Date: 20060817
Docket: T-560-04
Citation: 2006 FC 993
Ottawa, Ontario, August 17,
2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
JOSEF FURMAN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Mr.
Josef Furman, the Defendant, is 87 years old. Originally from Ukraine, he came to Canada in
July 1949 from Germany, where he had lived
since 1942. Mr. Furman became a Canadian citizen in 1957. Mr. Furman currently
resides in Edmonton in a long-term care
facility and suffers from dementia.
[2] The
Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to
revoke the Canadian citizenship of Mr. Furman on the basis that he was admitted
to Canada and obtained his citizenship by false representations or fraud or by
knowingly concealing material circumstances. Specifically, the Minister alleges
that Mr. Furman failed to disclose a change in his surname and that he failed
to disclose the following activities during World War II:
(a) his
collaboration with German occupation authorities;
(b) his
engagement with the SS Trawniki Training Camp;
(c) his
activities, as a Trawniki guardsman, at the Warsaw Ghetto in April and May,
1943 and at the Bialystok Ghetto in August 1943; and
(d) his
activities as a concentration camp guard at the Flossenbürg concentration camp
in 1943 and 1944.
[3] From a procedural
perspective, these proceedings began with a Notice, dated November 13, 2003, in
which the Minister at that time (the Honourable Denis Coderre) advised Mr.
Furman that he intended to ask the Governor in Council to revoke his Canadian
citizenship on the basis of the above-noted allegations. Mr. Furman exercised
his right to ask that the matter be referred to the Federal Court. The matter
was then referred to the Federal Court by the issuance of a Statement of Claim
filed by the Minister.
[4] The hearing of this
matter was held together with that of Canada (Minister
of Citizenship and Immigration) v. Jura Skomatchuk (Court File No.
T-440-04) because of the similarity in the evidence for both individual
matters. However, these reasons and decision relate only to Mr. Furman.
[5] For
the reasons that follow, I am satisfied, on a balance of probabilities, that
Mr. Furman was an SS guardsman of the Third Reich, during which time he was
engaged in the elimination of the Warsaw and Bialystok ghettos and
as a concentration camp guard. He failed to disclose that information to
immigration officials at the time he came to Canada. In other
words, Mr. Furman obtained his Canadian citizenship by false representation or
fraud or by knowingly concealing material information. However, the Minister
has not persuaded me that Mr. Furman failed to disclose the change in his
surname from Furmanchuk to Furman. Given these conclusions, there is no need to
consider the allegation of collaboration.
II. Approach to Analysis
[6] As
discussed in more detail below, the task that is assigned to this Court is to
decide whether Mr. Furman obtained his Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances (s.
18(1)(b), Citizenship Act, R.S.C. 1985, C-29 (the Citizenship Act,
1985)). Having heard and reviewed the evidence presented in these
proceedings, I have concluded that my decision requires that I make a series of
findings of fact that address the following questions.
- Was Mr. Furman born
“Iosef Furmanchuk”?
- Was an individual
named “Furmantschuk” trained as an SS Trawniki guardsman and did this
individual participate, as a guard, in activities at the Jewish ghettos of
Warsaw and Bialystok and at the Flossenbürg concentration
camp?
- What were Mr.
Furman’s activities during World War II? The Minister submits that Mr.
Furman was the “Furmantschuk” Guardsman referred to in 2, above. Mr.
Furman submits that he was brought to Germany on May
1, 1942 and provided forced farm labour in Eltheim,
Germany until the end of the war.
- Would Canadian
immigration officials have interviewed Mr. Furman and sought information
on his World War II activities? As there is no direct testimony by any
immigration official who would have interviewed Mr. Furman, the answer to
this question involves a review of Canadian immigration and security
procedures in place in the relevant time period.
- If it is shown that
Mr. Furman is the same “Furmantschuk” Guardsman described in 2, above, did
Mr. Furman conceal these wartime activities from Canadian immigration
officials prior to coming to Canada?
- If I find that Mr.
Furman did not disclose his true name, his status as a Soviet prisoner of
war or his wartime position as a guardsman with the German SS to Canadian
immigration officials, what impact would that have had on his immigration
to Canada and later acquisition of Canadian citizenship?
- If Mr. Furman
failed to disclose his change of name upon application for Canadian
citizenship, what impact would that have had on his citizenship?
[7] Before
addressing these specific questions, it would be helpful to the reader to
understand the legal framework under which this proceeding has been commenced.
Further, as the most serious allegations by the Minister involve activities as
a concentration camp guard, it may also be useful to have an overview of the
system of concentration camps and labour camps in the territories held by the
Third Reich. More specifically, since the alleged activities are associated
with the SS Trawniki Training Camp, I will include an overview of the history
of and procedures for training and use of Trawniki guardsmen.
[8] These reasons are
organized as follows, with each section commencing at the paragraph noted.
I. Introduction……………………………………………………………………..[1]
II. Approach to Analysis…………………………………………………………....[6]
III. Legal Framework ……………………………………………………………….[9]
A. Procedural Rights…………………................................................................[9]
(1)
Section 10(1) of the Citizenship Act, 1985................................................[10]
(2)
Deeming Provision of s. 10(2) of the Citizenship Act,
1985.....................[12]
(3)
Section 18 Notice………………………………………………………..[13]
(4)
Effect of Court’s Determination under s. 18……………………………..[15]
B. Substantive
Rights…………………………………………………………....[16]
(1) Section 10(1) of the
Citizenship Act, 1948.....................................................[17]
(2) Meaning of “lawfully
admitted”…………………………………………...[18]
C. Burden and
Standard of Proof…………………………………………………[21]
IV. Historical
Context………………………………………………………………...[26]
A. Witnesses..............................................................................................................[26]
B. Concentration
and Labour Camp System of the Third
Reich…………………[32]
(1) Overall
Concentration Camp System……………………………………....[32]
(2) Administration of
the Camps in the General Government………………….[38]
(3) Camp System in the Lublin region of
the General Government……………[44]
(4) Trawniki Training
Camp and use of Soviet POWs…………………………[47]
(5) Trawniki Processing
of and Documentation for Guardsmen Trainees………[53]
(6) Role of Guardsmen………………………………………………………….[58]
(7) Integration with SS
Death’s Head Units…………………………………….[66]
V. Allegation
of Change of Name……………………………………………………..[69]
VI. Background
and Role of Mr. Furman in World War II…………………………….[78]
A. Undisputed
Facts……………………………………………………………….[78]
B. Mr. Furman’s
Evidence………………………………………………………...[81]
C. Guardsman
Furmantschuk……………………………………………………...[95]
D. Identity
of Guardsman Furmantschuk….……………………………………..[121]
E. Conclusion…………………………………………………………………….[129]
VII.
Immigration of Mr. Furman to Canada……………………………………………[130]
A. Mr. Furman in
post-war Germany……………………………………………..[136]
B. Evolution of Canada’s
Immigration Policy…………………………………….[140]
C. Role of RCMP………………………………………………………………….[143]
D. RCMP Security
Screening Proceedure ….……………………………………..[153]
E. Grounds for
Rejection …………………………………….……………………[158]
F. Conclusion……………………………………………………………………...[168]
VIII.
Screening of Mr. Furman…………………………………………………………..[170]
IX. Failure
to Disclose True Name of Birth……………………………………………[175]
X. Acquisition
of Citizenship………………………………………………………….[180]
XI. Submissions
of Mr. Furman on Decision in Dueck………………………………...[186]
XII. Officer’s
Exercise of Discretion…………………………………………………....[201]
XIII. Summary
of Findings………………………………………………………………[205]
XIV. Overall
Conclusion..………………………………………………………………..[207]
III. Legal Framework
A.
Procedural Rights
[9] With respect to the
legislation that governs these proceedings, the procedural rights of Mr. Furman
are governed by the legislation in force when the citizenship revocation
proceedings are initiated. In this case, the relevant provisions are ss. 10 and
18 of the Citizenship Act, 1985. These provisions are set out in
full in Appendix A to these reasons.
(1) Section 10(1) of the Citizenship
Act, 1985
[10] Pursuant to s. 10(1) of
this Act, the Minister may make a report to the Governor in Council to
the effect that a person has obtained their citizenship “under this Act” by
false representation or fraud or by knowingly concealing material
circumstances. If the Governor in Council is then satisfied that the person
obtained their citizenship in such a manner, “the person ceases to be a
citizen”.
[11] It
is settled that the expression “under this Act”, where it appears in s. 10(1)
of the Citizenship Act, 1985, must be interpreted as “under this Act,
the Citizenship Act, as enacted from time to time” (Canada (Minister
of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J.
No. 1428 (QL), at para. 113). That is, a misrepresentation under a former Citizenship
Act is caught by s. 10(1) of the Citizenship Act, 1985.
(2) Deeming
Provision of s. 10(2) of the Citizenship Act, 1985
[12] It
may be the case that a person did not directly lie or conceal information at
the time of obtaining Canadian citizenship but did so to the overseas
immigration officer who approved him for entry into Canada. This
situation is addressed in s. 10(2). Pursuant to this provision, a person is
deemed to have obtained his citizenship by fraud or by knowingly concealing
material circumstances if he was “lawfully admitted to Canada for
permanent residence by false representation or fraud or by knowingly concealing
material circumstances” and, because of that admission, subsequently obtained
his citizenship.
(3) Section 18
Notice
[13] Section
18 of the Act requires that, before the Minister makes a report to the
Governor in Council, he must give notice of his intention to do so to the
person concerned. That person may then request that the question of whether he
obtained his citizenship by false representation or fraud or by knowingly
concealing material circumstances be referred to the Federal Court. If this
Court decides in the affirmative, the Court’s decision will form the basis of
the Minister’s report.
[14] In
this proceeding, notice under s. 18 was signed by the Minister on November 13,
2003 and provided to Mr. Furman. By Notice of Request dated December 13, 2003,
Mr Furman requested that the Minister refer this case to the Federal Court.
(4) Effect of
Court’s Determination under s. 18
[15] The
Court’s determination does not, in itself, constitute a decision to revoke or
terminate the citizenship of a person. Rather, the decision of this Court
provides the Minister with a factual basis for the report and may constitute the
foundation of a decision of the Governor in Council. Only the Governor in
Council has the duty and power to decide whether to revoke citizenship. While
the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship
Act, 1985, s. 18(3)), a decision of the Governor in Council may be
judicially reviewed (see, for example, Oberlander v. Canada (Attorney
General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL)).
B.
Substantive Rights
[16] With
respect to substantive rights in relation to the acquisition of citizenship, I
must examine the legislation in force at the time citizenship was acquired. Citizenship,
in this case, was acquired in 1957. Accordingly, the two Acts that govern are
the Canadian Citizenship Act, R.S.C. 1952, c. 33, proclaimed in 1948,
(the Citizenship Act, 1948) and the Immigration Act,
R.S.C. 1952, c. 325, also proclaimed in 1948 (the Immigration Act, 1948).
(1) Section
10(1) of the Citizenship Act, 1948
[17] Section
10(1) of the Citizenship Act, 1948 set out the criteria that were
to be satisfied, in 1957, in order to be granted a certificate of citizenship.
The provision is set out in full at Appendix A. Of particular relevance to
these proceedings, Mr. Furman had to satisfy the Minister that he had been
“lawfully admitted to Canada for permanent residence” (s. 10(1)(b)) and that he
was of “good character” (s. 10(1)(d)). Obviously, there are other criteria such
as adequate knowledge of English and French and adequate knowledge of
responsibilities and privileges of Canadian citizenship; they are not at issue
in this case. In effect, the lawfulness of admission to Canada is a
condition precedent to the acquisition of Canadian citizenship.
(2) Meaning of
“lawfully admitted”
[18] To
establish what is meant by the term “lawfully admitted”, I must turn to the Immigration
Act, 1948. In s. 2(n), “landing” is defined as “the lawful admission
of an immigrant to Canada for permanent residence”.
[19] For
admission to Canada, an individual was required to undergo an examination
before an immigration officer to determine whether he “is or is not admissible
to Canada” (Immigration
Act, 1948, s. 20(1)). Section 20(2) requires that the person “shall
answer truthfully all questions put to him . . . and failure to do so . . .
shall, in itself, be sufficient ground for deportation”. Of further interest is
s. 50(f) which stipulated that every person who "knowingly makes any false
or misleading statement at an examination or inquiry under this Act or in
connection with the admission of any person to Canada or the application for
admission by any person” was guilty of an offence under the Immigration Act,
1948.
[20] In
sum, the scheme in 1957 was clear; misrepresentation during the examination for
landing was not to be condoned. A person who lied or withheld material facts
from the immigration officers before whom he appeared for examination was not
“lawfully admitted” to Canada (Canada (Minister
of Citizenship and Immigration) v. Bogutin [1998] F.C.J. No. 211
(QL) (F.C.T.D.), at para. 126) and, thus, is in breach of the Citizenship
Act, 1948.
C.
Burden and Standard of Proof
[21] The
burden of proof clearly rests with the plaintiff Minister.
[22] For
purposes of defining the appropriate standard of proof, it is important to note
that this is a civil proceeding rather than criminal.
[23] In
one of the first cases of this type (Canada (Secretary of State) v.
Luitjens (1991), 40 F.T.R. 267, [1991] F.C.J. No. 1041 (F.C.T.D.)), the
Court found that the standard of proof that the plaintiff had to meet was what
the Court called “high degree of probability”. This has been rejected in the
jurisprudence that has followed where the standard of proof has now been held
to be that of balance of probabilities Bogutin, above at para. 110; Canada
(Minister of Citizenship and Immigration) v. Obodzinsky, 2003
FC 1080, [2003] F.C.J. No. 1344 (QL) at para. 7; Canada (Minister of
Citizenship and Immigration) v. Baumgartner, 2001 FCT 970, [2001]
F.C.J. No. 1351 (QL) at para. 8; Canada (Minister of Citizenship and
Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 (QL) at
para. 13; Canada (Minister of Citizenship and Immigration) v.
