Deschênes Commission

The Deschênes Commission (officially known as the Commission of Inquiry on War Criminals in Canada) was an independent commission of inquiry established by Prime Minister Brian Mulroney. Its purpose was to investigate accusations that alleged war criminals from the Second World War had found refuge and were living in Canada. The commission took a broad approach to its mandate, investigating war crimes as well as crimes against humanity. While war crimes had already been established as a specific kind of crime after the Second World War, crimes against humanity were not as clearly described, and therefore did not have a clear and defined punishment structure. The outcome of this report was to formalize crimes against humanity and create that framework. Specifically, the Criminal Code was amended so that war crimes would be offences under Canadian law regardless of Canada's involvement in said war. A two-part final report was completed and delivered at the end of 1986. The first part concluded that alleged Nazi war criminals were residing in Canada, but also that Canada lacked the legal means to prosecute those individuals. The second part of the report—that concerned with allegations against specific individuals—remains confidential.

The Deschênes Commission (officially known as the Commission of Inquiry on War Criminals in Canada) was an independent commission of inquiry established by Prime Minister Brian Mulroney. Its purpose was to investigate accusations that alleged war criminals from the Second World War had found refuge and were living in Canada. The commission took a broad approach to its mandate, investigating war crimes as well as crimes against humanity. While war crimes had already been established as a specific kind of crime after the Second World War, crimes against humanity were not as clearly described, and therefore did not have a clear and defined punishment structure. The outcome of this report was to formalize crimes against humanity and create that framework. Specifically, the Criminal Code was amended so that war crimes would be offences under Canadian law regardless of Canada's involvement in said war. A two-part final report was completed and delivered at the end of 1986. The first part concluded that alleged Nazi war criminals were residing in Canada, but also that Canada lacked the legal means to prosecute those individuals. The second part of the report—that concerned with allegations against specific individuals—remains confidential.

Background

The immediate cause of the Deschênes Commission was a claim made by MP Robert Kaplan in the House of Commons on 23 January 1985 that Joseph Mengele, an infamous Nazi war criminal, may have been living in Canada. This claim was made at a time in which interest in Mengele’s whereabouts had drawn international attention. He was one of the highest-ranking Nazis to ever evade prosecution. Moreover, given his infamy for the cruel medical experiments he carried out on the prisoners in Auschwitz, there was considerable interest in finding him and bringing him to justice.

In January of 1985, The New York Times reported that Mengele had attempted to enter Canada in the 1960s. This information was found by Sol Littman in U.S. government files. The Deschênes Commission later determined that Mengele had never lived in Canada nor attempted to obtain a visa to enter Canada in 1962.

The issue of war criminals who had escaped prosecution and were living in peace in various Western nations had become a major issue in the late-1970s and throughout the 1980s. In a well-known Canadian example, war criminal Helmut Rauca had been extradited in the early 1980s to face charges in West Germany after having lived in Canada for almost 30 years.

On 7 February 1985 Canada’s justice minister announced that an independent commission of inquiry would be conducted by Jules Deschênes, a Justice of the Court of Appeal of Quebec. The commission was tasked with determining whether Nazi war criminals were residing in Canada, and what legal measures might be used to bring these people to justice.

Proceedings

The commission investigated war crimes, which are generally defined as offences committed during a time of war against an enemy. It also looked at the then relatively new concept of crimes against humanity. This is loosely defined as all atrocities committed in times of war or peace against any identifiable group, including people resident of the offending country, or the territories it claimed.

The commission was tasked with investigating whether war criminals were living in Canada, and if so, how they obtained entry. It was also to provide advice to the federal government about how to bring any such war criminals to justice in Canada.

Some 883 cases were investigated. This included a master list of 774 individuals, an addendum which included 38 additional names, and a list of 71 German scientists and technicians. From the master list, 341 were found to have never lived or landed in Canada, 21 had landed in Canada but then left for another country, 86 had died in Canada, and four could not be located.

In addition, no prima facie evidence of war crimes could be found for another 154 suspects. Prima facie is a legal term meaning “based on first impressions,” and is accepted as correct until otherwise proven false. Because the commission was primarily concerned with only the cases of Nazis and their collaborators who could be prosecuted for war crimes with available prima facie evidence, 606 cases were determined to merit no further action and were therefore closed.

