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In re Attorney General for Canada; ex parte Heinrich [2003] 1 C. of Sh. 1

Fact Pattern

IN RE ATTORNEY GENERAL FOR CANADA, EX PARTE HEINRICH

Matter No.…………1/2003
Hearing Date………17-21/03/2003

Statement of Agreed Facts

Karl Heinrich was born in Germany in 1920. During the Second World War he joined the SS, attaining the rank of Oberleutnant. Thereafter he was appointed to various positions in the administrative framework of the extermination camps, ultimately as a senior guard at Sobibor death camp and then at Chelmno. There he supervised, although he did not actively participate in, the murder of many thousands of Jews from all over occupied Europe.

After the war, Heinrich made his way eventually to Canada where he became a citizen in 1951 and worked in the automotive industry in Windsor, Ontario until his retirement in 1990. He lived there a modest and exemplary life, raising a family and, by all accounts, participating quietly in the local community. Since 1990 however, his life has been consumed by the accusations concerning his conduct during the War.

After a lengthy battle, Heinrich was extradited to Israel, where he faced charges of being “Ivan the Terrible”. He was acquitted on the grounds that the evidence on this point was inconclusive. The Supreme Court, following the precedent set in the Demjanjuk case, declined to pursue further charges even though the original trial had determined the extent of Heinrich’s actual involvement. Heinrich was returned to Canada in 2000.

In a letter to the Attorney General for Canada, Heinrich has admitted that he was in the SS and on active duty at the Sobibor and Chelmno death camps during the last two years of the war. He quoted the following statement made by the defendant in the Eichmann trial:

    It was my misfortune to become entangled in these atrocities. But these misdeeds did not happen according to my wishes. It was not my wish to slay people. The guilt for the mass murder is solely that of the political leaders… I would stress that I am guilty of having been obedient, having subordinated myself to my official duties and the obligations of war service and my oath of allegiance and my oath of office, and in addition, once the war started, there was also martial law.

    … This obedience was not easy. And again, anyone who has to give orders and has to obey orders knows what one can demand of people. I did not persecute Jews with avidity and passion. That is what the government did. Nor could the persecution be carried out other than by a government... I accuse the leaders of abusing my obedience. At that time obedience was demanded, just as in the future it will also be demanded of the subordinate. Obedience is commended as a virtue. May I therefore ask that consideration be given to the fact that I obeyed, and not whom I obeyed.

The Attorney General has not responded to this argument. Nevertheless, after receiving a comprehensive medical report from an empanelled inquiry, he has now declined to press further charges. The report reads in part:

    Karl Heinrich is 82 years old and in poor health, having suffered two minor strokes this past year. The cerebro-vascular ailments manifested themselves partly in the form of minor brain hemorrhages and momentary isquemic attacks, but they have also caused a progressive deterioration lacking in acute symptoms. There is clinical evidence that the damage extends throughout the brain. This includes damage to the piramidal tracts, causing spasticity in the basal ganglions, producing occasional symptoms of Parkinson's disease. The presence of primary reflexes indicates that lesions to the frontal lobes, and the loss of memory is attributable to bilateral damage in the structure of the temporal lobes. Difficulties in the ability to comprehend are a secondary effect of memory loss. While many of the ailments may be attributed to areas of the brain supplied by the basilar artery (which shows signs of calcification according to the brain scan) the damage to the frontal lobes indicates more generalised arterial illness and deterioration in brain function.

Citing the previous decision in the Pinochet case, the Attorney General argues that it would be against the interests of justice for a trial to proceed now or in the future.

Procedural History

The Attorney General rejects the jurisdiction of the court and will not participate. For the purposes of legal argument, the respondents representing Heinrich are prepared to accept the locus standi of the applicants and the initial jurisdiction of the Court to hear the matter.

The applicants, representing Amnesty International, apply for a writ of mandamus to be issued against the Attorney General requiring him to exercise his office in the bringing of proceedings against Karl Heinrich. The arguments relied upon in the statement of claim are:

    (a) the facts reveal an offence against the laws of this jurisdiction
    (b) proper interpretation of those laws requires their strict enforcement

The respondents, representing Heinrich, argue as follows:

    (a) the facts do not reveal an offence against the laws recognized in this jurisdiction
    (b) proper interpretation of law does not require their strict enforcement
    (c) the court should in the exercise of its discretion decline jurisdiction on the basis that this is an inappropriate forum to consider these questions

Rules of Court

The Court of Shakespeare adheres, mutatis mutandis, to the procedure of a final appellate court under the Rules of the McGill Moot Court. Written facta will be 12-15 pages in length in the form indicated in the Rules, exchanged on Thursday February 20 2003.

Oral argument will be presented to the Full Court for judgment, in the week beginning March 17 2003. Each side will have up to 30 minutes to present their case and each counsel must speak for at least 10 minutes. Five minutes rebuttal time may be reserved.

The Court’s sole Institutes, Codex, and Digest, is comprised by the plays of William Shakespeare.

Literature on the nature and theories of legal interpretation; on the origin and reception of law; and on the particular interpretations of Shakespearian texts or the canon as whole, are relevant in determining how the Court is to understand and apply the laws of Shakespeare. They may be of assistance to the court but they cannot supercede its primary textual duty.

Primary and secondary legal material from other jurisdictions may inform your understanding of the issues but they are neither binding nor influential in this jurisdiction.

Selected Authorities

Mandamus
http://www.lectlaw.com/def2/m079.htm

Legal Writing and Pleading, McGill Faculty of Law

The Merchant of Venice (1596)

The Winter’s Tale (1610)

The Tempest (1611)

USA v Alstoetter et al (1948)
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm

Attorney General v Eichmann (1962)
http://wings.buffalo.edu/law/jlsa/resources/eichmann.htm
http://www.nizkor.org/hweb/people/e/eichmann-adolf/transcripts/Appeal/Appeal-Session-07-07.html

Decision of Israeli Supreme Court on Petition concerning John (Ivan) Demjanjuk (1993)
http://www.israel.org/mfa/go.asp?MFAH0azi0

Bartle v Commissioner of Police, ex Parte Pinochet (1999)
http://www.bailii.org/uk/cases/UKHL/1999/17.html

HLA Hart, ‘Positivism & the Separation of Law & Morals’ 71 Harv. L. Rev. 593 (1958)

Lon Fuller, ‘Positivism and Fidelity to Law’ 71 Harv. L. Rev. 630 (1958)

Robert Cover, ‘Nomos and Narrative’ 97 Harvard Law Review 4-68 (1983)

Richard Strier, ‘Faithful Servants: Shakespeare’s Praise for Disobedience’ in Heather Dubrow and Richard Strier, The Historical Renaissance (1988)

Peter Goodrich, Law in the Courts of Love (1996)

Peter Stein, Roman Law in European History (1999)

Paul Yachnin, ‘Shakespeare and the Idea of Obedience’ 24 Mosaic 1