Oberlander, [2000] F.C.J. No. 229 (QL) (F.C.T.D.) at para. 187; Canada (Minister
of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999]
F.C.J. No. 824 (QL) (F.C.T.D.) at para. 5; and Canada (Minister of
Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, [1999]
F.C.J. No. 90 (QL) (F.C.T.D.) at para. 38).
[24] Thus,
it is well established that, for a proceeding of this nature, the standard of
proof is the civil standard of balance of probabilities. In a case such as
this, however, where the allegations of conduct are morally blame-worthy and
have serious consequences for the defendant, the jurisprudence teaches that I
take great care in assessing the evidence (see, for example Odynsky,
above at para. 13).
[25] The
balance of probabilities standard will be met if the Court is satisfied, on the
evidence, that the existence of a fact in dispute is more probable than not. In
other words, based on the evidence before this Court, I must find that the
event or fact in dispute is not only possible but probable (Obodzinsky,
above at paras. 8-9). In this context of serious allegations and consequences
for the individual, the inherent probability or improbability of an event is
itself a matter to be taken into account (Re H (minors), [1996]
A.C. 563 (H.L.)).
IV. Historical Context
A.
Witnesses
[26] Two
witnesses presented by the Minister were particularly helpful with respect to the
historical context of these proceedings.
[27] The
first of these witnesses was Dr. Johannes Tuchel, an historian. In these
proceedings, he was qualified as an expert witness to testify with respect to
the following:
·
the
terror apparatus of the Third Reich;
·
the
history of World War II;
·
general
information about concentration camps and the concentration camp system,
including camps at Trawniki, Poniatowa, Flossenbürg, Sachsenhausen and
Mauthausen and related satellite camps;
·
the
role of Trawniki guards in the Third Reich; and
·
the
liquidation or “cleansing” of the ghettos of Warsaw and Bialystok.
[28] In
addition to Dr. Tuchel’s oral testimony, the Minister presented into evidence a
document entitled “The Deployment of SS Guardsmen (SS-Wachmänner) from Trawniki
in National Socialist Concentration Camps, with particular Emphasis on the
Flossenbürg Concentration Camp”, dated November 2005 and prepared by Dr. Tuchel
(Tuchel Report).
[29] The
second witness was Dr. Jack Terry. Dr. Terry was born March 10, 1930 in Belzyce, Poland,
about 20 kilometres from Lublin. He testified as to the conditions in
labour and concentration camps of the Third Reich and as to the role of
Ukrainian guardsmen.
[30] Dr.
Terry is a Jew. On May 8, 1943, the remaining residents of his town were
rounded up by a team consisting of an SS member named Reinhold Feix and 24
Ukrainian guards. Those
who were not fit for labour, such as older women and children, were executed
outright. Others were forced to dig their graves and sent to labour camps. Dr. Terry was
sent to Budzyn where he remained until April 1944. At that time, he was
transferred to Wieliczka, a salt mine near Krakow, where he
worked 600 metres below ground in a Nazi airplane factory. His last destination
was the Flossenbürg concentration camp where he arrived on August 4, 1944. At
this camp, he worked in a stone quarry for two weeks and, thereafter, in an
underground Messerschmitt factory. When the camp was liberated on April 23,
1945 by the American Army, it appears that Dr. Terry was the only surviving Jew
at the camp; all others were evacuated and “taken on the death march” in the
days preceding the liberation.
[31] Dr.
Terry’s direct and compelling testimony affirmed the well-known view of the
brutal treatment of inmates in concentration camps during World War II.
Further, his testimony reminds us of why persons associated with the
administration of the camps were not welcome in Canada.
B.
Concentration and Labour Camp System
of the Third Reich
(1) Overall Concentration Camp
System
[32] Dr. Tuchel provided a
robust history of the purpose and structure of the concentration camp system in
the Third Reich, and drew to the Court’s attention the distinction between the
main camp system within the expanding borders of Germany itself (the German
Reich), and a separate system located in the German-occupied region of Poland
known as the “General Government” (Generalgouvernement). The Nazi government
utilized concentration camps as a tool of control and oppression from the early
1930s onward. As early as February 1933, the second commandant of the Dachau concentration camp,
Theodor Eicke, had established “a standardized system of violence… to ensure a
maximum of systematic brutality against the inmates” (Tuchel Report at 52).
[33] In
general, there
were three types of war-time camps:
· Labour camps – Jews performed
forced labour in these camps, supporting German industry, but were not
necessarily confined to the camps. Initially, these camps were not part of the
concentration camp system. Two labour camps, located at Poniatowa and Trawniki,
in occupied Poland, are of relevance to
these proceedings.
- Concentration camps – These were camps of
incarceration. Many types of prisoners were confined to these camps,
including Jews, Poles, Russians, and Germans. By 1942, forced labour was
introduced to these camps. Many inmates died from starvation, disease, and
murder. Of particular importance to this inquiry was the concentration
camp located at Flossenbürg in Bavaria, near the Czech border.
- Extermination camps – the sole purpose of
these camps was to exterminate all Jews that arrived through their gates.
These camps are distinguished from concentration camps by their single,
genocidal purpose. Extermination camps were located in the General
Government (occupied Poland).
[34] Ghettos were a fourth
type of confinement for Jews in the area of the General Government. In this
system, Jews were restricted to a relatively small section of a city. Ghettos
served as a source of slave labour for German industries, but also as a way to
concentrate Jews and make it easier to transport them to labour, concentration
or extermination camps.
[35] In the pre-war period,
and until 1942, the objectives of the camps were to suppress political enemies and
opposition in occupied countries. In 1942, concentration camps also became
labour camps, and inmates were forced to work for the German arms industry. Dr.
Terry testified that “living conditions” was the wrong term for life in the
concentration camps; the conditions were anything but suitable for life.
Starvation was the norm and hygiene was impossible. Dr. Terry explained that
the German camp policy was “extermination through work.”
[36] From 1942 onward, the
camps continued to grow with the influx of Eastern European prisoners. The
major camps grew in size and a network of “satellite camps” sprung up; these
smaller camps were located near a major concentration camp and fell under its
administration.
[37] It is clear from the
evidence of both Dr. Tuchel and Dr. Terry that mass murder was the overall goal
of the camp system. As Dr. Tuchel testified, extermination camps had “only one
purpose, to kill people”. SS documents recovered after the war indicate the
deliberate brutality of the camp conditions; the Jewish labour was to be
“literally exhaustive… The working hours are not subject to any limitations” (Tuchel
Report at 55).
(2) Administration of the Camps
in the General Government
[38] All of the camps in Germany and German-occupied
lands fell under the responsibility of Heinrich Himmler, Reichsführer SS and
Chief of German Police and Gestapo (secret police).
[39] In the General
Government, the Head SS and Police Leader (HSSPF) had jurisdiction over the
exploitation of Jewish forced labour generally, and over the labour and
concentration camp system in that region. The General Government was divided
into several administrative districts, one of which was the Lublin district. Each district
was controlled by an SSPF (SS and Police Leader). The SSPFs directly oversaw
the camps in their regions and answered to the HSSPF and, above him, to
Heinrich Himmler.
[40] In the General
Government, between 1939 and 1941, Jews were consolidated into forced labour
groups and ghettos, and moved to a growing network of labour and concentration
camps. In late 1941, extermination camps were also developed in this region. The
General Government had been chosen as the region to carry out the genocidal
objectives of the Nazi and SS leaders. Since mass executions were proving too
difficult and too public, the “Final Solution of the Jewish question” was
determined at the Wannsee Conference on July 31, 1941: to evacuate Jews to
eastern occupied Poland, where they could all
be killed in the camps.
[41] This “Final Solution”
was carried out under the code name Operation Reinhard (“Aktion Reinhard”).
This operation saw the construction of, among others, the three extermination
camps in the Lublin region – Belzec,
Sobibor, and Treblinka – and the murder of over 1.7 million Jews. Operation
Reinhard commenced in late 1941 and continued until October 1943. After that
time, the extermination camps in the Lublin area were shut down and disguised as farms, and
a skeleton guard was left at those locations.
[42] It is important to note
that the concentration camp system throughout Germany and the occupied territories was entirely
under the supervision and control of Heinrich Himmler and therefore the SS and
German Police. In autumn 1943, administration of the camps was changed from
SSPF control to the newly-formed SS Economic and Administrative Main Office
(SS-WVHA, or “SS-Wirtschafts-Verwaltungshauptamt”), Administrative Group D. This
administrative change emphasized the growing importance of forced labour to the
Third Reich and the escalation of the genocidal policies.
[43] German Guard Units in
the camp system were called the “Totenkopfverbande” or “SS Death’s Head Units”
(and later “SS Death’s Head Battalion”) by order of Himmler himself. The SS
Death’s Head Units were specifically separated from the Armed Forces and the
Police; they were to become the core of an SS elite troop. The original German
members of this Unit were marked by “blood” tattoos, which indicated their
blood types.
(3) Camp System
in the Lublin region of the General
Government
[44] The Lublin region contained all
three types of camps, until late 1943. There were labour camps such as
Poniatowa, Budzyn, and the Trawniki labour camp (see below; this labour camp
was attached to the Trawniki Training Camp for guardsmen). There were also
concentration camps, such as the Lublin concentration camp. Finally, there were
extermination camps such as Belzec, Sobibor, and Treblinka. All of these camps
were under the supervision of the SSPF Lublin.
[45] 1942 and early-to-mid 1943
saw the evacuation or “cleansing” of Jewish ghettos, including major ghettos in
the cities of Warsaw and Bialystok. Jews were forcibly
rounded up from the ghettos and sent to one of several concentration or
extermination camps, including the Lublin concentration camp and the Treblinka
extermination camp.
[46] In September 1943, the
General Government concentration camp administration was placed under the
SS-WVHA. At this time, many people from the occupied territories were taken
from their homelands and forced to work for Germans in other parts of Europe;
those who protested or did not work hard enough were sent to the concentration
camps. This change also eliminated all labour camps; only concentration camps
and extermination camps were to exist from that point on. Accordingly, all
labour camps in the Lublin region, including
Trawniki, were converted to concentration camps and placed under the
administration of the larger Lublin concentration camp.
(4) Trawniki
Training Camp and Use of Soviet POWs
[47] I turn to a review of
the German facility that is central to these proceedings. Among the various
camps located in the General Government, a unique dual-camp was located at
Trawniki, about 35 km from the town of Lublin and close to the border with Ukraine. This location
contained a labour/concentration camp (Labour Camp Trawniki) as well as an
adjoining training camp for non-German guardsmen (SS Training Camp Trawniki). Like
the other camps in the Lublin region, (such as
Poniatowa) the Trawniki camps were at first under the supervision of the SSPF
Lublin and, as of September 1943, under the SS-WVHA organization (at which time
the labour camp became a concentration camp).
[48] Guardsmen trainees came
to Trawniki in a number of ways. Some were German volunteers. However, of
particular interest to this case, many were prisoners of war who had been
captured by the Germans.
[49] In
early 1941, the first selected Soviet prisoners of war arrived in Trawniki and
undertook several weeks of training as guardsmen. These trainees were selected
from POW camps, initially those in the districts of Cracow and Lublin
and, somewhat later, from POW camps in the Ukraine. For these prisoners
of war, the situation in POW camps was difficult; a large percentage did not
survive. For example, according to Dr. Tuchel, about 22,000 Soviet prisoners of
war interned at Poniatowa died over the 1941-1942 winter. Additionally, many
Eastern Europeans, including Ukrainians, had suffered under the Soviet regime;
this was true of former Soviet conscripts as much as anyone else. Thus, it is
understandable why these men were seen as a potential source of manpower for
the German war machine and why they would not refuse to train and serve.
[50] Documentary
evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans
exploited Soviet prisoners of war after the attack on the USSR, in 1941. On
July 25, 1941, faced with severe manpower shortages in the vast, newly
conquered Eastern European territories, Heinrich Himmler instructed SS and
Police Leaders, including SSPF Globocnik (the first commander of Trawniki
Training Camp), to establish:
. . . protective formations made up of
those population groups in the occupied territories who are friendly towards
us, as has already been done in some cases by the Operational Task Forces
(Einsatzgruppen) of the Security Police. These protective formation should be
formed primarily of Ukrainians, residents of the Baltic countries, and
Byelorussians. They should be selected from among the men who still live in
those regions, and from among non-Communist prisoners of war. [Emphasis
added.]
[51] Formation
of these non-German forces was so necessary to the German war effort that
possible Communist ties were not to be a problem except in the case of
“fanatically inclined Bolsheviks, political commissars, and other dangerous
functionaries” (according to Operational Order No. 8 issued by Reinhard
Heydrich, Chief of the SD, on July 17, 1941; see footnote 40 at page 16, Tuchel
Report). In short, the Germans were not being very discriminating about who
they chose, and the selected prisoners of war were not necessarily supportive
of the Nazi regime.
[52] The
evidence also indicates that Soviet prisoners of war did not volunteer for
service in the German units, at least not in all cases. Heydrich’s Operational
Order No. 8, for instance, established two duties for the SD units assigned to
the prisoner of war camps: (i) to select prisoners of war with “intolerable”
characteristics for execution; and (ii) to select prisoners of war for service
in the auxiliaries. Although I have no detailed information about the selection
process, I feel no hesitation inferring that the only viable choice given to
the selectees was service. Indeed, Dr. Tuchel specifically and emphatically
commented at trial that he would never refer to the Soviet prisoners of war who
joined the Trawniki Training Camp as “volunteers”.
(5) Trawniki
Processing of and Documentation for Guardsmen Trainees
[53] Upon
their arrival at Trawniki, new recruits were photographed. In the Camp office,
a personnel sheet (Personalbogen) and personnel card (Personalkarte) was kept
for each individual. Each recruit was assigned a registration number which “was
to stay with the recruit and future guard for as long as he served in Trawniki
or at a location or commando to which he was assigned from Trawniki” (Tuchel
Report at 24).