In 97 cases, prima facie evidence could not be found, but was believed to exist in the Soviet Union or Eastern European nations. Time constraints prevented the commission from investigating the 38 names on the addendum, the list of German scientists and technicians, and 34 names from the master list for which answers had not been provided by foreign agencies. Because of these and other limitations, the commission determined there was only prima facie evidence of war crimes in just 20 cases. In the confidential second part of the commission’s final report, it made recommendations on how to proceed in these cases, including deportation and criminal prosecution. The government was encouraged to further investigate the remaining cases.

Recommendations and Conclusions

The final report of the Deschênes Commission was submitted to the government on 30 December 1986, in two parts, the first made public when it was delivered to Parliament in March of 1987 and the second remaining confidential to this day. The delay in the publication of the first part of the report was so that key details could be made more general so as not to identify individuals.

The commission recommended changes to the Criminal Code that would allow for the prosecution of crimes that occurred in Europe during the Second World War to be prosecuted in Canada. It also recommended changes to the Extradition Act to make the removal of individuals sought by foreign countries for war crimes simpler. In addition, the commission recommended changes to laws and procedures governing denaturalization (the removal of a person’s citizenship) and deportation.

The report of the commission concluded that the number of war criminals alleged to be living in Canada had been exaggerated, from a handful to thousands by the time the commission took place. This exaggeration could be explained, however, by including war-time collaborators with war criminals, as well as accusations against entire military units. This was the case with the Ukrainian Galicia division, which the commission cleared of collective war crimes. The decision to do so was controversial. The Galicia Division was part of the Waffen-SS, which was determined to be a criminal organization during the Nuremberg Trials by the International Military Tribunal. Scholarly research conducted since the mid-1980s has further confirmed the Galicia Division participated in war crimes. A heavily redacted document was released through an Access to Information request that revealed members of Nazi-sponsored Ukrainian police units who participated in the killing of Jews were later members of the Galicia Division. Though the government had been aware of the report, they had chosen not to publish it.

Some people have concluded that the inquiry helped to whitewash the historical record and was functionally incapable of producing tangible results. These conclusions are based on the following reasons: the commission’s limited scope, its failure to consult Soviet and Eastern European archives, its apparent failure to consult the findings of the Nuremberg Trials and other historical precedents, the suppression and censorship of some documentary evidence, and pressure from the government to conclude the inquiry quickly.

Tensions in Canada

The Deschênes Commission led to a very public and emotional debate between Canada’s Jewish community and Canadians of Eastern European descent, particularly those who had immigrated to Canada after the Second World War. The Canadian public had been shocked by Harold Troper and Irving Abella’s 1982 book None is Too Many, which demonstrated that Canada’s overtly antisemitic immigration policies prevented European Jews from finding refuge in Canada. That Canada was now thought to be harbouring Nazi war criminals, and had been doing so for several decades, was almost unbearable.

For non-Jewish Canadians of Eastern European ancestry who either immigrated to Canada after the war, or their families, they were concerned that the commission would turn into a witch hunt. Members of these communities argued that they had no choice but to side with the Nazis against the Soviet Union (a contentious and still-debated claim). Members of these communities were particularly upset with the prospect that the commission would travel to the Soviet Union and Communist Eastern European countries to consult documents kept by those governments. They argued that Soviet evidence couldn’t be trusted. By contrast, Jewish groups argued that there was no basis or evidence that the Soviets had ever provided inaccurate or biased materials.

Justice Jules Deschênes attempted to set conditions for the consultation of evidence from the Soviet Union and Eastern Bloc countries, but a satisfactory response was not obtained from the Soviet Union until the summer of 1986. At that point it was determined to be too late, given that the commission was already behind schedule at that point (it was originally to have concluded at the end of 1985).

Subsequent Developments

As a result of the Deschenes commission, the Criminal Code was amended in mid-1987 to allow the trial of suspected Nazi war criminals living in Canada. In December of 1987, charges were laid against Imre Finta. (See also Finta Case.) Finta was the first Canadian to ever be prosecuted for war crimes under the new amended Criminal Code. He was accused of forcibly confining over 8,600 Jews in a brick factory located in Szeged, Hungary, in 1944, from which they would then be sent to the Nazi death camps at Auschwitz and Stasshof. Finta was ultimately found not guilty, and no further war crimes trials of Nazis or Nazi collaborators were ever held in Canada afterwards.

Despite this, the issue of war criminals in Canada was not yet settled. Ten years after the amendments to the Criminal Code were made and Imre Finta was prosecuted, Canadian Jewish groups, Holocaust scholars, Nazi hunters, and the news media were still investigating. In 1997 documentaries, reports, and segments on popular investigative television programs were published or broadcast on the CBC, Global TV, NBC, the New York Times and CBS’ 60 Minutes.