired. The three-judge panel of the Federal Appeals Court, which included Justices Louis Marceau, Louis Pratte and Arthur Stone dismissed Judge Cullen's ruling and were scathingly critical of their colleague and of the defense.

According to a Globe and Mail report of the following day, Justice Marceau was seemingly heedless of Justice Cullen's reputation and contended that "no reasonable person" could have concluded that Chief Justice Isaac compromised the three deportation hearings in hearing Mr. Thompson's private complaint and in urging Justice Jerome to proceed more quickly.

Justice Pratte said it was "patently wrong" for Justice Cullen to have suggested that Justice Isaac and Mr. Thompson had met in bad faith or that this had resulted in some advantage for the prosecution.

Defense Counsel Bayne said this decision would likely be appealed to the Supreme Court of Canada. He had 60 days to file his appeal from the date of the verdict.

Effectively, the Federal Appeals Court panel cleared the way for a resumption of deportation proceedings against the three accused, dismissing Judge Cullen's stay. In the Globe and Mail item of January 15, war crimes prosecutor Christopher Amerasinghe was quoted as saying that while it was technically possible for deportation hearings to resume before the Supreme Court deals with the appeal, "realistically, I don't know if the Federal Court would do it."

As The Weekly went to press, neither Federal Court nor Supreme Court officials had any record of motions to proceed.

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