A-403-91
Louis Arthur H. Rudolph (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
and
The League for Human Rights of B'Nai Brith
Canada and Kenneth Narvey (Interveners)
INDEXED AS.' RUDOLPH V. CANADA (!MINISTER OF
EMPLOYMENT AND IMMIGRATION) (CA.)
Court of Appeal, Hugessen, Stone and MacGuigan
JJ.A.—Toronto, April 8 and 9; Ottawa, May 1, 1992.
Immigration — Deportation — Application to set aside
removal order against German who admitted using civilian
prisoners of war in munitions production during World War II
— Immigration Act, s. 19(1)(j) prohibiting admission to
Canada of persons believed to have committed war crimes or
crimes against humanity which, if committed in Canada, would
have constituted offence under Canadian law at tune commit
ted — Conduct constituted war crime, crime against humanity
under customary and conventional international law, incorpo
rated by reference into Canadian law by Criminal Code, s.
7(3.76) — Constituted offences of aiding and abetting kidnap
ping and forcible confinement under Criminal Code in force in
Canada at time — Only actus reus notionally transferred to
Canada under "Canadian" requirement of s. 19(1)0) — Obe
dience to de facto foreign state authority no defence — Appli
cant not entitled to benefit of doubt under s. 19(1)(j).
International law — Criminal Code, s. 7(3.76) incorporat
ing by reference into Canadian law customary and conven
tional international law — No express prohibition against
employment of prisoners of war in manufacture of munitions in
conventional international law prior to 1945, but inferred from
Convention on the Laws and Customs of War on Land — Cus
tomary international law declared in International Military
Tribunal's Charter, affirmed by U.N. — Defining war crimes,
crimes against humanity — Reasonable grounds to believe
applicant's use of prisoners during World War II in munitions
production war crimes, crimes against humanity.
This was an application to set aside a removal order against
the applicant, a German national and resident who admitted
employing foreign prisoners in a concentration camp in the
production of munitions from 1943-1945. Such munitions
were intended for use against the civilian populations of the
allied countries. Immigration Act, paragraph 19(1)(f) prohibits
the admission to Canada of persons believed, on reasonable
grounds, to have committed a war crime or crime against
humanity which, if committed in Canada, would have consti
tuted an offence against the laws of Canada in force at the
time. The definitions of "crime against humanity" and "war
crime" in Criminal Code, subsection 7(3.76) state that it does
not matter whether or not the prohibited conduct contravened
the law in force at the time and in the place it was committed,
provided that at that time and in that place it contravened cus
tomary or conventional international law. The issues were (1)
whether the applicant's conduct constituted a war crime or
crime against humanity; and (2) whether, if it had been com
mitted in Canada, it would have constituted an offence here.
Held, the application should be dismissed.
(1) Subsection 7(3.76) incorporates by reference into Cana-
dian law both customary and conventional international law.
Although there was no express prohibition in conventional
international law prior to 1945 against the employment of pris
oners in the manufacture of munitions, one could be inferred
from the Convention on the Laws and Customs of War on
Land forbidding employing prisoners of war in connection
with the operations of the war, compelling foreign nationals to
participate in the operations of war directed against their own
country or involving them in military operations against their
own country. The manufacture of armaments whose only pur
pose was to terrorize civilian populations fell within the con
cepts of "operations of war" and "taking part in military opera
tions". The applicant's actions fell by necessary implication
within these prohibitions.
The Charter of the International Military Tribunal (estab-
lished to try war criminals) was declaratory of existing cus
tomary international law regarding war crimes and crimes
against humanity. Affirmation by the U.N. in 1946 added
credence to the Charter. The applicant's activities gave reason
able grounds to believe that he was an active participant and
accomplice in both war crimes and crimes against humanity so
defined.
(2) The second or "Canadian" branch of the "double crimi-
nality" requirement of paragraph 19(1)(/) ("an act or omission
... that, if it had been committed in Canada") mandates the
notional transfer to Canada of the actus reus only and not the
entire surrounding circumstances so as to permit a plea of obe
dience to de facto foreign state authority. 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, were notionally transferred
to Canada.
The Adjudicator's findings of fact constituted reasonable
grounds to believe that the applicant aided and abetted the
crimes of kidnapping under Criminal Code, subparagraph
297(a)(iii) in force in Canada in 1943-1945, and forcible con
finement under paragraph 297(b).
Finally, if the Adjudicator erred, it was in imposing too high
a standard on the government and in according to the applicant
the benefit of the doubt, to which he was not entitled under
paragraph 19(1)(j).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis, August 8,
1945, 82 U.N.T.S. 279, Charter of the International
Military Tribunal, Art. 6.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 7, 11, 15.
Convention on the Laws and Customs of War on Land,
the Hague, October 18, 1907 (Hague IV: reproduced in
Friedman, Leon (Ed.). The Law of War: A Documen
tary History, Vol. I, New York: Random House, 1972),
Arts. VI, XXIII, LII.