[54] Dr. Tuchel provided
evidence that this registration number was a feature of the Trawniki Training
Camp that distinguished this facility from others in the German concentration
camp system. A registration number was unique to a guardsman. No number was
ever assigned to another individual, even if a guardsman died. Once Trawniki
men were transferred out of the Trawniki camp system and into the German
concentration camp system, their registration numbers were no longer used for
identification. Using this information, Dr. Tuchel testified that he could
track an individual guardsman among camp documents such as the Transfer Lists
(which are discussed in detail below).
[55] Dr. Tuchel also
testified that the registration numbers were given out in a sequential basis
upon recruitment, beginning with the number 1 and progressing upward. About
5,000 guardsmen were trained at Trawniki. Dr. Tuchel also explained how he
could estimate when a recruit arrived at the camp. By examining the few
surviving Personalbogen and Personalkartes of Trawniki guardsmen, which
indicate their date of arrival, and by examining the registration numbers on
various transfer lists, which are also dated, Dr. Tuchel could pinpoint a time
frame in which a guardsman with a given registration number must have arrived
at the Training Camp.
[56] Every
recruit signed a service pledge (Dienstverpflichtung), which makes it evident
that the guardsmen were considered to be part of the SS. As of the spring of
1942, the pledge had the following wording:
. . . I hereby declare that I pledge to
serve in the Guard Units of the SS and Police Leader in the District of Lublin
for the duration of the war, and that I subject myself to the existing service
regulations and disciplinary regulations.
[57] Dr. Tuchel’s evidence
was that, when transferred out of the Lublin district (for example, to a concentration camp
within the German Reich itself), the identity documents of the individual
guardsman were sent with him. Thus, the Personalbogen and Personalkarte of a
guardsman sent to a camp beyond the Lublin district would not remain at Trawniki. This
becomes important in this case because no personal identification documents
have been located for Guardsman Furmantschuk, Registration No. 1538. Thus,
there is no direct evidence as to when this person arrived at Trawniki and no
photograph that could link this person to the Defendant, Mr. Furman.
(6) Role of
Guardsmen
[58] As Dr. Tuchel explained
in both his report and testimony, the Trawniki guardsmen were used for many
purposes. They acted as guards for labour, concentration, and extermination
camps; they assisted in guarding important non-military locations such as
saw-mills; and they participated in clearing Jewish ghettos. Later on, they
were mixed with German guard units and some were transferred to concentration
camps within the German Reich. Trawniki guardsmen were each issued a simple rifle
and a bayonet in order to fulfill their duties.
[59] Trawniki guardsmen began
their training by guarding the Trawniki Labour Camp. The guardsmen’s role was
to watch over the Jewish inmates, to escort them to and from their work, and to
shoot any attempted escapees. The guardsmen carried out these same duties when
sent to other labour camps, including Poniatowa.
[60] Dr. Tuchel indicated
that, according to reported accounts from the camps, the Trawniki guardsmen
also interacted with inmates by beating them, or forcing inmates to assault
each other. The guards at Poniatowa sometimes took money from Jews in return
for slight privileges, such as being allowed to communicate with relatives
through the barbed wire fence around the camp and obtain food, but this
practice varied with the strictness of the camp commander. Dr. Terry testified
that, at Flossenbürg, Ukrainian guards (who very likely were Trawniki men)
would bait inmates into attempting to escape and then shoot them; the guards
were often rewarded for killing “escapees.”
[61] Documentary evidence
canvassed by Dr. Tuchel indicates that Trawniki guardsmen were involved in the
clearing of the Warsaw and Bialystok ghettos,
and other ghettos in the Lublin area.
[62] At the Warsaw Ghetto,
between 200 and 250 Trawniki guardsmen participated in deporting Jews to the
Treblinka extermination camp in 1942 and 1943. Heinrich Himmler ordered the
complete evacuation of the Warsaw ghetto in late 1942, but the first effort to clear the
ghetto in January 1943 failed; a Jewish resistance managed to fight off the
German effort, although several thousand Jews were still deported to Treblinka
at this time. In April 1943, the Germans assembled a larger force made up of
Waffen-SS units, Security Police personnel, and three companies of Trawniki
guardsmen. They succeeded in evacuating the entire ghetto, after a full month
of fighting. Trawniki men sent to Warsaw were rolled into Warsaw Command (“Kommando
Warsaw” in German) for the duration of the operation and were active in the
evacuation. A report by SS-Brigadefuhrer Jurgen Stroop, with a title that
translates to "The
Jewish District in Warsaw No Longer Exists!" (the Stroop Report), indicates that many
of the guardsmen were wounded or killed during the operation. Trawniki guardsmen
were often deployed as “cordon personnel” at the ghetto wall, to prevent Jews
from escaping. They also conducted searches inside the ghetto, gathered Jews
for deportation, and guarded transport trains heading to concentration or
extermination camps. Other documentation indicates that the guardsmen were
repeatedly involved in acts of violence while carrying out these duties.
[63] The clearing of the Bialystok ghetto followed after Warsaw. A large force was used
at the start, including about 200 Trawniki men. The clearing encountered less
resistance than in Warsaw and was completed in 5
days. Trawniki guardsmen fulfilled the same role as before, and were involved
in several documented accounts of violence against Jews.
[64] Jews rounded up in the clearing
of these ghettos were either moved directly to extermination camps or to labour
or concentration camps. Of the Jews evacuated from Warsaw and Bialystok, very few survived to
the end of the war.
[65] Some Trawniki men also
served in the extermination camps. They performed guard service, sealed off
arriving transports, unloaded railway cars carrying Jews, and escorted Jews to
the gas chambers. Documentary evidence shows that Trawniki men participated in
gassing at Treblinka, by starting the motors that pumped gas into the death
chambers.
(7) Integration with SS Death’s
Head Units
[66] In 1943, the Trawniki
guardsmen were comprised of former Soviet POWs and of volunteers. Up to this
time, the Trawniki men had been somewhat unreliable; there had been a
significant number of desertion attempts. To solve this problem, the Lublin
SSPF suggested to Himmler that the Trawniki men be integrated into the regular
German guard units, known as the SS Death’s Head Units. Beginning in 1943,
Trawniki men were exchanged with German guardsmen from concentration camps
within Germany itself. German records
show that every effort was made to treat the Trawniki guardsmen as members of
the SS Death’s Head Guard Battalion: they were to be treated as comrades; they
received the same pay and benefits as German soldiers; and their duties were
the same as German guards.
[67] German records,
including two of the Transfer Lists that are central to this inquiry, show the
transfer of hundreds of Trawniki guardsmen to German concentration camps such
as Flossenbürg and Sachsenhausen. According to Dr. Tuchel’s report,
“approximately 870 Trawniki SS Guardsmen can be identified by name who were
transferred from Trawniki to the SS Death’s Head Guard Battalions in
concentration camps between April and November 1943” (Tuchel Report at 72). Dr.
Tuchel indicated in testimony that the Trawniki men were deliberately broken up
from their company once in Germany and distributed among the Death’s Head Units.
[68] In my view, there is
little doubt that the Trawniki guardsmen were not only members of the SS, but,
as of 1943, were also members of the SS Death’s Head Guard Units. While it
appears that they did not carry the Blood grouping tattoo that was born by the
German members, in every other regard, they were part of those Units.
V. Allegation of Change of Name
[69] With
this background, I move to consider the particular circumstances of the
Minister’s allegations. The first and fundamental question that arises is that
of Mr. Furman’s name. The Minister alleges that Mr. Furman was born
“Furmanchuk” but represented his name as “Furman” to officials after the war.
The importance of this assertion is that, if true, Mr. Furman’s failure to
disclose his true name may have constituted misrepresentation both at the time
he was considered for immigration to Canada and when he applied for
Canadian citizenship in 1957. Further, and of critical importance, unless that
Minister establishes this assertion, there is no evidence to link Mr. Furman
with the activities of a Trawniki guardsman named “Furmantschuk” in German
records.
[70] It is clear, from all the documents produced after 1945,
that Mr. Furman was consistently using the name “Furman” as of 1945 (although I
note that, from time to time, the spelling used is “Furmann”). However, what
evidence do I have regarding Mr. Furman’s name at birth?
[71] I
begin with the Agreed Statement of Facts that Mr. Furman was born March 8, 1919 in the village of Korochenki, Chudniv, Zhitomir
Region. The date and place of birth were confirmed during a limited examination
of discovery of Mr. Furman. At that time, he gave his birth place as
“Korochanki” and his parents’ names as “Leon” and “Daria”. While
he could not produce a birth certificate, Mr. Furman acknowledged that his
birth “should have been recorded at the church”.
[72] Beyond
that, I have nothing further from Mr. Furman regarding his birth, although it
was likely open to Mr. Furman to attempt to acquire documentation from the
authorities in his place of birth. He did not do so.
[73] The
Minister, on the other hand, tendered evidence provided by the Director of the
State Archives, Zhytomyr Region of Ukraine. This evidence consists
of photocopies of records for the period from January to March, 1919, from the Register
of Births of the Orthodox Parish Church of the
Resurrection. As set out by the Director and translated into English, this
Church is “located in the town of Chudniv, Zhytomyr Povit to the parish of
which the village
of Korochenki belongs”.
[74] Of
immediate interest is that the records include the town and region in Ukraine
of Mr. Furman’s birth – subject to minor spelling variations – and the period
of his birth date. On “Extract 4” of this record, the following information
appears (as translated) for a male child born March 8, 1919:
Given
name of newborn
|
Occupation,
given name, patronymic, surname and religious denomination of parents
|
Iosif
|
Peasant
from village of Korochenki:
Leontii
Iosifov[ich] Furmanchuk
And
his lawful wife
Daro[-]eya
Ko[n]drat’[ev]na, both of
Orthodox
faith
|
[75] Mr.
Furman argues that the Register does not provide evidence that Mr. Furman was
born “Furmanchuk”. I do not agree.
[76] In
my view, the Register of Births provides persuasive evidence of Mr. Furman’s
birth. Specifically, I note the following:
(a) the Register
is uncontradicted by any other evidence;
(b) the birth
date matches exactly that acknowledged by Mr. Furman;
(c) the names of
the parents also agrees with those given by Mr. Furman during discovery, albeit
with variation in spelling;
(d) Mr. Furman
during discovery stated that his place of birth was Korochenki; this matches
the information on the Register of Births;
(e) in documents
prepared before he came to Canada, Mr. Furman’s religion is identified as
“Orthodox”;
(f) Mr. Furman
acknowledged that his birth would likely be recorded in Church records;
(g) no evidence
of any other village with that name in any other location was offered; and
(h) no other name
similar to “Furman” is included in the Register for the months of January,
February or March, 1919.
[77] On
the evidence before me, it is most improbable that Mr. Furman and the newborn
male child “Iosef Furmanchuk” are two different individuals. I find, on a
balance of probabilities, that Mr. Furman was born “Iosef Furmanchuk”. At some
point he began using “Furman” as his surname. The consequences of presenting
himself as “Furman” arise at two different times; when he applied to immigrate
to Canada; and when he
applied to become a Canadian citizen. These two situations are discussed below.
VI. Background and Role of Mr. Furman in World
War II
A.
Undisputed Facts
[78] A
number of facts concerning Mr. Furman are set out in the Agreed Statement of
Facts filed by the parties and are supported by documents filed in these
proceedings. The following information is agreed or is not in dispute:
(a) Mr. Furman is an ethnic
Ukrainian, born on March 8, 1919 in the village of Korochenki, Chudniv, Zhitomir Region. This region
became part of the Soviet Union in 1921; was under the control of the Third
Reich during portions of World War II; and, is now part of Ukraine.
(b) In 1940, he
was conscripted into the Soviet army.
(c) In 1942, he
was taken prisoner by the Germans.
(d) Between 1946 and July
1949, when he came to Canada, Mr. Furman lived in Europe as a displaced person.
During this time he was one of thousands of ethnic Ukrainians who did not live
in a refugee camp; rather he was described as a “free living displaced person”
who attempted to make his living directly in the German economy.
[79] The
critical question is what Mr. Furman was doing between 1942 and 1945. Mr.
Furman claims that he was a farm worker for the relevant period. The Minister
contends that Mr. Furman was a guardsman with the German SS and was engaged,
for at least part of that time, as a concentration camp guard. It is evident
that not both of these stories can be true.
[80] I
begin by assessing Mr. Furman’s evidence.
B.
Mr. Furman’s evidence
[81] Mr.
Furman did not testify because of his health. However, he asserts that certain
documentary evidence establishes that, during the period from 1942 to 1945, he
was performing forced farm labour in Germany.
[82] One
document produced by Mr. Furman is a Declaration sworn November 27, 1947 by
Peter Sikora and Iwan Relonok. The statement is as follows:
Mr. Furman Josef, born March 8, 1919 in
Koroczany, a Ukrainian national, was brought to Germany – joining a transport under police guard
– on May 1, 1942 upon orders of the Employment Labour Office in Tschudnow. As
an Eastern labourer, the labour Office in Regensburg assigned him to do farm work for the
farmer Theo Schumacher, namely in Eltheim, where he worked for the entire
period. After the liberation by the Americans he left this place of employment
and is now living in Lower Bavaria.
[83] Although
Mr. Furman does not explain why this declaration was required, he asks that I
accept the statutory declaration as reliable and credible because it was sworn
under oath. In his view, it establishes a credible story that Mr. Furman was
brought to Germany in May 1942
and forced to provide farm labour from then until the end of the war at the
farm of Mr. Theo Schumacher.
[84] I
do not question that many foreign nationals were forced into Germany or its
occupied regions to provide farm labour during World War II. The question is
whether this document establishes that Mr. Furman was one of these persons. I
do not think that it does.
