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October 19, 1999 |
| Without question, Justice Deschênes and I had numerous differences of opinions in the two years in which he headed the Commission of Inquiry. Nevertheless, we still greet each other cordially when we chance to meet at conferences. As any lawyer will tell you, judges frequently scold them in open court and warn them that they are getting close to this line or that legal error, yet it is usually taken in good grace and professional stride. So, despite the curtness of the admonitions which you quoted, I suggest you not take them too seriously. I know I didn't even though I am a journalist and not a lawyer. |
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It appears that in 1985, Mr Sol Littman (Canadian representative of the Simon Wiesenthal Center of Los Angeles), a private citizen, woke up one day under the impression that the notorious war criminal Josef Mengele (now dead) might once have tried (unsuccessfully) to apply for a visa to emigrate to Canada. Having washed and breakfasted, Littman suddenly realised that his discovery further implied that "about 500" other war criminals were actually within the country, whose "last-known address and, in most cases descriptions of alleged crimes" were known to him. Then, as he laid down his coffee-cup, a fresh thought struck him. Why just 500? It was a pleasingly round number, but possibly a little restricted. Clearly the Canadian Government must be informed of the viper it had so long unwittingly harboured in its bosom, but it was vital to get the facts straight first. Mr Littman took a turn in the garden. Scratching his head and plucking feverishly from time to time at his beard, he swiftly began to see things in a more realistic light. 500 collaborators was all right for a beginning. But then, when one began to think about it, did it not appear a little inadequate? Surely a more realistic figure might be an "estimated 3,000 war criminals and Nazi collaborators [who] made their way to Canada after the war"? Hmm ... 3,000 might seem rather too many to uncover all in one go, especially after forty years. Let's say "at least 2,000 of them still live here." How the odd thousand dropped out was hard to say: perhaps one could fall back on the Bermuda Triangle or a major landslide in northern British Columbia. After all, there had to be some dramatic explanation, since a bare two months earlier all 3,000 had still been at large in Canada. By now Littman's brain must have been working at fever pitch, and his neighbours (this is a dramatic but surely not unreasonable reconstruction) noticed his gesticulations and mutterings becoming increasingly agitated. Why should there not be 4,000 at large, none of whom had disappeared after all? Well, perhaps the precise number could be left for the moment. The main thing was to get something done about the alarming problem, whatever it was. What Littman was certain of was that "French, Belgian, Dutch, German, Estonian, Latvian, Lithuanian, Hungarian, Romanian, Slovak and Croatian" ethnic groupings among Canadian citizens included many "tough old birds in their late 60s and early 70s ... who enthusiastically joined in exterminating Jews and gypsies." (Had his gaze, like that of the senator from the film The Manchurian Candidate, rested momentarily upon the spaghetti tin, with its "57 varieties"?). Mr Littman's restless, prying mind remained dissatisfied. Where would Galileo have been had he permitted himself to rest content with discovering the moons of Jupiter? Now he had it! Abruptly, the polyglot troop (rather a mouthful for press headlines, it could be thought) was dropped in favour of the Ukrainians. Henceforth it was they who became virtually the exclusive target of Mr Littman's campaign. With commendable speed he conducted exhaustive researches into the subject, publishing his conclusions in a lengthy article in The Windsor Star of 16 July 1985. The only sources actually cited were a book by a Soviet author (We Accuse, Dnipro Publishers, Kiev) and "the Soviet News agency Tass," but it would be naïve to suppose this the extent of his investigations. They must surely have matched his imaginative powers, which are broad indeed. Understandably alarmed by news of "the possibility that Joseph Mengele, an alleged Nazi war criminal, may have entered or attempted to enter Canada," and by Mr Littman's "concern that other persons responsible for war crimes ... are currently resident in Canada," the Honourable John C. Crosbie, Minister of Justice, obediently announced the formation of the Commission of Inquiry on War Criminals, to be presided over by Mr Justice Jules Deschênes. Eight months after the establishment of the Commission, before any of the 500 or 5,000 war criminals in Mr Littman's address book had been summoned to testify, it suddenly occurred to someone to ask Littman to produce the evidence on which he based his allegation that Mengele had made an abortive attempt to enter Canada twenty-three years earlier. As The Globe and Mail reported on 5 December 1985: "Littman said that he had obtained a document through freedom-of-information laws in the United States that showed that, in a request from Cologne, West Germany, in 1962, the RCMP was asked whether it had any information on a Joseph Menke � who might have been Mengele. Mr Littman said he 'got the impression' from the document that it was about an immigration application from Mengele." Littman's agile mind had at once grasped the logic of the situation. Menke and Mengele must be one and the same person: of that there could be no doubt. And then of course it followed that the failure of this composite persona to acquire an immigration visa in 1962 must establish beyond reasonable doubt that 500 French, Belgian, Dutch, German, Estonian, Latvian, Lithuanian, Hungarian, Romanian, Slovak, and