TORONTO (Mar. 15)
Canadian Jews are angry at the Justice Department’s decision to stay proceedings against alleged Nazi war criminal Michael Pawlowski because of lack of evidence.
It is the third unsuccessful prosecution by the department’s war crimes unit since it was established by Parliament in September 1987.
Pawlowski, a naturalized Canadian living since 1951 in Renfrew, Ontario, was charged on Dec. 15, 1989 with eight counts of war crimes and crimes against humanity. The charges were based on Pawlowski’s involvement in the 1942 killings of 410 Jews and 80 Poles in the Minsk region of Nazi-occupied White Russia (now known as Belarus). At the time, he was a local policeman.
The case was crippled by a ruling last May against a government request to send a commission to the Soviet Union to gather and videotape testimony from elderly witnesses unable to come to Canada to testify.
Justice James Chadwick, a judge of the Ontario Court, General Division, ruled twice that videotaped evidence could jeopardize Pawlowski’s right to a fair trial.
On Feb. 6, the Supreme Court of Canada denied federal prosecutors leave to appeal the pretrial ruling.
A witness who could have given critical testimony on the massacre of 80 Poles and eight Jews in the village of Yeskovichi died last May.
The decision to stay proceedings rather than drop the charges altogether means the prosecution could be reopened if new evidence arises, however unlikely that may be.
‘A TRAGEDY FROM THE START’
Pawlowski broke his silence in the case briefly outside court after the charges were stayed. “I feel great because I was innocent at the beginning, and for two-and-a-half years I have suffered, for what?” he asked. “That’s really shameful.”
Pawlowski’s lawyer, Donald Bayne, said there never was a case against the retired carpenter, only fabricated evidence invented by the KGB to frame the former anti-Communist fighter.
Earlier this month, Bayne made a request to Chadwick to recover $155,000 (Canadian) in costs associated with his client’s defense.
Sol Littman, director of the Simon Wiesenthal Center’s Canadian office, was dismayed by the Justice Department decision. “The Pawlowski case has been a tragedy from the start,” he said.
“What you have is inexperienced investigators making some serious mistakes in the gathering of evidence, compounded by a series of unanticipated legal judgments that virtually made it impossible to collect any evidence in the former Soviet Union,” he said.
“Essentially the court refused to accept the validity of what is known as commissioned evidence, that is the videotaping of witnesses and the presentation of the videotaped evidence in the courts.
“This decision runs contrary to the practices employed” in Canada, the United States, Germany, Holland and Scotland, he said.
“If the Pawlowski case is allowed to serve as a precedent, then we might as well kiss the war crimes prosecutions process goodbye.”
B’nai Brith Canada spokesman Paul Marcus expressed extreme disappointment in the ruling. He said it indicates “low priority and a lack of sympathy from the judiciary.
“It points to the need for other remedies,” such as denaturalization and deportation, he said.
Milton Harris, chairman of Canadian Jewish Congress’ war crimes committee, was also sharply critical of the government.
‘JUST GOING THROUGH THE MOTIONS’
“The Justice Department is just going through the motions without the dogged determination necessary to produce results,” he said. “The Crown’s decision is the sad culmination of its mishandling of the Pawlowski case almost from the outset.”
Harris believes the Justice Department “should have gone to trial and made a fresh application before the trial judge to collect evidence abroad. Had that been denied, they could have gone to the Court of Appeal,” he said.
Unlike in the United States, Canadian law allows for criminal prosecutions for offenses allegedly perpetrated before the accused entered the country, in addition to civil proceedings such as deportation or extradition.
In the first trial under the war crimes amendment to the Criminal Code, Imre Finta, 79, of Toronto was acquitted in May 1990 of kidnapping, forcible confinement and robbery of 8,617 Jews in the Hungarian city of Szeged in 1944.
Last March, charges were dropped against Stephen Reistetter of St. Catharines, Ontario, who was accused of sending some 3,000 Jews in Bardejov, Slovakia, to Nazi death camps.
As in the Pawlowski case, the Crown said there was insufficient evidence to proceed against Reistetter after two witnesses died and others proved unwilling or incapable of testifying.
In Vancouver, Jacob Luitjens, 72, was stripped of his Canadian citizenship Nov. 7 after a court ruling Oct. 23 that he had concealed his past Nazi ties when he immigrated to Canada from Paraguay in 1961.
The denaturalization paved the way for the retired University of British Columbia botany instructor to be sent to the Netherlands, where he was tried in absentia in 1948, convicted of collaborating with the enemy in time of war, and sentenced to life imprisonment.
The Netherlands officially requested Luitjens’ extradition in January after the extradition treaty between the two countries was amended Dec. 1 to include the crime of collaboration.
JUSTICE MINISTER STILL COMMITTED
A 1986-1987 commission headed by Justice Jules Deschenes identified 20 prime Nazi war crimes cases to be urgently pursued. The Quebec Superior Court judge also recommended another 200 cases be further investigated.
Despite the setbacks, Justice Minister Kim Campbell has reaffirmed her commitment to bring war criminals to justice.
“I met with our war crimes unit just a few months ago and made it clear to them that this was not a case of baseball, it was not a case of batting 500 or 1.000; that we would deal with each case on an individual basis, and that they should pursue their work on that basis,” she said.
Littman of the Wiesenthal Center warned that “if we don’t get four new cases into the courts this year, we might as well assume the government has opted out of the whole war crimes prosecution business.”