Saturday, November 25, 2006

Louise Arbour: They Can Follow Orders

As a follow-up to yesterday's posting, my friend and neighbor Dr. Efraim Zuroff told me that Louise Arbour was a member of the only Canadian Court to ever aquit a Nazi War Criminal on the grounds that he was only following orders.

'Nuff said.

1 comment:

Eliyahu said...

Notwithstanding my dislike for Louise Arbour's public position regarding Israel I can't agree with Mr. Zuroff's reference to the Finta case as a proof of her biases.

The Finta decision was a technical one regarding Canadian War Crimes legislation and whether the trial judge was correct in allowing the jury to decide issues as to the legislation that the prosecution argued were solely within the judge's jurisdiction as a trier of lsw and not to have been left to the jury which the trier of fact (and the jury in that case then acquitted Finta).

To read the majority decision of the Ontario Court of Appeal which included Louise Arbour (although I can not determine who wrote the decision but as her name comes first I assume that she was senior among those judges in the majority) see:
www.canlii.org/on/cas/onca/1992/1992onca10009.html

The Court of Appeal panel split 3:2 with strong dissenting opinions by Mr. Justice Dubin, (now retired as) the Chief Justice of Ontario who was highly respected as a very strong litigator and an excellent judge and Mr. Justice Tarnopolsky, an expert on civil rights and also a strong judge, who wrote his own separate opinion. The minority on that court would have overturned Finta's acquittal by after a jury decision in his favour and sent him back for a new trial.

The majority decision of the Ontario Court of Appeal was thereafter upheld by the Supreme Court of Canada in a split 6:3 decision, see: http://www.canlii.org/ca/cas/scc/1994/1994scc27.html

The bottom line:

Louise Arbour and the other two judges who joined her in the majority decision framed that decision as one regarding technical issues of criminal law procedure. That decision was upheld by a majority of the Supreme Court of Canada. While the logic of the dissenting decisions in the Court of Appeal and the dissenting opinions in the Supreme Court of Canada is quite strong, we can't say that the majority in the Supreme Court of Canada that upheld the decision of the trial judge were biased nor that the other two judges who support Louise Arbour in the decision of the majority in the Ontario Court of Appeal were biased.

Lawyers know that in making decisions where for technical reasons such decisions can be decided either one way or the other with equal logic depending upon what legal principal a judge wishes to emphasize as being paramount that a judge's personal moral beliefs may play a decisive role(see Dworkin, Law's Empire). However in most Common Law jurisdictions such decisions are framed as technical legal decisions and we don't know to what extent, if any, such private beliefs affected the decisions.