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R. v. Finta, [1993] 1 S.C.R. 1138

 

Her Majesty The Queen                                                                   Appellant

 

v.

 

Imre Finta                    Respondent

 

and

 

Canadian Holocaust Remembrance Association                             Intervener

 

Indexed as:  R. v. Finta

 

File Nos.:  23023, 23097.

 

1993:  March 24.

 

Present:  McLachlin J.

 

motions for leave to intervene

 

                   Practice ‑‑ Supreme Court of Canada ‑‑ Applications to intervene ‑‑ Public interest groups establishing interest in outcome of appeal and offering useful and novel submissions ‑‑ Groups granted leave to intervene ‑‑ Private individual having no stake in result of appeal ‑‑ Individual denied leave to intervene ‑‑ Rules of the Supreme Court of Canada, SOR/83‑74, r. 18.

 

Cases Cited

 

                   Referred to:  Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 2 S.C.R. 335.

 

Statutes and Regulations Cited

 

Rules of the Supreme Court of Canada, SOR/83‑74, r. 18 [rep. & sub. SOR/87‑292, s. 1; am. SOR/91‑347, s. 8; am. SOR/92‑674, s. 1].

 

                   MOTIONS for leave to intervene in an appeal from a judgment of the Ontario Court of Appeal (1992), 73 C.C.C. (3d) 65, 14 C.R. (4th) 1, 92 D.L.R. (4th) 1,  9 C.R.R. (2d) 91.  Motions on behalf of the League for Human Rights of B'Nai Brith Canada, the Canadian Jewish Congress and InterAmicus granted; motion on behalf of Kenneth M. Narvey denied.

 

                   Marvin Kurz, for the applicant the League for Human Rights of B'Nai Brith Canada.

 

                   Edward M. Morgan, for the applicant the Canadian Jewish Congress.

 

                   Joseph R. Nuss, Q.C., Irwin Cotler and Lieba Shell, for the applicant InterAmicus.

 

                   Kenneth M. Narvey, on his own behalf.

 

                   Christopher A. Amerasinghe, Q.C., and Thomas C. Lemon, for the appellant.

 

                   Martin W. Mason, for the respondent.

 

//McLachlin J.//

 

                   The following reasons for the order were delivered by

 

                   McLachlin J. ‑‑ These applications to intervene arise in an appeal from the Ontario Court of Appeal.  Imre Finta served during the Second World War as commander of the investigative subdivision of the Gendarmerie at Szeged, Hungary.  He became a Canadian citizen in 1956.  In 1988, he was charged under alternate counts of unlawful confinement, robbery, kidnapping and manslaughter (one count of each pair fell under the Criminal Code, R.S.C. 1927, c. 36, while the other count was characterized as a war crime or crime against humanity under the predecessor of s. 7(3.71) of the present Criminal Code ).  These allegations arose from the deportation of Jews from Hungary in 1944. In a pre‑trial motion, Finta challenged the constitutionality of the war crimes provisions in the Criminal Code .  The trial judge found that these provisions did not violate the Canadian Charter of Rights and Freedoms .  The jury subsequently acquitted Finta on all counts.  The Crown's appeal of this acquittal was dismissed by a majority of the Ontario Court of Appeal with two dissenting judges in favour of ordering a new trial.  The Court of Appeal was unanimous, however, in upholding the constitutional validity of the war crimes provisions in the Code.

 

                   Leave to appeal was granted to the Crown by this Court on the four grounds of law upon which Dubin C.J.O. and Tarnopolsky J.A. dissented, and on three additional grounds:

 

(1)That the Court of Appeal erred in law in holding that s. 7(3.71)  of the Criminal Code  is not merely jurisdictional in nature, but rather, defines the essential elements of the offences charged, such that it was necessary for the jury to decide beyond a reasonable doubt not only whether the Respondent was guilty of the 1927 Criminal Code  offences charged, but also, whether his acts constituted war crimes or crimes against humanity as defined in s. 7(3.71)  and 7(3.76) .

