Finta Case

In its first decision relating to the Finta war crimes case (1993), the Supreme Court of Canada permitted 3 interested groups to intervene - the Human Rights League of B'nai B'rith Canada, the Canadian Jewish Congress and InterAmicus. In the case, which dealt with war crimes and the compatibility of certain provisions of the Criminal Code with several sections of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada held that a delay of 45 years before a charge was laid should not be included in the notion of "unreasonable delay." It is only from the commencement of the date of laying the charges that the "delay" begins to run. Further, the delay of 45 years tends to favour the accused since the memory of witnesses is extinguished with time. A delay of one year between the entry into vigour of the new provisions and the laying of charges is reasonable when account is taken of the investigative work that must be performed.

In the second decision (1994), the Supreme Court decided that the sections of the Criminal Code dealing with war crimes and crimes against humanity (sections 7(3.74) and 7(3.76)) did not violate the provisions of the Charter relating to the principles of fundamental justice (section 7), thereby permitting the removal of the defence of obedience to orders or law, or the right to be informed with the least possible delay of the specific offence (subsection 11(a)), or the right to be tried within a reasonable time (subsection 11(b)), or the right to the presumption of innocence (subsection 11(d)), or the requirement that an action or omission constitute an offence (subsection 11(g)), or the protection against cruel and unusual punishments (section 12) and to equality rights (section15). More particularly, it was subsection 11(g) of the Charter that allowed, as an exceptional resource, criminal prosecutions based on violations of general principles of law recognized by the community of nations: Canadian courts were found to be able to apply Canadian criminal law to acts committed outside of Canada only where those acts constituted war crimes or crimes against humanity. Mr Finta was ultimately acquitted.