Croatian war criminals were at large in Canada and recorded in Mr Littman's address book a quarter of a century later. That was it! Alternatively it proved that there were 2,000 or 4,000, or 3,000 (what was it?); certainly it proved something, and that something was quite sufficient to set the keen legal minds of the Deschênes Commission to work. Or so at first it seemed. Over a year and several million dollars' worth of tax-payers' money later, it turned out that the Justice Department had been less impressed by any direct knowledge of Mr Littman's lucubrations, than by the fact that they were sanctioned by reported Ralph Blumenthal in an article in the New York Times. Had any unworthy shadow of doubt lingered over Littman's veracious account, Blumenthal's imprimatur speedily removed it. It was regrettably inevitable that there existed some whose slow minds had failed to keep pace with these developments; and even those who, in an age replete with cynicism and shattered illusions, doubted whether the legal procedure adopted might be fully in accord with normal juridical practice in civilised countries. It would be charitable to attribute these doubts to ignorance, or lack of that intellectual agility which is Mr Littman's most marked characteristic. One cannot but fear, though, that among a hardened few (French, Belgian, Dutch, German, Estonian, Latvian, Lithuanian, Hungarian, Romanian, Slovak, and Croatian, for example) reservations of more selfish motivation had prevailed. Away with such pettifogging prejudices! The Commission may claim weighty precedent in a celebrated judicial process of comparable significance, whose proceedings were published so long ago as 1865. Surely there can be few who do not recall the remorseless logic of the prosecution's case on that memorable occasion:
At the time of writing it is unclear whether the Commission has reconsidered its position, in view of its belated discovery of the nature of Mr Littman's "facts," which bear such marked resemblance to those favoured by Lewis Carrol's King of Hearts. One would like to think so, but a reading of its Decision Concerning Foreign Evidence, published on 14 November 1985, provides small grounds for optimism in this respect. No one questions the propriety of prosecuting people held responsible for participation in war crimes, even if the exclusivity of the category under review suggests an ambivalent attitude with regard to our common humanity. After all, the suggestion that one race rather than another should be regarded in a special light when reviewing the injustices of recent history reminds one a little of ... well, a doctrine one hoped had passed away forever just forty hears ago. What aroused widespread indignation among the general public was the Commission's proposal to admit Soviet-supplied testimony as acceptable accessory evidence in indicting Canadian citizens. On this point as with others, the Commission was at one with Mr Littman, who had already pursued his own researches in Soviet archives. As the Ottawa Citizen reported on 5 June 1985:
It is true the Soviet archivists proved niggardly in the provision of photocopies of documents in their custody; but as it is uncertain whether Mr Littman can read a word of Russian or any other East European language, they may have felt some justification for their reluctance. At any rate, "the raw material is there, the archivists are helpful, and the resources of a commission of inquiry could accomplish far more" than Mr Littman modestly conceded he was able to achieve. Nikolai Tolstoy, Trial and Error: Canada's Commission of Inquiry on War Criminals and the Soviets, Justinian Press, Toronto, 1986, pp. 4-7. |
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It may be argued that the naïvete and ignorance of both Mr Littman and the Commission are so evident as to be self-defeating. Already the Commission has found itself seriously embarrassed by the predictable revelation that Mr Littman's "discovery" of Mengele's alleged attempt to enter the country stemmed from an overheated imagination. Even if true, it would have comprised an absurdly frivolous reason for hounding numbers ("500," "3,000," "4,000," etc.) of Canadian citizens through the medium of a massively-funded Government Commission. That virtually everyone concerned has "egg all over his face" would seem to be putting it mildly. The real damage, however, lies much deeper than the harm done to the reputation of a scattering of amateur sleuths or excitable lawyers, meddling (so it might seem) with matters of historical evaluation beyond their professional competence. Might it be possible for Mr Littman and his confederates to pause for a moment, and ask themselves who is likely to benefit from their proposal to accept evidence from Soviet sources as valid testimony in Canadian courts? It could just be that, as a result of the use of such evidence, a genuine war criminal were brought to justice who would otherwise have escaped. That would certainly be a laudable achievement. But consider the far-reaching consequences which have already taken place. The blanket accusations against whole ethnic groups, based on nothing more than a private citizen's inability to read the correct name on an immigration paper, have aroused considerable hostility between Canadians originating from occupied Eastern Europe and those from the Jewish community: hostility which one hoped a common experience of suffering might have dissipated forever, and which it is surely the first task of Government to allay rather than provoke. Anti-semitism is neither worse nor better than anti-Ukrainianism, anti-Russianism, or any other form of collective hatred. Nikolai Tolstoy, Trial and Error: Canada's Commission of Inquiry on War Criminals and the Soviets, Justinian Press, Toronto, 1986, pp. 16-17. |