 

(2)That the Court of Appeal erred in law in holding that the trial judge correctly instructed the jury that it is not sufficient for the Crown to prove beyond a reasonable doubt that the Respondent intended to commit the offences alleged against him, namely unlawful confinement, robbery, kidnapping and manslaughter, but that the Crown must also prove that the Respondent knew that those acts constituted war crimes or crime against humanity as defined in s. 7(3.76), thereby requiring proof of mens rea in relation to the jurisdictional preconditions set out in s. 7(3.71)  of the Criminal Code .

 

(3)Having found that defence counsel's address was improper and inflammatory on the several grounds enumerated, the Court of Appeal erred in law in holding that the trial judge's instructions to the jury adequately corrected defence counsel's jury address so as to overcome the prejudice to the Crown and did not deprive the Crown of a fair trial.

 

(4)Having found that the trial judge erred in calling the Dallos statements and the videotaped evidence of the witnesses Kemeny and Ballo as his own evidence, thereby depriving the Crown of its statutory right to address the jury last, the Court of Appeal erred in law in holding that this error resulted in no substantial wrong or miscarriage of justice.

 

(5)That the Court of Appeal erred in law in holding that the police statement and deposition of Imre Dallos, which were taken from the record of the 1947 investigation and the 1948 in absentia trial of the Respondent held in Hungary, were admissible;

 

(6)That the Court of Appeal erred in law in holding that the trial judge's instructions to the jury pertaining to the evidence relating to the eyewitness identification of the respondent were appropriate in the circumstances of the case and in not finding that he misdirected the jury on the issue of identification; and

 

(7)That the Court of Appeal erred in law in failing to find that the trial judge erred in putting to the jury the peace officer defence embodied in s. 25  of the Criminal Code , the military orders defence and the issue of mistake of fact, and that the trial judge misdirected the jury in the manner in which he defined those defences.

 

                   The cross‑appellant Finta was granted leave by this Court on the constitutional grounds dismissed below.  Chief Justice Lamer ordered that the constitutional questions be stated as follows:

 

(1)Does s. 7(3.74) of the Criminal Code  violate ss. 7 , 11 (a), 11 (b), 11 (d), 11 (g), 12  or 15  of the Canadian Charter of Rights and Freedoms ?

 

(2)If the answer to this question is in the affirmative, is s. 7(3.74)  of the Criminal Code  a reasonable limit in a free and democratic society and justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

(3)Does s. 7(3.71) read with s. 7(3.76)  of the Criminal Code  violate ss. 7 , 11 (a), 11 (b), 11 (d), 11 (g), 12  or 15  of the Canadian Charter of Rights and Freedoms ?

 

(4)If the answer to this question is in the affirmative, is s. 7(3.71) read with s. 7(3.76)  of the Criminal Code  a reasonable limit in a free and democratic society and justified under s. 1  of the Canadian Charter of Rights and Freedoms ?

 

                   Four applications are before the Court to intervene in this case pursuant to Rule 18 of the Rules of the Supreme Court of Canada, SOR/83‑74.  Three applicants are public interest groups:  the Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada, and InterAmicus.  One applicant, Mr. Kenneth M. Narvey, is a private individual acting on his own behalf.  All of the applicants seek to intervene in favour of the appellant Crown's position.  The appellant does not contest the applications of the three interest groups, but does contest the application of Mr. Narvey.

 

                   As Sopinka J. held in one of the few reported cases on a motion for intervention, Rule 18 of the Rules of the Supreme Court of Canada permits "a wide discretion in deciding whether or not to allow a person to intervene as well as the discretion to determine the terms and conditions of the intervention":  Reference Re Workers' Compensation Act, 1983 (Nfld.), [1989] 2 S.C.R. 335, at p. 339.  The criteria under Rule 18 require that the applicant establish:  (1) an interest and (2) submissions which will be useful and different from those of the other parties.