[85] I
have serious concerns with the credibility and reliability of this document,
even though it appears to have been sworn under oath. Mr. Furman offered no
explanation as to how or why this document was created in 1947 and what purpose
it served. I can only speculate, from the surrounding circumstances, that it
was prepared for the purposes of some application for social or economic
assistance or for emigration to a third country. I also have no idea of who
Peter Sikora and Iwan Relonok were and their relation to Mr. Furman. How could
these individuals come to know of Mr. Furman’s life? Why was the declaration not
sworn by Mr. Schumacher who would have had first hand knowledge of Mr. Furman?
[86] I
also note an inconsistency in the declaration. The document states that Mr.
Furman “was brought to Germany – joining a transport
under police guard – on May 1, 1942 upon orders of the Employment Labour Office
in Tschudnow”. Mr. Furman now admits that he was conscripted into the Soviet
army in 1940 and was captured by the Germans in 1942. He did not come to Germany “upon the
orders of the Employment Labour Office in Tschudnow” as set out in the
declaration. This inconsistency casts doubt on the entire document.
[87] Given
these problems, I find that the statutory declaration is not credible or
reliable evidence that Mr. Furman spent 1942 to 1945 in forced labour on the farm
of Mr. Schumacher.
[88] One
other document appears to address Mr. Furman’s activities from 1942 to 1945. It
is an Application for Assistance
made to the P.C.I.R.O. on December 5, 1947. Under the heading “Places of
residence for the last 12 years”, Mr. Furman (or someone on his behalf) entered
“Eltheim near Regensburg/Germany” for the period from some time (illegible) in
1942 to August 1945”. Later, under the heading “Employment for the last 12
years, including present”, the following is shown:
Date
|
Type
of Work
|
Employer
|
Town,
province and country
|
Reason
of change
|
35/38
|
Carpenter
|
In
common farm
|
Korozany/U.S.S.R.
|
Volunteer
|
38/[
]42
|
Driver
(tractor)
|
Motor
Factory M.T.S.
|
Korozany/U.S.S.R.
|
Deposited
to Germany
|
[
]42/ v45
|
Farm
worker
|
With
farmer Schumacher
|
Eltheim/Germany
|
Liberation
|
v45/
viii45
|
Farm
worker
|
With
farmer Schumacher
|
Eltheim/Germany
|
[ ]
to other farmer
|
viii45/
47
|
Farm
worker
|
With
farmer Reichl
|
_____/Germany
|
Living
place
|
[89] There
are two obvious inconsistencies between this document and other evidence in
these proceedings. The first arises from Mr. Furman’s admission that he was
serving in the Soviet army between 1940 and 1942. In the above noted document,
he asserts that he was a Driver (tractor), employed by Motor Factory M.T.S. in
Korozany during that period of time. The second inconsistency relates to the
post-war period. In a “Confirmation”, dated February 5, 1948 and translated
from German, Georg Reichl, (Ex. D-5) states that “farm worker Furmann Josef . .
. was employed at the farm of Georg Reichl in Ehring from March 1947 until
February 5, 1948”. In contrast, the Application for Assistance sets out that
Mr. Furman commenced working for Mr. Reichl in August 1945. Given these two
inconsistencies, it is difficult to assign any weight whatsoever to the balance
of Mr. Furman’s employment history. The Application for Assistance does not
establish Mr. Furman’s whereabouts for the period from 1942 to 1945.
[90] Mr.
Furman notes that the statements contained in the statutory declaration or the
Application for Assistance could easily have been verified at the time. As
stated in final argument, Mr. Furman “would have to be one of the dumbest
individuals to apply and provide names and locations of people in Germany. It would be
so very simple at that particular time for a screening officer to find out
whether or not in fact there was a farmer Schumacher in [Eltheim], Germany”.
The intent of this submission, as I understand it, is to establish that the
claims of being a farm worker for the relevant period are supported by credible
documents. Mr. Furman, knowing that his war time experience could be easily
checked by contacting Mr. Schumacher, would be unlikely to provide fraudulent
documents. Thus, in Mr. Furman’s view, I should infer that these documents are
credible.
[91] I
do not find this argument persuasive. Given the lack of infrastructure in Germany after World
War II, I am certain that verifying information required more than picking up a
telephone and calling Mr. Schumacher or Mr. Reichl. In addition, the numbers of
displaced persons likely made it difficult for detailed inquiries into
documentation. Individual displaced persons who were submitting and relying on
fraudulent documentation would have known these facts. Thus, in these circumstances,
submitting a fraudulent document of a non-existent farm labour position would
not have been an act of “stupidity”; rather, it would have been a calculated
risk.
[92] Finally,
I note that it was open to Mr. Furman to attempt to obtain at least some
evidence to demonstrate that Mr. Schumacher owned a farm in the region claimed.
Surely, historical land ownership records could have been checked. Other than
two references to Mr. Schumacher – neither of which I have found to be credible
or reliable – I have no evidence upon which to conclude that he existed or that
he employed Mr. Furman. There is no evidence before me that addresses the
obvious problems with Mr. Furman’s documents.
[93] In
my view, it is more probable than not that the statutory declaration and the
employment history were fabricated to provide Mr. Furman with a wartime
background as a farm worker.
[94] Thus,
I find, on a balance of probabilities, that Mr. Furman did not work on the farm
of Mr. Schumacher for the period between 1942 and the end of World War II. Of
course, this does not constitute a finding of what Mr. Furman did between 1943
and 1945; it is merely a conclusion of what he did not do. Accordingly, I will
continue by examining the evidence put forward by the Minister that allegedly
establishes Mr. Furman’s war time experiences as an SS Guardsman.
C. Guardsman
Furmantschuk
[95] The
next phase of my analysis consists of two steps. First I must consider whether
the evidence establishes that someone with the name of Furmantschuk was a
Trawniki guardsman who engaged in the activities claimed by the Minister. The
second part of the analysis (beginning at para. 121 below) involves determining
whether Mr. Furman is the same Guardsman Furmantschuk.
[96] It
should be made clear that the Minister does not assert that, during this
period, Mr. Furman carried out any particular acts of violence. Rather the
Minister’s submission relates to Mr. Furman’s alleged engagement and deployment
as a Trawniki guardsman.
[97] For
both parts of the analysis, the evidence presented by Dr. Tuchel is
particularly relevant. Dr. Tuchel testified, as described above, as to the role
of the Trawniki Training Camp and its guardsmen. Further, he provided evidence
about the important Transfer Lists and other documents that relate to Guardsman
Furmantschuk.
[98] No
personal identity documents from the Trawniki Training Camp exist for this
particular Guardsman. The key references that we have to a Guardsman
Furmantschuk are on documents known as Transfer Lists. The Transfer Lists are
photocopies of original documents being held in the Central Archives of the
Federal Security Service (FSB) of the Russian Federation, in Moscow. The
photocopies are of varying quality and, in one case, two separate copies of the
same original document have been provided.
[99] All
of these documents are similar in content and design. They are typewritten in
German, sometimes with German handwriting on some portions. Each document also
contains handwritten Cyrillic notations. The lists record the transfer of
guardsmen between "Training Camp Trawniki" and other labour camps,
concentration camps or SS formations. The documents each contain a list of
names and corresponding registration numbers, organized by rank. In some cases,
the documents also state the birth date and birth location of the guardsmen.
The documents are dated and, in most cases, signed. In Canada (Minister
of Citizenship and Immigration) v. Skomatchuk, 2006 FC 730, [2006]
F.C.J. No. 928 (QL), after hearing a motion on the admissibility of the
Transfer Lists, I determined that the Transfer Lists should be admitted as
evidence in these proceedings. As noted in that decision, there are a number of
indicia of the reliability of these documents:
- The lists were
prepared as part of the administration of the concentration camps and the
movement of guards from one location to another within the system;
- The documents
contain lists of names and other factual information; in other words, they
consist of objective information and not opinions or reports of a
subjective nature;
- The lists were
prepared by persons with no interest in these proceedings; they were not
prepared in contemplation of litigation;
- The documents were
prepared contemporaneously with the events, as stated by Dr. Tuchel;
- The lists all have
common elements, such as a uniform design, structure and purpose; they are
consistent as to form and content, with a few minor exceptions;
- Six of the seven
lists are signed by senior officers of the SS or German police, as identified
by Dr. Tuchel;
- Some of the
information contained in the lists is corroborated by other documents of
German origin that have been examined by Dr. Tuchel at the FSB Archives
and elsewhere; and
- The Transfer Lists
are consistent with 30 to 40 such lists that have been seen by Dr. Tuchel.
[100] I
admitted these documents subject to the condition that Mr. Furman could present
further evidence and argument regarding their reliability. The only objection
by Mr. Furman related to the fact that the documents had been held by Soviet
authorities since the end of the war. The suggestion is that the documents
could have been altered in some way. Mr. Furman did not present any evidence as
to how or why any such alterations would have been made. There is nothing on
the record that would indicate that the Soviet or Russian authorities changed
the typewritten German text of the Transfer Lists. Mr. Furman’s objection to
the Transfer Lists on this basis is without substance. Accordingly, I conclude
that the Transfer Lists are a reliable source of information on the existence
and movement of SS Guardsmen from the Trawniki Training Camp.
[101] In
Dr. Tuchel's expert opinion, a person named “Furmantschuk” arrived at the
Trawniki training camp on June 13, 1942, and was given the registration number
1538. Obviously, direct evidence of Mr. Furmantschuk’s arrival could have been
ascertained from reviewing his Personalbogen. However, no Personalbogen or
other direct identity document exists for Guardsman Furmantschuk. Nevertheless,
we do know that registration numbers were assigned sequentially beginning at 1
and going up to about 5,000 representing the number of persons who eventually
were trained as Trawniki guards. Dr. Tuchel, during his extensive research, had
the opportunity to review the Personalbogen of other Trawniki men, two
of which were presented into evidence. One had a registration number of 1536,
and one had a registration number of 1932 and both arrived at Trawniki on June
13, 1942. Thus, Dr. Tuchel concluded that a guardsman who was given a number
that falls between those two numbers arrived on the same day as guardsmen 1536
and 1932. Based on this evidence, I find that Josef Furmantschuk arrived at
Trawniki on June 13, 1942 with a group of other men and was assigned
Registration No. 1538.
[102] Additional
information may be gleaned from a review of the Personalbogen of Guardsmen No.
1536 and 1932. The Personalbogen of these individuals indicate that they had
served in the Red Army. Based on this evidence, Dr. Tuchel concluded that Mr.
Furmantschuk would also have come to Trawniki as a prisoner of war from the
Soviet Army.
[103] The
first Transfer List (April 1943 Transfer List) referencing Josef Furmantschuk shows that he and
other members of the 2nd Company were transferred from Trawniki to Kommando
Warsaw on April 7, 1943. At line 118 of this Transfer List, I note the
inclusion of
“F u r m a n t s c h u k, Josef” and a
registration number 1538.
[104] The
significance of the transfer date should not be lost. The brutal evacuation of
the Warsaw Ghetto is described above. Dr. Tuchel’s evidence was that the
Trawniki men on this April 1943 Transfer List were involved in evacuating the
ghetto (Tuchel Report at 35). The Stroop Report is very clear as to the
involvement of the Trawniki guardsmen at Warsaw. For
example, the report lists those guardsmen who were wounded and killed. One of
those killed was Guardsman Odartschenko whose name and registration number 1573
were listed on the same April 1943 Transfer List as that of Guardsman
Furmantschuk. In this assignment, the guardsmen were fighting, they were
collecting Jews and bringing them to collection points and to the trains and
from the trains, and they were guarding the trains, which brought the Jews of
Warsaw to the Treblinka extermination camp.
[105] The
second Transfer List (May 1943 Transfer List) provides evidence of a transfer
of guardsmen on May 17, 1943. It is a list from the SS and police leader Lublin, Trawniki
Training Camp to transfer men to the Kommando Lublin of the Trawniki Training
Camp Lublin. At number 5, in German typewriting, is “Formanziuk, Josef” with
entries of a date and place of birth shown as 8.2.19 in Korotschinki/Shitomir;
the Registration number is 1538.
[106] This
list, Dr. Tuchel testified, was created to transfer men to the Lublin Command
of the Trawniki Training Camp. It was all part of the Trawniki Training Camp
system. Lublin, Dr. Tuchel testified, is a city in eastern Poland. At that
time, there were labour camps at Lublin guarded by SS Guardsmen
from Trawniki.
[107] The
third Transfer List (August 1943 Transfer List) is a list of men transferred
from the Lublin Command of the Trawniki Training Camp to the labour camp Bialystok; it is dated
August 14, 1943. Beside number 65 is listed “F o r m a n t s c h u k, Josef
(1538)”. Dr. Tuchel testified that the document was important because you could
see from the bottom of the list that the men were not only sent to Lublin, but also
arrived at Lublin. On one side
is written “duly transferred” (as translated); on the other “duly accepted” (as
translated).
[108] Dr.
Tuchel’s testimony was that these guardsmen were sent to Bialystok to give
support to the ghetto cleansing. In late August 1943, Bialystok was one of the
last remaining ghettos in Poland. The Jews were rounded up, sent to a
collecting point, and then sent to labour extermination camps (Tuchel Report at
34-41).
[109] The
August 1943 Transfer List includes a cover letter. The letter, dated August 20,
1943, was sent with a copy of the list to the camp in Trawniki. The letter
states that Mr. Basener, head of the Lublin Command, sends a copy of the
transfer list of the men who were transferred on August 15, 1943 from the
Lublin Command to the command at labour camp Bialystok.
[110] The
final Transfer List (October 1943 Transfer List) shows a transfer of 140
Trawniki guardsmen to the concentration camp at Flossenbürg, in Bavaria, near the
Czech border, some 800 kilometres from Trawniki. Flossenbürg was one of the
major concentration camps in the German Reich. Inmates were forced to work as
slave labour for the Nazis, in large stone quarries or many metres underground
where armaments were being assembled . The document is dated October 1, 1943
and records, at number 61 on the list, “F u r m a n t s c h u k, Nosef” with a
date and place of birth of 8.2.19 in “Korotsch __ki”. The registration number
is listed as 1538. Although the print is faint and difficult to read, I am
satisfied that this information is a correct reading of the document. Further,
I have the confirmation of Dr Tuchel, who saw the original in the FSB Archives,
that the registration number is 1538.