Criminal Code, R.S.C. 1927, c. 36, s. 297.
Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(j) (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 3).
Order in Council consolidating various Orders re employ
ment of prisoners of war, P.C. 6495, August 18, 1944.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Ramirez v. Canada (Minister of Employment and hnmi-
gration), [1992] 2 F.C. 306 (C.A.).
AUTHORS CITED
Djonovich, D. J. United Nations Resolutions, Vol. I, New
York: Oceana Publications, Inc., 1973, Resolution
95(1).
Report of the Commission of Inquiry on War Criminals,
Part I. Public, Ottawa: Supply and Services, 1986
(Commissioner: J. Deschênes).
The International Military Tribunal: Trial of the Major
War Criminals, Vol. 22, Nuremberg, Germany, 1948.
APPLICATION to set aside removal order. Appli
cation dismissed.
COUNSEL:
Barbara Kulaszka for applicant.
Charlotte A. Bell and Donald Macintosh for
respondent.
Marvin Kurz for intervener The League for
Human Rights of B'Nai Brith Canada.
APPEARANCE:
Kenneth M. Narvey on his own behalf.
SOLICITORS:
Barbara Kulaszka, Brighton, Ontario for appli
cant.
Deputy Attorney General of Canada for respon
dent.
Dale, Streiman & Kurz, Brampton, Ontario for
intervener The League for Human Rights of
B'Nai Brith Canada.
INTERVENER ON HIS OWN BEHALF:
Kenneth M. Narvey, Toronto.
The following are the reasons for judgment of the
Court rendered in English by
HUGESSEN J.A.: This section 28 [Federal Court Act,
R.S.C., 1985, c. F-7] application attacks a removal
order made against the applicant, a national and resi
dent of Germany, on the grounds that he is a person
described in paragraph 19(1)(j) of the Immigration
Act: t
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 consti
tuted 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 consti
tuted an offence against the laws of Canada in force at the
time of the act or omission.
The text of the definitions of "war crime" and
"crime against humanity" found in subsection 7(3.76)
of the Criminal Code [R.S.C., 1985, c. C-46 (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 1)] is as fol
lows:
7. (3.76) ...
"crime against humanity" means murder, extermination,
enslavement, deportation, persecution or any other
inhumane act or omission that is committed against
R.S.C., 1985, c. I-2 [as am. by R.S.C., 1985 (3rd Supp.), c.
30, s. 31.
any civilian population or any identifiable group of
persons, whether or not it constitutes a contraven
tion 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 con
travention of the customary international law or
conventional international law applicable in interna
tional armed conflicts.
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 - 1945. The conditions
under which the prisoners worked were indescribably
brutal.
We did not find it necessary to call on the respon
dent to reply to many of the arguments sought to be
advanced by applicant's counsel.
In particular we could find no merit in any of the
applicant's Charter [Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]] or Charter-
related, arguments. The exclusion of the applicant
from Canada does not imperil his life, liberty or
security of the person (section 7). Notwithstanding
the incorporation by reference into the Immigration
Act of certain Criminal Code definitions, the appli
cant is not before this Court as a "person charged
with an offence" (section 11). Nothing in the exclu
sion from Canada for his past conduct constitutes dis
crimination against the applicant on any ground listed
in section 15 or on any analogous ground.
Other arguments proposed by the applicant were
based on a clear misreading of paragraph 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 crimi-
nality" requirement of paragraph 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 sur
rounding circumstances so as to permit a plea of obe
dience 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. 2
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 1943-1945 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.
Subsection 7(3.76) incorporates by reference into
Canadian law both customary and conventional inter
national law. Indeed, paragraph 11(g) of the Charter
incorporates them into the very fabric of our Consti
tution. As was said by Deschênes J. in his monumen
tal Report of the Commission of Inquiry on War
Criminals [at page 132]:
In Canada, a person charged with an offence has henceforth
no right to an acquittal if the act, when committed, was crimi
nal 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 acknowl
edged 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.
There was no clearly applicable express prohibi
tion in conventional international law prior to 1945
against the employment of prisoners in the manufac-
2 Unless, of course, the German government had been at that
time exercising de facto authority in Canada.
ture of munitions. Such a prohibition could, however,
without difficulty be inferred from several articles of
the Convention on the Laws and Customs of War on
Land concluded at the Hague October 18, 1907
(Hague IV). We refer in particular to:
ARTICLE 6
The State may utilize the labour of prisoners of war accord
ing to their rank and aptitude, officers excepted. The tasks shall
not be excessive and shall have no connection with the opera
tions of the war. 3
ARTICLE 23
A belligerent is likewise forbidden to compel the nationals
of the hostile party to take 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. 4
ARTICLE 52
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 oper
ations against their own country . 5 [Emphasis added.]