 

(1)               Interest

 

                   The three public interest groups have all established an interest in the outcome of this appeal.  The Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada and InterAmicus have an interest in ensuring that the interpretation of the Criminal Code  provisions on appeal is consistent with the preservation of issues within its mandate.  Through either the people they represent or the mandate which they seek to uphold, these applicants have a direct stake in Canada's fulfilling its international legal obligations under customary and conventional international law.  While the Court is often reluctant to grant intervener status to public interest groups in criminal appeals, exceptions can be made under its broad discretion where important public law issues are considered, as in this appeal.  All three parties demonstrated in their submissions to the Court that they satisfy the interest requirement under Rule 18 .

 

                   The same cannot be said of Mr. Narvey.  There is no question that Mr. Narvey is a qualified expert in the subject matter before this Court.  But his interest in the outcome of the litigation cannot be established merely by his status as researcher and advocate on public law issues.  He must establish a direct stake in the outcome of the appeal.  Mr. Narvey does not argue that his status as a Jewish Canadian or occasional association with Jewish organizations forms any basis for his application.  He is not currently engaged in litigation which is implicated by the outcome in this case, nor does he purport to represent an interest which is directly affected by the appeal.  In short, Mr. Narvey's interest in this appeal is not in the manner of having a stake in the result, but solely of having a serious preoccupation with the subject matter.  This type of interest is not the kind referred to in Rule 18(3)(a) of the Rules of the Supreme Court of Canada.  Thus, Mr. Narvey does not meet the first test under Rule 18.  I would deny leave to the application of Mr. Narvey.

 

(2)               Useful and Different Submissions

 

                   There are a number of issues before the Court.  While not seeking to limit the questions before the Court, I will summarize the applicants' submissions under three general headings:  (1) jurisdiction over crimes against humanity and war crimes; (2) the requisite mens rea of the offences on appeal; and (3) the allegedly inflammatory address by defence counsel.  On the first two matters, the Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada and InterAmicus all offer useful and novel submissions.  In particular, these applicants each have distinctive contributions to make in the area of international law theory, comparative law, the Nuremberg principles, and the criminal justice obligations and position of Canada vis‑à‑vis the victims of war crimes. The arguments discussed in their materials appear to supplement the appellant's submissions in a manner suitable to satisfy the second criterion under Rule 18.

 

                   On the other hand, the arguments regarding the inflammatory address to the jury are already covered by the appellant Crown.  Indeed, it seems inappropriate for any of the applicants to be permitted to make submissions on the issue of defence counsel's address to the jury.  The public interest groups before this Court have an interest in, and are all experts on, the issues of war crimes and human rights in general.  But they are not experts on addresses to the jury, and I have not been persuaded that their arguments on this issue will provide a supplemental or useful perspective that is not already argued by the appellant.

 

                   In the circumstances of this motion, therefore, I grant leave to the applications of the Canadian Jewish Congress, League for Human Rights of B'Nai Brith Canada, and InterAmicus.  These applicants may file factums on the issues which I have indicated.  Like the intervener Canadian Holocaust Remembrance Association, they will not be granted the right to oral argument.  However, they may appear through counsel at the appeal for the purposes of answering questions the Court may have with respect to their factums.

 

                   I would deny leave for the application of Mr. Kenneth M. Narvey.

 

                   Judgment accordingly.

 

                   Solicitors for the applicant the League for Human Rights of B'Nai Brith Canada:  Dale, Streiman & Kurz, Brampton.

 

                   Solicitors for the applicant the Canadian Jewish Congress:  Davies, Ward & Beck, Toronto.

 

                   Solicitors for the applicant InterAmicus:  Ahern, Lalonde, Nuss, Drymer, Montréal.

 

                   Solicitor for the appellant:  The Attorney General of Canada, Ottawa.

 

                   Solicitor for the respondent:  Douglas H. Christie, Victoria.

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