[111] This
transportation appears to have been part of the Nazi decision to mix ethnic
guards with German units in an effort to decrease desertion by the ethnic
guards, as discussed above beginning at para. 66. At Flossenbürg, the Trawniki
guards, Dr. Tuchel testified, were mixed with the Reich concentration camp
guards. They were used as guards to guard prisoners in the camp while at work
or on labour details, returning during roll call around the camp and trying to
prevent their escapes.
[112] There
is clear evidence that this group of guardsmen arrived at the camp at Flossenbürg.
A Certificate, signed by the chief of the guards in Flossenbürg, SS Hauptsturmführer
Ludwick Budenziek, shows confirmation of receipt of 140 Trawniki men under the
command of SS Oberscharführer Majewski. The transport arrived on October 7,
1943.
[113] The
next document is “Weapon and Inventory Book No. 1, Kommandantur, Concentration
Camp Flossenbürg” from the year 1944. The weapons inventory book consists of a
list of weapons and sets out to whom they were issued. In this book, Dr. Tuchel
identified the names of 135 out of the 140 Trawniki guardsmen included in the
October Transfer List. The fourth page lists bayonets; on this page can be seen
the name “F u r m a n t s c h u k”, as a part of a guard formation. This
guardsman received a bayonet on October 8, 1943; as translated, this record
states that "Furmantschuk received a bayonet on October 8, 1943." At
page 51 of the inventory book, there is reference to “T u r m a n t s c h u k”
holding a rifle and a bayonet as of April 1, 1944. Although the name that
appears is “Turmantschuk”, this appears to be no more than a typographical
error; the “Furmantschuk” referred to at page 4 of the book and the
“Turmantschuk” on page 51 are the same person. Dr. Tuchel testified that there
were no other names in the book which sounded in any way like Furmantschuk or
Turmantschuk or any other spelling.
[114] In
summary, reading this inventory book together with the Transfer Lists and
related corroborating documents, this evidence demonstrates that a number of
men, including Furmantschuk, Registration No. 1538, left Trawniki on October 1,
1943 and arrived at Flossenbürg concentration camp on October 7, 1943.
Guardsman Furmantschuk was equipped with a bayonet on October 8, 1943 and, as
of April 1, 1944, was in possession of both a rifle and bayonet.
[115] While
each of the Transfer Lists contained the guardsman’s registration number, no
such number is referred to in the weapons inventory. This was explained, in a
very logical way, by Dr. Tuchel. He stated that there was no reference to the
Trawniki registration number in the weapons book because these guardsmen were
now part of concentration camp guard system in Germany. Only the
Trawniki guard administration in the General Government used registration
numbers.
[116] Dr.
Tuchel also provided a cogent explanation for the almost total absence of
personal identification documents for Guardsman Furmantschuk. He testified that
he has never seen a Personalbogen from the concentration camp Flossenbürg. In
the face of pending defeat, the Nazi regime made every effort to destroy
records that would implicate concentration camp soldiers and guards. As one of
the last camps liberated by the Allies (the Americans, in this case), those
Nazis responsible for the Flossenbürg camp had sufficient time to destroy
almost all records; very few survived.
[117] One internal
inconsistency in these documents is the spelling of the name of the guardsman
that the Minister alleges is Mr. Furman. References in the
Transfer Lists and Weapons Inventory show the following:
Reference
|
Name
Shown
|
Reg.
No.
|
Birth
Date
|
Birth
Place
|
April
1943 Transfer List
|
Josef
Furmantschuk
|
1538
|
-
|
-
|
May
1943 Transfer List
|
Josef
Furmanziuk
|
1538
|
8.2.19
|
Korotschinki/
Schitomir
|
August
1943 Transfer List
|
Josef
Formantschuk
|
1538
|
-
|
-
|
October
1943 Transfer List
|
Nosef
Furmantschuk
|
1538
|
8.2.19
|
Korotsch
- - ki …
|
Weapons
Inventory
|
Furmantschuk
and Turmantschuk
|
-
|
-
|
-
|
[118] When questioned about
the variation in spellings, Dr. Tuchel explained that the Trawniki officers
were dealing with people whose names came from one of four different languages
- German, Russian, Polish and Ukrainian – and two different alphabets -
Cyrillic and Roman. Dr. Tuchel testified that there is more than one way to
translate names from one language or alphabet to another and that no particular
method is wrong or right. In his estimation, the spelling differences are not
surprising, since the lists were prepared by Germans dealing with guardsmen who
may not have spoken the German language. It was his testimony that the
registration number system existed in the Trawniki camp system for this
particular reason; it allowed German officers and officials to accurately track
the Trawniki men without having to worry about the variation in spelling. Dr.
Tuchel also testified that the appearance of birth dates and locations on the
later Transfer Lists correspond with the movement of the guards from the
Trawniki camp system to the German system. In the German system, guards’
identities were verified by their birth date and birthplace, not by
identification numbers. The registration numbers assigned at Trawniki would
have had no meaning to officers outside of that system.
[119] In this context, several
other consistent factors compensate for the spelling variations. First, the
spellings themselves are phonetically similar. Second, Dr. Tuchel testified
that, in his review of all the transfer lists relating to the Trawniki Training
Camp, he did not encounter another surname that was similar to Furmantschuk. Third,
and most importantly, the registration number 1538 is consistent among the
Transfer Lists. Given the importance that the German officers in the Lublin region put on the
registration number, and Dr. Tuchel’s testimony that no registration number was
ever assigned to more than one guardsman, I can conclude that the names Josef
Furmantschuk, Josef Formanziuk, and Nosef Furmantschuk on the four lists refer
to one person.
[120] Beyond
the three transfer lists and the weapons inventory, there are no further
explicit references to Guardsman Furmantschuk in the historical documents.
Thus, I am unable to reach any clear conclusions as to what this person did
between April 1, 1944 and the end of World War II. Nevertheless, with the
meticulous assistance of Dr. Tuchel and upon my careful review of the evidence,
I am satisfied that, on a balance of probabilities, there was a Guardsman Josef
Furmantschuk who:
(a) was a Soviet
prisoner of war;
(b) trained as an
SS Guardsman at the SS Trawniki Training Camp, commencing in April 1942;
(c) was deployed
as a guardsman to the Warsaw Ghetto in April 1943 and to the Bialystok Ghetto
in August 1943;
(d) was
integrated into the SS
Death’s Head Guard Units as of 1943; and
(e) was a
concentration camp guard in the concentration camp at Flossenbürg, Germany from October
7, 1943 to at least April 1, 1944.
D.
Identity of Guardsman Furmanchuk
[121] My
finding that there was a Guardsman Furmantschuk who trained at the SS Trawniki
Training Camp and served as a guard during the Warsaw and Bialystok Ghetto
cleansings and as a guard at Flossenbürg concentration camp does not dispose of
this inquiry. The next question is whether this is the same individual who is
now the Defendant in these proceedings. I have determined that Mr. Furman was
born Iosef Furmanchuk. Is this the same person as Guardsman Furmantschuk who was
assigned Registration No. 1538?
[122] There
are a number of facts that support a conclusion that Mr. Furman was Guardsman
Furmantschuk, Registration No. 1538.
[123] The
first and most obvious link is the name. The person born “Iosef Furmanchuk” shares
a name that it almost identical with Guardsman Josef Furmanstchuk. As discussed
above, this spelling variation is of little import.
[124] The
second area of close correlation is in the place of birth. In the May 1943 and
October 1943 Transfer Lists, we have two references to a place of birth of
“Korotschinki/ Schitomir” and “Korotsch - - ki …”. In the agreed statement of
facts, Mr. Furman’s place of birth is given “Korochenki, Chudniv, Zhitomir”. Once again, the
spelling variations are minor and likely related to translation from Cyrillic
to Roman writing.
[125] Next, we can see a
correlation between the backgrounds of Mr. Furman and Guardsman Furmantschuk in
1942. On
Mr. Furman’s admission, he was a Soviet prisoner of war captured by the Germans
in 1942. Guardsman Furmantschuk was almost certainly a Soviet prisoner of war.
This Guardsman entered the Trawniki Training Camp on June 13, 1942 at the same
time as a large number of recruits who had been prisoners of war.
[126] I also have considered the plausibility of a Soviet prisoner of war,
such as Mr. Furman, becoming an SS Guardsman. As discussed above, beginning at
para. 49, the German authorities, by 1941, were actively recruiting Soviet
prisoners of war to serve as guards. In my view, it is very plausible that Mr.
Furman, a Soviet prisoner of war, would serve as a guard for the German SS.
[127] To
this point, the evidence is compelling that Mr. Furman and Guardsman
Furmantschuk are one and the same person. However, there is one further
evidentiary issue that must be addressed – the date of birth. Mr. Furman has
consistently stated his date of birth as March 8, 1919. For Guardsman
Furmantschuk, a birth date of February 8, 1919 is set out on two different
Transfer Lists.
[128] I
am not persuaded that this one month difference in date is material. I
acknowledge that it cannot be readily explained. However, the year of 1919 and
8th day of the month do match the known birth date of Mr. Furman.
Further, the Church records for Korochenki (referred to above at para. 74) do
not list anyone with a similar name born on February 8, 1919. In light of this
and, more importantly, in view of the other evidence linking Mr. Furman to
Guardsman Furmantschuk, I conclude that is more likely than not that the birth
date of February 8, 1919 set out in the two Transfer Lists was entered in
error.
E.
Conclusion
[129] In
conclusion on the issue of Mr. Furman’s activities during World War II, I am
not persuaded that Mr. Furman was a farm worker in Germany for the period 1942
to 1945. I find, on a balance of probabilities, that Mr. Furman and Guardsman
Furmantschuk are one and the same. That is, Mr. Furman was an SS Guardsman who:
(a) was a Soviet
prisoner of war;
(b) trained as an
SS Guardsman at the Trawniki Training Camp, commencing in April 1942;
(c) was deployed
as a guard to the Warsaw Ghetto in April 1943 and to the Bialystok Ghetto in
August 1943;
(d) was
integrated into the SS
Death’s Head Units as of 1943; and
(e) was a
concentration camp guard in the concentration camp at Flossenbürg, Germany from October
7, 1943 to at least April 1, 1944.
VII. Immigration of Mr. Furman to Canada
[130] The
path taken by Mr. Furman in his journey from post-war Germany to Canada is of
critical concern to these proceedings. To assist the Court, the Minister filed
1834 documents, consisting of documents and communications at every level of
Government. These included: Cabinet Directives; Orders-in-Council; Minutes of
the Security Panel (a specially formed interdepartmental advisory council to
Cabinet, created in 1946); internal communications within, from and to the
relevant government departments; and, memoranda and other communications to and
from the RCMP administration and officers in the field. In the following
sections of these reasons, I refer to only a few of these documents to
illustrate the points being made or to support the evidence of Dr. Avery.
[131] The
Minister also presented Dr. Donald Avery, an historian, to speak to immigration
policy and practices in Canada. He was qualified as an expert in the
following areas:
- pre-World War II
and post-war immigration policies, and regulations and Orders in Council
affecting those policies;
- Canada's
post-war immigration policy systems and its implementation;
- the immigration
selection process, including the role of the Royal Canadian Mounted Police
(RCMP) in security clearing and screening prior to, during and after World
War II; and
- the interaction
between Canada and
European refugee organizations, including the United Nations Relief and
Rehabilitation Administration. (UNRRA), the Intergovernmental Committee on
Refugees, the Preparatory Commission for the International Refugee
Organization, and the International Refugee Organization (IRO).
[132] Dr.
Avery prepared a report entitled “A Study of Canadian Immigration Policy and
Security Screening, 1945-1956: A Background Report Prepared for the Crimes
Against Humanity and War Crimes Section, Department of Justice (Josef Furman
Case)”, dated March 2006 (the Avery Report). This report was filed as an
exhibit in these proceedings.
[133] Mr.
Furman did not dispute any of Dr. Avery’s testimony; the words of his counsel
were clear and unequivocal on that point when he stated, “I am going to ask
that you accept his evidence at the end of the day without reservation” (emphasis
added). Mr. Furman presented no evidence or witnesses to speak to immigration
policy or practices.
[134] I
have concluded that Mr. Furman, on a balance of probabilities, was a
concentration camp guard. The Minister argues that this fact alone would have
made Mr. Furman inadmissible to Canada in 1949. In brief, the
Minister’s submissions are that SS concentration camp guards were an absolute
prohibited class. According to Dr. Avery’s evidence, such persons were
considered the most “odious” type of person with respect to an examination of
their war time activities. Between 1945 and 1955, the Minister asserts that
there was an absolute prohibition on their entry into Canada, with no
discretion as to whether or not an RCMP officer could consider them to be
admissible to the country based on coercion, on compassionate grounds or on the
fact that they may have been of lower rank. Accordingly, the Minister’s
position is that Mr. Furman had to have misrepresented his World War II
activities from immigration officials in order to gain entry to Canada in 1949.
[135] There
are a number of subsidiary issues involved in this crucial determination:
- How had Canada’s
immigration policy evolved to the point of time in question?
- In 1949, in Germany, would
Mr. Furman have been the subject of a security screening by an RCMP
Officer?
- In 1949, was
Canada’s policy one that excluded concentration camp guards from admission
to Canada?
- In 1949, in Germany, did
Canadian security officials follow the policy of exclusion of
concentration camp guards?
- In 1949, in Germany, would
Mr. Furman have been asked about his wartime activities?
A.