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 manufac
ture of armaments whose clear and only purpose was
to terrorize civilian populations falls within the con
cepts of "operations of war" and "taking part in mili
tary operations".
3 Reproduced in The Law of War: A Documentary History,
Vol. I (Leon Friedman, Ed.), at p. 314.
4 Ibid., p. 318.
5 Ibid., p. 323.
We come next to customary international law. That
such a body of law exists, and existed in 1943-1945
with regard to war crimes and crimes against human
ity, 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 peo
ples, from the laws of humanity, and the dictates of the public
conscience . 6 [Emphasis added.]
Following the end of the war in Europe in 1945,
the Allied Great Powers concluded the London
Agreement for the Prosecution and Punishment of the
Major War Criminals of the European Axis. That
Agreement established the Charter of the Interna
tional Military Tribunal (IMT), Article 6 of which is
declaratory of existing customary international law:
Article 6
The Tribunal established by the Agreement referred to in
Article 1 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 mem
bers of organisations, 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 assur
ances, 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 cit-
6 Ibid., p. 309.
ies, towns or villages, or devastation not justified by mil
itary necessity;
(c) Crimes against humanity: namely, murder, extermina
tion, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or dur
ing the war, or persecutions on political, racial or relig
ious 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, organisers, instigators and accomplices participat
ing in the formulation or execution of a common plan or con
spiracy to commit any of the foregoing crimes are responsible
for all acts performed by any persons in execution of such
plan.?
The declaratory nature of the Charter of the IMT
was formally declared by the IMT in its judgment:
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 rec
ognized 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 laws
[Emphasis added.]
More important still, since both the London Agree
ment and the judgment of the IMT 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 IMT and its judgment were specifi
cally affirmed and recognized by Resolution 95(1) of
the General Assembly of the United Nations adopted
11 December 1946. That Resolution reads:
95 (I). Affirmation of the Principles of International Law
recognized by the Charter of the Nurnberg Tribu
nal
The General Assembly,
Recognizes the obligation laid upon it by Article 13, para
graph I, sub-paragraph a, of the Charter, to initiate studies and
make recommendations for the purpose of encouraging the
progressive development of international law and its codifica
tion;
7 Ibid., p. 886.
K The International Military Tribunal: Trial of the Major
War Criminals, Vol. 22 (Nuremberg, Germany, 1948), at p.
46I.
Takes note of the Agreement for the establishment of an
International Military Tribunal for the prosecution and punish
ment 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, pro
claimed at Tokyo on 19 January 1946;
Therefore,
Affirms the principles of international law recognized by the
Charter of the Nurnberg Tribunal and the judgment of the Tri
bunal;
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 codifica
tion of offences against the peace and security of mankind, or
of an International Criminal Code, of the principles recognized
in the Charter of the Nurnberg Tribunal and in the judgment of
the Tribunal . 9 [Emphasis added.]
In our view it would simply not he possible to find
stronger evidence of the content of customary inter
national law at the relevant period.
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"). 10
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 fol
lowing:
9 Reprinted in Djonovich, D. J. United Nations Resolutions,
Vol. I.
10 In her reply, applicant's counsel urged that the semicolon
between "war" and "or" in Article 6(c) of the IMT Charter
(supra) was later changed to a comma and that this signifi
cantly changed the reach of the definition of crimes against
humanity. Even if this were so it would make no difference to
the applicant's position since his activities are also within the
definition of war crimes.
... in carrying out the normal functions of his job as opera
tions director of the V-2 plant he did aid and abet his superiors
who ordered the use of forced labour in connection with mili
tary 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 suc
cessfully 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, pages 872-873.)
The Criminal Code in force in Canada in the years
1943-1945 was chapter 36 of the Revised Statutes of
1927. Section 297 of that Code read:
297. Every one is guilty of an indictable offence and liable
to twenty-five year's [sic] imprisonment who, without lawful
authority,
(a) 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.
In our view, the adjudicator's above-quoted find
ings of fact constituted reasonable grounds to believe
that the applicant aided and abetted the crime of kid
napping under subparagraph 297(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 facili
ties at Mittlewerk. In the first case this was proba
bly 11 and in the second beyond any doubt for the pur
pose of causing them to be held to service against
their will.
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. 12
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 paragraph 297(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.
From what precedes it follows that in our view
both branches of the "double criminality" require
ment of paragraph 19(1)(j) have been met and the
removal order was properly issued against the appli
cant.
We would not want to leave this case without men
tioning 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 paragraph
19(1)(j) does not entitle him. As matters turn out,
however, the error is without consequence.
The section 28 application will be dismissed.
Probability is clearly enough to meet the standard impo
sed by paragraph 19(1)(j). See Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C. 306 (C.A.).
12 See in particular order in council consolidating various
orders re: employment of prisoners of war, P.C. 6495, August
18, 1944.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.