Mr. Furman in post-war Germany
[136] From
the Agreed Statement of Facts and from corroborating documentary evidence, we
know that, following the end of World War II, Mr. Furman was living in the
Regensberg District of Germany. As described by Dr. Avery in his Report at
25-27, he would have been one of two to three million Ukrainians displaced
during the war. The United Nations recognized these persons as “Displaced
Persons”. By 1946, when the United States and the United Kingdom
refused further cooperation with the USSR on forced
repatriations, there were about 250,000 Ukrainian displaced persons remaining
in Austria and Germany. About two-thirds of these Ukrainians were
living in UNRRA camps, primarily those located in the United States military
zone of Bavaria. The others – “free living DPs” – were directly involved in the
German or Austrian economies. One survey carried out in 1948 showed that there
were 44,097 Ukrainians residing in 49 camps in the American zone and 11,165 in
private dwellings. Mr. Furman was a “free living DP”, meaning, as I understand
it, that he did not live in a camp or receive any significant financial assistance
from UNNRA or its successor organization, the IRO.
[137] In
very simple terms, the goal of the UNRRA and the IRO was to find homes for all
of the displaced persons. Between 1947 and 1951, Canada accepted
over 30,000 Ukrainian displaced persons and refugees. Most were drawn from the
UNRRA/IRO operated camps. For all Ukrainians hoping to come to Canada, including
those living outside the camps, the first step was to obtain IRO approval. Dr.
Avery testified that:
. . . if you want to immigrate, you have
to go through the IRO system. You have to have a letter from the Commandant,
the closest camp to you. It was mandatory. You had to go through the IRO
eligibility process. Even though you weren’t in the camp, you had to get an IRO
permit or identity card you would have to be screened.
[138] As
evidenced by a stamp on his IRO “Certificate of Identity for the purpose of
immigration to Canada”, Mr. Furman was approved by the IRO for immigration to Canada on June 27,
1949.
[139] To
obtain authorization to come to Canada, Mr. Furman obviously
must also have gone through some process related to Canadian immigration
officials. The question that is important to these proceedings is what that
process and its possible outcomes would have been. For example, did the
obtaining of an IRO Identity Certificate obviate the need for Canadian security
screening?
B.
Evolution of Canada’s Immigration Policy
[140] As
evidenced by a number of documents provided by the Minister and referred to by
Dr. Avery, Canada’s policy on
immigration prior to World War II was simple. Beginning in 1931, it was in
effect a policy of exclusion. Only a very narrow class of foreign nationals
were permitted to come to Canada (Order-in-Council P.C. 695, March 21,
1931).
[141] The
end of World War II brought about changed circumstances. Canada was called
upon to accept some of the displaced persons and, beginning in 1946, responded
to that need. A review of the gradual revision to Canada’s policy
demonstrates, however, that the relaxation of the policy of exclusion was
carried out only in a tightly controlled fashion. One early example of the
opening up of admissibility involved family members of Canadians under the
“Close Relative Scheme”. Another was the “Bulk Labour Scheme” intended to bring
persons into Canada to fill
labour shortages.
[142] Thus,
I can say, with confidence, that the situation in 1949 was one of controlled
admissibility of displaced persons. Only after agreement, at the highest levels
of Government, were particular classes of persons considered for immigration to
Canada. Throughout
this gradual opening of Canada’s borders, two themes are consistent and
unchanging. The first is that the RCMP officers in the field were responsible
for security screening of displaced persons and were carrying out this function
through individual screening interviews. The second is that certain classes of
persons were not to be admitted to Canada. I will proceed to
consider each of these.
C.
Role of RCMP
[143] The
role of the RCMP in the screening of Mr. Furman must be determined. I did not
have the benefit of hearing testimony from an RCMP Officer who interviewed Mr.
Furman or other immigrants in Germany in 1949. Mr. Furman
argues that, absent such direct evidence, the Minister has failed to meet its
evidentiary burden. The problem with this assertion is that Mr. Furman ignores
the documentary evidence from which inferences may be drawn. When supported by
clear and compelling evidence, it may be possible to determine, on a balance of
probabilities, what screening procedure was followed for Mr. Furman.
[144] Dr.
Avery testified that, after the war, the opening up of immigration was always
subject to the proviso that only those granted a clearance from the RCMP would
be eligible for landing to Canada. This is evidenced by a Memorandum to
Cabinet, dated October 15, 1945, from J. Allison Glen, Minister of the
Department of Mines and Resources. RCMP documents and reports indicate that
they took this role extremely seriously, with an insistence on rigorous
screening that eventually raised the ire of the IRO, for not accepting its own
security clearances, and the Immigration Branch of the Department of Mines and
Resources, who chafed at the inefficiency of the RCMP.
[145] Throughout
the documents, the continued role of the RCMP in conducting the required
security screening was never in doubt (for example, see the Confidential
Memorandum dated December 27, 1946, from Assistant Commissioner Nicholson of
the RCMP to S/Sgt W.W. Hinton, Canada House, London; and Cabinet Directive,
Circular No. 14, “Rejection of Immigrants on Security Grounds”, October 28,
1949). Dr. Avery testified that there was never any assumption that the
Canadian Government was going to permit any kind of international organization
to ultimately carry out its screening responsibilities.
[146] There
is no evidence whatsoever that Canadian immigration officials relied on the
security screening of displaced persons carried out by the IRO. Indeed, the
testimony of Dr. Avery was that Canadian officials were concerned about the
prevalence of fraudulent IRO documents. Support for this statement is seen in a
report dated March 30, 1948 entitled “Security Screening of Prospective
Immigrants”. This report, prepared by the RCMP, was sent under a cover
memorandum to members of the Security Panel and, inter alia, referred to
problems with IRO documents. Again on May 10, 1948, a comment was made by RCMP
Commissioner Wood in a memorandum to Mr. H.L. Keenleyside, Deputy Minister,
Immigration Branch, Department of Mines and Resources:
I think the efforts of our Overseas
personnel to check as fully as possible the backgrounds of applicants is
perhaps best exemplified by recent reports which we have had from our men in
Europe. These indicate that the Canadian Security Officers are unpopular with
the P.C.I.R.O. and with the D.P.’s generally due to the fact that they refuse
to accept the recommendations of the P.C.I.R.O. without full investigation made
by themselves.
[147] The
RCMP screening system was not without its problems or controversy. It was
plagued with backlogs, although mostly at the London office; the
situation in the continental displaced person camps was, by 1949,
“satisfactory” (Immigration Branch report titled “Overseas Commissioner:
Security”, dated June 20, 1949). As early as January 1947, as the screening
system was just being implemented, it was apparent that the RCMP lacked the
infrastructure and manpower in Europe to screen the large number of expected
displaced persons. It was decided at that time that screening could be waived
for certain near relative immigrants from friendly Western European countries,
but would remain mandatory for all others and especially for displaced persons
coming from former enemy territory (Germany, Austria, and Italy) (See
Memorandum from Director Joliffe to Minister J.A. Glen, dated January 27, 1947;
and Memorandum from Inspector Parsons to the D.C.I, dated January 23, 1947).
[148] With
respect to the practice of RCMP Officers, we know, from a number of documents,
that the policy schemes were communicated to the officers in the field and
implemented. For example, on April 10, 1947, Inspector Parsons sent detailed
instructions to Sgt. Hinton in London, who at that time oversaw the entire
security screening system in Europe. Hinton was reminded that “immigrants
residing in Germany, Austria, and Italy, previously
enemy territory” would have their applications for immigration withheld,
“pending a clearance from this Force.”
[149] Reports
from the field in that same year indicate that RCMP Security Officers were
having a difficult time fulfilling their role. One reason was the time
consuming nature of the work, but another reason was the lack of background
documentation available for displaced persons. Sgt. Murray’s correspondence
indicates that, because of the lack of reliable records, oral interviews were
viewed as extremely important. He stated in a March 12, 1947 report:
…[Sgt.] Syron and I can carry on with the
screening of all persons on approved lists as they arrive in the camps. There
are so few records available to check against these people so I have been
interviewing everyone on the list and that to my mind is the only way to screen
them. [Emphasis added.]
[150] A
very unequivocal statement of the role of the RCMP is found in a report dated
March 30, 1948 entitled “Security Screening of Prospective Immigrants”. This
report, prepared by the RCMP, was sent under a cover memorandum to members of
the Security Panel. This report sets out a history of security screening to
that date. This report makes it clear that, while some exceptions applied, all
“displaced persons were being examined verbally in their camps”. The report
also sets out that “[a]cceptance or rejection by the security investigator is
final”.
[151] Some
further reports from the summer of 1949 – the same time that Mr. Furman
immigrated to Canada – indicate that mandatory screening was still the rule in Germany. The June
20, 1949 report from the Immigration Branch, referenced above at para. 147, stated
that “[p]roposed immigrants in displaced persons’ camps are screened by the
security officers attached to our inspectional teams.” In a memorandum to the
Minister, dated July 7, 1949, Commissioner Wood wrote that:
In Germany our men screening D.P’s actually
interview the individual. They get some information from Intelligence Agencies
but have to depend a great deal on their personal interview. If they find no
grounds for rejection, they let the man come along.
[152] In
sum, the evidence is consistent and uncontested. As of 1949, each displaced
person who applied to come from Germany to Canada underwent a
security screening by an RCMP Officer. While I would accept that a few
individuals may have slipped through without an interview, such exceptions
would likely be rare. Accordingly, I find that it is more probable than not
(indeed, almost certain) that Mr. Furman was interviewed and screened by an
RCMP Officer.
D.
RCMP Security Screening Proceedure
[153] I
continue by considering what questions would have been asked of Mr. Furman by
the RCMP Officer in Germany.
[154] When
Dr. Avery was asked whether there was any question in his mind whether during
the security process, a person would have been asked about his activities
during the war, his response was the following:
The guidelines were such that it would be
almost inconceivable that those questions about war time activity would not
have been asked. Because we don't have a complete record of all of those
interviews, as a historian, I can't say 100 per cent, but it would be highly
unlikely, extremely unlikely.
[155] This response is
consistent with a number of the filed documents. One example is contained in a
memorandum dated May 10, 1948, from Commissioner Wood to the Deputy Minister,
Immigration Branch, Department of Mines and Resources. In that document,
Commissioner Woods states the following:
We
are interested mainly in obtaining a satisfactory answer to two questions:
first, what were the applicant’s sympathies and activities during the late war,
and second, is he sympathetic to Communism or any other form of subversive
influence opposed to our democratic way of life.
[156] Similarly,
a memorandum from Deputy Minister Keenleyside to the Cabinet Committee on
Immigration Policy, dated September 26, 1947, dealt extensively with the
problem of potential immigrants who had served in the armies of enemy nations
during the war. Mr. Keenleyside suggested a number of security guidelines,
including the following:
… (d) that, regarding persons other than
enemy aliens now seeking admission, the fact of having served in the armed
forces of their own country during the war shall not prevent their admission
unless they are recorded on the official list of war criminals and are known to
have violated the international rules of warfare;
(e) that, regarding persons of neutral or
allied countries now seeking admission, the fact of having served in the armed
forces of His Majesty’s enemies during the war shall debar them unless they can
establish that such service was furnished under physical compulsion…
These suggestions were accepted by Cabinet
on October 7th, 1947.
[157] The
documents discussed above indicate that a crucial part of security screening
was examining a potential immigrant’s activities during the war. It is
difficult if not impossible to conceive of how a Security Officer could discern
an immigrant’s potential security risk (or lack thereof) without inquiring
about the recent years of his life. I cannot but conclude that, during the
interview, the RCMP Officer would inquire directly about the displaced person’s
whereabouts and activities during the war.
E.
Grounds for Rejection
[158] From
the inception of the overseas screening system in early 1947, RCMP Security
Officers received a mixture of verbal and written instructions from
headquarters, in combination with occasional guidelines issued by Cabinet or
through Orders-in-Council. Although immigration policy evolved continuously
after the war, it appears that the security grounds for rejection did not
undergo any significant change between 1947 and 1950. An exact determination of
those grounds has been difficult, because they were rarely recorded in written
form, except in the most general terms. This practice reflected the strong
concerns of the RCMP that the grounds for rejection should not be known to
potential immigrants. The RCMP were opposed to informing rejected immigrants
that they had been screened out on security grounds and they long resisted
distributing a list to the Immigration Branch (see for example a memorandum by
RCMP Assistant Commissioner Nicholson to the RCMP Special Branch, dated July
22, 1948).
[159] However,
at least one written list of rejection criteria was prepared by RCMP
Headquarters, in consultation with the Immigration Branch, and sent to officers
in Europe. Titled “Screening of Applicants for Admission to Canada”, and dated
Nov. 20, 1948, the list included the following “Prohibited Groups” that:
…if disclosed during interrogation or
investigation, will be considered as rendering the subject unsuitable for
admission:
[…]
(b) Member of SS or German Wehrmacht. Found
to bear mark of SS Blood Group (NON Germans).
(c) Member of Nazi Party.
[…]
(h) Evasive and untruthful under
interrogation.
(i) Failure to produce recognizable and
acceptable documents at the time of entry and residence in Germany.
(j) False presentation; use of false or
fictitious name.
(k) Collaborators presently residing in
previously occupied territory.
[160] During
preparation of the list, Inspector Parsons commented on the inclusion of the
“collaborators” group, writing “this type of person would appear to be
definitely undesirable as an immigrant and we feel should be included” (Letter
to Major Wright, Sept. 23, 1948).
[161] In
the notes from an “Informal Departmental Meeting on Immigration Matters” on
February 6, 1946, “Collaborating with the enemy during the war of 1939-1945” is
included as “evidence of an unsatisfactory security back ground”. The Notes
continued to state that the list of exclusions was not final or exhaustive.
[162] Overall,
the objective was to deny admission to any person who, “from their known
history and background, would be unlikely to adapt themselves to the Canadian
way of life and our system of Democratic government”. These specific words were
contained in “Orders for Personnel Employed Abroad on Visa Control Duties”,
sent from S.T. Wood, Commissioner, to S/Sergeant Hinton on October 23, 1946.
These Orders once again confirmed the role of the RCMP screening officer in
assessing admissibility.
[163] An
awareness of the role of concentration camp guards arose during the development
of Canada’s postwar
security guidelines. One of the first direct references in the documentary
evidence is contained in a Paper entitled “The Nazi Party, its Formation and
Affiliated Organizations”. This paper was prepared by the Criminal
Investigations Section of the RCMP and provided to A.L. Jolliffe, Director of
Immigration of the Department of Mines & Resources, and forwarded to him
under cover letter dated July 25, 1946. In that paper, the SS
Totenkopf-Verbande (Death’s Head Unit) was described in the following terms:
The SS Totenkopf-Verbande was a special
division of the Waffen SS whose duties were confined to the guarding of concentration
camps and as police troops in the Occupied
Territories. Members of this organization were of a particularly loathsome and
brutal type.
[164] Canadian
policy was strongly influenced from the beginning by Allied Control Authority
Coordinating Committee Directive No. 38, dated October 14, 1946 and entitled
“Arrest and Punishment of War Criminals, Nazis and Militarists and the
Internment, Control and Surveillance of Potentially Dangerous Germans”. The
Allied Control Authority was the military governing body representing the
Allied Powers who controlled Germany after the war. Their
directives served as policies and regulations for, among other things,
treatment of refugees and displaced persons under the UNRRA and IRO programs. Under
Directive No. 38, war criminals and collaborators were divided into several
categories, including: Major Offenders; Offenders: Militarists; Profiteers; and
others. Of most significance, the Major Offender category included “ [a]nyone
who, in any form whatever, participated in killings, tortures, or other
cruelties in a concentration camp, a labour camp, or a medical institution or
asylum;” or “[a]nyone who, for personal profit or advantage, actively
collaborated with the Gestapo, SD, SS, or similar organizations…”.
[165] There
are numerous references to Directive No. 38 in the Canadian immigration
documents, showing a consistent concern among Canadian government members and
RCMP officials for Nazi war criminals and collaborators. Major Offenders, as
defined by Directive No. 38, were not to be admitted to Canada. Concentration
camp guards and collaborators were Major Offenders.
[166] Having
reviewed the documentary evidence, I am persuaded that it was unlikely that
anyone – either in a policy role or as an RCMP Officer in the field – would
consider a concentration camp guard to be admissible to Canada. As stated by
Dr. Avery,
Certainly anyone who was connected with a
Nazi organization and especially a concentration camp guard would have been
seen as completely inimical to the Canadian way of life and to Canada’s system of democratic
government.
[167] Correspondence
and documents of that time indicate that, not only was this the policy of
Canadian officials, but this policy had been communicated to and was being
carried out by the RCMP Officers in the field.
F. Conclusion
[168] In conclusion, when the
documentary evidence, the Avery Report and Dr. Avery’s oral testimony are
considered as a whole, I am satisfied, to a high degree of probability, that
the following captures the elements of security screening of a person such as
Mr. Furman, in 1949:
- Both Government policy and RCMP practice
were that an RCMP Officer, in the field, was to conduct a security screening
of all displaced persons;
- In Germany, the RCMP did not rely on the IRO
screening, but conducted their own screening which included personal
interviews;
- The RCMP Officer asked questions with the
goal of verifying the applicant’s wartime activities; and
- Being an SS concentration camp guard would
have been grounds for rejection.
[169] It is worth noting that
these findings accord with those of Justice McKay, in Odynsky, above
at para. 141. In that case – also a citizenship revocation proceeding –
Justice McKay was dealing with a similar fact situation. That is, Mr. Odynsky,
who also arrived in Canada from Germany in 1949, was alleged to
be a concentration camp guard. With respect to screening procedures, Justice
McKay concluded as follows:
In
my view, there is no doubt that at the highest level of government, Cabinet
intended that security screening of prospective immigrants be undertaken with
respect to those seeking to come to Canada from Germany, including displaced
persons, in the years 1945 to 1950, and indeed thereafter. The intention was
implemented in the field by arrangements made between immigration authorities
and the R.C.M.P. under the direction of Cabinet. On the evidence from former
immigration officers, Messrs. Martineau, St. Vincent, and Kaarsberg,
arrangements were in place for security screening of applicants for immigration
in Germany in 1949. Those required an interview by
an R.C.M.P. officer, whose concern was security screening, as the first step in
dealing with an applicant for immigration, including a displaced person.
While I did not have the
benefit of the testimony of former immigration officers, as did Justice McKay,
the documentary evidence before me on the screening policy and procedures is
uncontested and persuasive and leads me to the same conclusions.
VIII. Screening of Mr. Furman
[170] Having
concluded that it is more likely than not that Mr. Furman was subjected to a
security screening conducted by a member of the RCMP and that the RCMP Officer
would have questioned him about his wartime activities, the next question is
what Mr. Furman told the Officer. Did he tell the RCMP Officer that he was born
“Iosef Furmanchuk”, that he was a Soviet prisoner of war and that he was an SS
Guardsman? Or, did he tell the Officer that he remained in Ukraine until 1942
after which he was a farm labourer in the Regensberg District of Germany? No
notes exist to directly answer this question. However, logical inferences can
be drawn from the evidence before me.
[171] I
first refer to three documents that were undisputedly prepared shortly after
World War II and which set out Mr. Furman’s explanation of his wartime
activities. These are:
- the Statutory
Declaration of Peter Sikora and Iwan Relonok sworn November 27, 1947,
referred to above at 82;
- the Application for
Assistance made to the P.C.I.R.O. on December 5, 1947;
- the A.E.F. D.P.
Registration Record for “Josyf Furman”, which, although undated, was a
document prepared and used for Mr. Furman’s application to come to Canada.
[172] Each
of these documents uses the name “Furman”. Both the Statutory Declaration and
the Application for Assistance describe Mr. Furman’s 1942 to 1945 time as being
spent farming on the land of Mr. Schumacher. I have concluded that this story
was likely fabricated. In the final document in this group, Box 18 poses the
question “Do you claim to be a prisoner of war?” The response entered is “No”.
Mr. Furman now admits that he was a prisoner of war. It is highly unlikely
that, having given this background for purposes of these documents, Mr. Furman
would have presented a different story of his wartime experiences to any
official who interviewed him for immigration to Canada. Had he
changed his story at that point – after relying on the documents referred to –
a completely new story would surely have raised concern with any security or
immigration officer.
[173] Further,
Mr. Furman was admitted to Canada. He received the necessary security
clearance from the RCMP Officer. As stated by Dr. Avery, had Mr. Furman
admitted that he was a concentration camp guard “I think one could say almost
100 percent in my opinion they would have been rejected”. The fact that he was
admitted to Canada is strong
evidence that he did not tell the RCMP Officer of his background.
[174] On
a balance of probabilities, I find that Mr. Furman told the RCMP Officer, when
asked about his wartime activities, that he had been a farmer. For reasons that
I have set out above, I am not persuaded that this story was true. Rather, I
find that: Mr. Furman was born “Iosef Furmanchuk”; he served in the Soviet army
until captured in 1942; he became an SS Guardsman in 1942; he participated in
the evacuation of the Warsaw and Bialystok ghettos; and, served as a member of
the SS Death’s Head Unit at the Flossenbürg concentration camp. Other than the
change of name, which I discuss directly below, I am satisfied that, on a
balance of probabilities, Mr. Furman disclosed none of his background to the
RCMP Officer.
IX. Failure to Disclose True Name of Birth
[175] The
Minister submits that the evidence demonstrates that persons seeking to come to
Canada in the relevant time period were rejected for “False Presentation; - use
of false or fictitious name” (Memorandum dated August 11, 1948 from Major J.A.
Wright to the Commissioner of the RCMP, re: Visa Control Policy; Memorandum
dated November 20, 1948, Screening of Applicants for Admission to Canada). In
Cabinet Directive, Circular No. 14 dated October 28, 1949 and signed by N.A.
Robertson, Secretary to the Cabinet, the following is stated:
Displaced persons and certain classes of
prospective immigrants desiring to enter Canada are investigated under established
procedures by the R.C.M. Police. Persons in specified categories (i.e.,
Communists, members of the Nazi or Fascist Parties or of any revolutionary
organization, “collaborators” and users of false or fictitious names or
documents) are regarded as inadmissible under the Immigration Act and
are refused a visa. [Emphasis added.]
[176] The
Minister asserts that Mr. Furman misrepresented his identity to the immigration
authorities by using the name “Furman” rather than “Furmanchuk”. This may be
true. However, unlike the concealment of his background as a concentration camp
guard, I am not persuaded that Mr. Furman used a “false or fictitious name” or
that failure to disclose “Furmanchuk” as his name of birth – on its own – would
have led to his rejection.
[177] The
name “Furmanchuk” (or any variation in spelling) is easily related to the name
of “Furman” or “Furmann” adopted by Mr. Furman. The omission of the suffix
“chuk” is the only difference. Although no evidence was presented on the
meaning of “chuk” at the end of a Ukrainian surname, I think that it is
entirely possible that, in Ukrainian, “chuk” could be either a patronymic (“son
of”) or a surname/family name indicator that would be used for a male member of
the family. In either case, it is not clear to me that a person using a surname
without the extension would be misrepresenting his surname. I have no evidence
to indicate that the inclusion of “chuk” was an important identifying feature
of the name. In other words, Mr. Furman may well have believed that the use of
“chuk” as an extension to his surname was unnecessary and that “Furman” and
“Furmanchuk” reflected the same name in English or German.
[178] In
addition, Mr. Furman made no attempt to change his place or date of birth. This
is not a situation where an individual attempted to hide his identity by
changing his name from “Smith” to “Jones” (or from “Katriuk” to “Schpirkas”, as
was the case in Katriuk, above. It is quite plausible that the Officer
discovered or that Mr. Furman told the Officer that he was born “Furmanchuk”
and that neither of them considered the two names to be different. If the
immigration officials did not question his story of being a farm labourer, it
is not inherently probable that he would have been rejected solely on the basis
of the name change.
[179] I
cannot conclude that failure to disclose his birth name as Furmanchuk to the
immigration officers (if he did so) was a material representation that would
have been cause for his rejection on security grounds.
X. Acquisition of Citizenship
[180] Mr.
Furman was granted Canadian Citizenship in 1957. One of the claims of the
Minister (as set out in the Notice and Statement of Claim) is that Mr. Furman
failed to divulge the change in his surname to officials responsible for
granting Canadian citizenship. Because of this, in the Minister’s submission,
Mr. Furman obtained his Canadian citizenship by false representation or by
knowingly concealing material circumstances.
[181] The
evidence of the Minister on this point consists of Mr. Furman’s Application for
Citizenship, a copy of which was filed as an exhibit. The Application was sworn
by Mr. Furman on March 11, 1957. Question 11 of the Application poses three
questions. Those questions and Mr. Furman’s responses are as follows:
Question
|
Response
|
If
your name has been changed by court order, by Private Bill before a local
legislature or by registration, as the case may be, furnish a certificate or
certified copy of the court order or of the Bill. Give the date and place of
occurrence of the change of name.
|
Not
changed at all.
|
If
your name has been changed by marriage, give maiden name.
|
Nil.
|
If
your name has been modified, or its spelling has been changed, give name as
formerly written or used and date since such change occurred.
|
Nil.
|
[182] Given
my finding that Mr. Furman was born with the surname “Furmanchuk”, it appears
that his responses to two of these questions are false. However, I am not
satisfied that the Minister has established that this apparent
misrepresentation was material or, indeed, a misrepresentation in this case.
[183] As
discussed above, at section 9, it is not clear to me that a person using a
surname without the extension “chuk” would be misrepresenting his surname. At
the time of making his Application, Mr. Furman – who likely spoke very little
English – may well have believed that the use of “chuk” as an extension to his
surname was unnecessary and that “Furman” and “Furmanchuk” reflected the same
name in English.
[184] I
also note that Mr. Furman listed his correct date and place of birth. It is
inherently improbable that someone attempting to mask his identity would not
also have changed those details.
[185] On the
evidence before me, I am not satisfied, on a balance of probabilities, that Mr.
Furman failed to divulge the change in his surname to officials responsible for
granting Canadian citizenship.
XI. Submissions of Mr. Furman on Decision in Dueck
[186] In
final argument, Mr. Furman argued principally that the Minister had not
satisfied its burden of proof with respect to the factual basis of the claim.
He commended to me the decision in Canada (Minister
of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203, [1998]
F.C.J. No. 1829 (QL) (F.C.T.D.) stating that:
It deals exactly with the same time
frame. He talks about screening, the lack of screening, and there is another
interesting decision that he reaches that the RCMP had no legal authority to
reject immigrants based on security grounds. That is not supported by other
decision, but that is his decision, and you can look at that and deal with the
relevant documents.
[187] Mr.
Furman was not specific on which portions of the lengthy decision should apply.
Nevertheless, since this decision seemed to form the foundation of the final
submissions, I feel that I should address Dueck.
[188] In
Dueck, Justice Marc Noël found, inter alia, that the Minister had
failed to establish that:
[T]here
was a consistent process applied to all immigrants from Austria in July of
1948, that the process, if applicable, would have elucidated answers about the
applicant's wartime activities, or that collaborators "generally"
were prohibited from entering Canada [at para. 154].
It appears to me that
two findings by Justice Noël need to be addressed:
- The
Minister’s evidence did not establish that Mr. Dueck necessarily would
have been interviewed by an RCMP screening officer; and
- There was no legal
authority for the Minister or RCMP to prohibit the immigration of Mr.
Dueck on security grounds in July 1949.
[189] The
first issue is a determination of fact, and as such I must consider whether the
factual circumstances in Dueck are comparable to the present case. I
begin by noting some important distinguishing characteristics which prima
facie distinguish Justice Noël’s conclusion from this case:
- In Dueck,
the wartime allegations contained in the Notice of Revocation were not
made out; the Minister failed to establish that Mr. Dueck had been a
member of the “Selidovka
District Police” (an auxiliary, Ukrainian police force operating under the
German police in the area); thus, the case against Mr. Dueck failed on
other grounds, prior to Justice Noël’s discussion of Canadian immigration
and security issues (see paras. 147-149);
- Mr. Dueck
immigrated from Austria in 1948, rather than Germany in
1949, and Justice Noël’s analysis focused on the screening practice in
that local area and timeframe;
- The defendant in
that case testified that he had not been screened by a security officer;
in this case Mr. Furman, who did not testify, could not confirm or deny
whether he had been interviewed; and
- The Minister
alleged that Mr. Dueck would have been excluded from admission to Canada under
the “collaborator” rejection criterion and for no other reason, such as
membership in the SS or service at a concentration camp.
[190] Justice Noël reviewed
the history of Canada’s security screening
policies and procedures from 1945 to 1950. In short, he found that Cabinet set
the immigration eligibility criteria, the Minister of Mines and Resources dealt
with immigration matters, and the RCMP had sole authority over security
screening procedures, with input from the Security Panel and its sub-committees.
My conclusions, in this case and on much of the same evidence, are the same.
[191] However,
Justice Noël had before him certain evidence indicating that, in 1947, the
screening procedure was still being developed through practice and was not
necessarily being applied in all cases. Specifically, Justice Noël referred to
immigration records which suggested a deficiency in screening:
Statistics
prepared for the Immigration/Labour Committee show that 8,728 DP's had arrived
in Canada by April 8, 1948. In comparing this
number to the 1,611 DP's who had been screened by the RCMP by March 30, 1948,
the respondent suggested this would mean that only 18.45% of DP's had actually
been screened by the RCMP. While this calculation involves a number of assumptions,
the applicant did not challenge these assumptions, the source from which these
numbers were derived, the method which was used or the conclusion reached with
respect to the number of DP's screened. These numbers do raise a serious
question about the extent to which a consistent method of security screening
was being applied during the period at issue [at para. 201; citations omitted;
emphasis added].
[192] Thus,
Justice Noël was not satisfied that all displaced persons coming from Austria in 1948
would have screened by the RCMP. That determination was made on the basis of
the evidence presented to Justice Noël. In his view, that evidence suggested
that the screening procedure might have contained gaps.
[193] Seven
years after the decision in Dueck, I am faced with a different
evidentiary record. Although Mr. Furman mentioned Dueck in final
argument, he did not point to any specific evidence which might impugn the
assertion by Dr. Avery, supported by the documentary evidence, that security
screening of displaced persons was mandatory and adhered to in all situations
by 1949. On the contrary, counsel for Mr. Furman commended to me the expert
opinion of Dr. Avery.
[194] I
emphasize the fact-driven nature of this revocation inquiry. The evidence and
argument before me tell a different story than that which was before Justice
Noël. I have not been made aware of, nor have I located in my review of the
voluminous Canadian immigration documents before me, evidence that RCMP
screening officers were, except possibly through inadvertence, failing to
interview all displaced persons coming from Germany.
[195] I turn then to the
second applicable issue from Dueck – the legal authority to screen out
European displaced persons on security grounds. Justice Noël determined that,
although the Immigration Act, 1927, in force in 1948, granted broad
discretion to the Governor-in-Council to prohibit entry to Canada, the Act
required that this discretion be exercised through Orders-in-Council, and that
no such Order effectively prohibited the entry of immigrants on security
grounds until P.C. 2856 was issued in 1950. Prior to that time, there was no
legal authority for the Minister or the RCMP to screen out immigrants on
security grounds.
[196] If I am correct that Mr.
Furman was referring to the jurisdictional finding of Justice Noël, I note that
contrary conclusions were reached in Kisluk, above and in Odynsky,
above.
[197] In Kisluk,
Justice Lutfy concluded that the legal authority in question had existed by
virtue of the blanket prohibition on immigration and the discretion vested in
immigration officers to allow the landing of specified classes as exceptions to
that prohibition (see para. 173). This authority had been established by the
Orders-in-Council P.C.
695, P.C. 4849, P.C. 2743 and P.C. 2856. Justice Lutfy also referred to a
second series of Orders-in-Council that authorized regulations concerning
visas, and found that these regulations also conferred discretion to restrict
landing in Canada on security grounds (at para. 179).
[198] I
find the reasoning of Justice Lutfy in Kisluk to be persuasive.
[199] Accordingly, I find that legal authority to screen out
European displaced persons on security grounds existed by virtue of a number of
Orders-in-Council, including P.C. 695, P.C. 4849, P.C. 2743 and P.C. 2856,
which established a blanket prohibition against immigration and conferred
discretion upon the Minister to allow individuals to be admitted to Canada. This
authority existed as early as 1931, when P.C. 695 was passed, and was valid in
1949, when Mr. Furman came to Canada.
[200] In sum, the decision in Dueck does not assist Mr. Furman.
XII. Officer’s Exercise of Discretion
[201] There
remains a question of whether, on the facts of this case, Mr. Furman would necessarily
have been rejected by the RCMP Officer who conducted the security screening.
Without the direct testimony of the RCMP Officer who would have conducted the
interview, there is some degree of speculation. In spite of the direction of
his superiors, it is arguable that the Officer may have considered the
circumstances under which this former Soviet prisoner of war became an SS
Guardsman and exercised his discretion. The problem with this assertion is that
Mr. Furman never provided the information to the Officer. In not admitting that
he was a Soviet prisoner of war and a concentration camp guard during the war,
Mr. Furman effectively foreclosed any questioning by the RCMP Officer regarding
the particulars of that background.
[202] The
Supreme Court of Canada in Canada (Minister
of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850, [1973]
S.C.J. No. 112 addressed this problem. In that decision, the Supreme Court was
dealing with an immigrant to Canada who had not disclosed certain information
during the application process. The provision of the Immigration Act,
1948 under consideration was s. 19, which provided that every person who
came into Canada “by reason
of any false or misleading information” is “subject to deportation”. Disclosure
of the information would not necessarily have prohibited the landing of the
individual. Nevertheless, the Court stated as follows:
Lest there be any doubt on the matter as
a result of the Board's reasons, I would repudiate any contention or conclusion
that materiality under s. 19(1)(e)(viii) requires that the untruth or the
misleading information in an answer or answers be such as to have concealed an
independent ground of deportation. The untruth or misleading information may
fall short of this and yet have been an inducing factor in admission. Evidence,
as was given in the present case, that certain incorrect answers would have had
no influence in the admission of a person is, of course, relevant to
materiality. But also relevant is whether the untruths or the misleading
answers had the effect of foreclosing or averting further inquiries, even if
those inquiries might not have turned up any independent ground of deportation.
[Emphasis added.]
[203] The
reasoning of the Supreme Court in Brooks has been followed by the
Federal Court in decisions dealing with proceedings of this nature (see, for
example, Bogutin, above at para. 124; Baumgartner, above at para.
139).
[204] The
point is that Canadian officials responsible for the screening of Mr. Furman
were foreclosed from making further inquiries. It would have been impossible
for the Officer to question him on his service with the Soviet army or on what
acts he had committed as a concentration camp guard. Whether the Officer might
have exercised some discretion is irrelevant; he never had the opportunity to
do so.
XIII. Summary of Findings
[205] At
the outset of these reasons, I identified a series of questions. In summary, I
respond to those questions with the following findings, all of which are made
on a balance of probabilities after careful consideration of the evidence:
- Josef Furman, the
Defendant in these proceedings, was born “Iosef Furmanchuk”.
- An individual named
“Josef Furmantschuk” trained as an SS Trawniki Guardsman and participated,
as an SS Guardsman, in activities at the Jewish ghettos of Warsaw and Bialystok and at
the Flossenbürg concentration camp.
- Josef Furman, born
Iosef Furmantschuk, is the same person as “Josef Furmantschuk”, the SS
Guardsman referred to in these reasons.
- Josef Furman, known
at that time as Guardsman Josef Furmantschuk, Registration No. 1538,
participated, as a guard, in the evacuations of Jews from Warsaw and Bialystok, in
1943, and was a concentration camp guard at Flossenbürg concentration camp
from October 7, 1943 to at least April 1, 1944.
- Canadian
immigration officials and, in particular an RCMP officer, interviewed Mr.
Furman and sought information on his World War II activities.
- Mr. Furman
concealed his wartime activities from Canadian immigration officials (in
particular, from the RCMP screening officer) prior to coming to Canada,
including information that he had been: (a) a Soviet prisoner of war; and
(b) an SS Guardsman at the evacuation of Warsaw and Bialystok and at the
Flossenbürg concentration camp.
- The information
that Mr. Furman had been a Trawniki guardsman and, in particular, a former
concentration camp guard, if disclosed, would have been of significant
concern to the interviewing RCMP officer and would, in all likelihood,
have led to his rejection on security grounds.
[206] As
discussed, the Minister has not persuaded me that Mr. Furman provided a false
name to Canadian immigration officials or upon his application for Canadian
citizenship.
XIV. Overall Conclusion
[207] In
conclusion, I find, on a balance of probabilities, after carefully scrutinizing
the evidence before me, that, at the time of his immigration to Canada in 1949,
Mr. Furman falsely represented to Canadian immigration officials that he had
performed forced farm labour from 1942 to 1945. He knowingly concealed his
wartime associations with the Soviet Army and the SS Death’s Head Units,
including as a concentration camp guard.
[208] This
conclusion is, in my view, sufficient to dispose of this matter. It is not
necessary to determine whether he was “lawfully admitted” to Canada. However,
for greater certainty, I also find that Mr. Furman was: not lawfully admitted
to Canada; did not
acquire Canadian domicile; and, was not a person of good character – all of
which are contrary to the Immigration Act, 1948.
[209] For
these reasons, I find that Mr. Furman was admitted to Canada and obtained
his Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances.
[210] The
Minister advised that, if successful, he would not seek costs. Consequently,
there will be no order as to costs.
JUDGMENT
THIS COURT ADJUDGES
AND DECLARES that:
- The Defendant,
Josef Furman, obtained citizenship in Canada by
false representation or fraud or by knowingly concealing material
circumstances, within the meaning of s. 18(1)(b) of the Citizenship
Act.
“Judith A.
Snider”
_____________________________
Judge
APPENDIX “A”
to the
Reasons for Judgment and Judgment dated
August 17, 2006
In
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and
JOSEF FURMAN
T-560-04
Citizenship
Act, 1985
10. (1) Subject to section 18 but
notwithstanding any other section of this Act, where the Governor in Council,
on a report from the Minister, is satisfied that any person has obtained,
retained, renounced or resumed citizenship under this Act by false
representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the
person shall be deemed to have had no effect, as of such date as may be fixed
by order of the Governor in Council with respect thereto.
(2) A person
shall be deemed to have obtained citizenship by false representation or fraud
or by knowingly concealing material circumstances if the person was lawfully
admitted to Canada for permanent residence by false representation or fraud
or by knowingly concealing material circumstances and, because of that
admission, the person subsequently obtained citizenship.
…
18. (1) The Minister shall not make a
report under section 10 unless the Minister has given notice of his intention
to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days
after the day on which the notice is sent, request that the Minister refer
the case to the Court; or
(b) that person does so request and the
Court decides that the person has obtained, retained, renounced or resumed
citizenship by false representation or fraud or by knowingly concealing
material circumstances.
(2) The
notice referred to in subsection (1) shall state that the person in respect
of whom the report is to be made may, within thirty days after the day on
which the notice is sent to him, request that the Minister refer the case to
the Court, and such notice is sufficient if it is sent by registered mail to
the person at his latest known address.
(3) A
decision of the Court made under subsection (1) is final and, notwithstanding
any other Act of Parliament, no appeal lies therefrom.
Canadian
Citizenship Act, 1948
10. (1) The Minister may, in his discretion grant
a certificate of citizenship to any person who is not a Canadian citizen and
who makes application for that purpose and satisfies the Court that,
(a) either he has filed in the
office of the Clerk of the Court for the judicial district in which he
resides, not less than one nor more than five years prior to the date of his
application, a declaration of intention to become a Canadian citizen, the said
declaration having been filed by him after he attained the age of eighteen
years; or he is the spouse of and resides in Canada with a Canadian citizen,
or he is a British subject;
(b) he has been lawfully
admitted to Canada for permanent residence therein;
(c) he has resided continuously
in Canada for a period of one year immediately preceding the date of the
application and, in addition, except where the applicant has served outside
of Canada in the armed forces of Canada during time of war or where the
applicant is the wife of and resides in Canada with a Canadian citizen, has
also resided in Canada for a further period of not less than four years
during the six years immediately preceding the date of the application;
(d) he is of good character;
(e) he has an adequate
knowledge of either the English or the French language, or, if he has not
such an adequate knowledge, he has resided continuously in Canada for more than
twenty years;
(f) he has an adequate
knowledge of the responsibilities and privileges of Canadian citizenship; and
(g) he intends, if his
application is granted, either to reside permanently in Canada or to enter or
continue in the public service of Canada or of a province thereof.
Immigration
Act, 1948
2. In this Act
…
(n) “landing” means the lawful
admission of an immigrant to Canada for permanent residence;
…
20. (1) Every person, including Canadian citizens
and persons with Canadian domicile, seeking to come into Canada shall first
appear before an immigration officer at a port of entry or at such other
place as may be designated by an immigration officer in charge, for
examination as to whether he is or is not admissible to Canada or is a person
who may come into Canada as of right.
(2) Every person shall answer truthfully all questions
put to him by an immigration officer at an examination and his failure to do
so shall be reported by the immigration officer to a Special Inquiry Officer
and shall, in itself, be sufficient ground for deportation where so ordered
by the Special Inquiry Officer.
(3) Unless the examining immigration officer is of
opinion that it would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let a person examined by him
come into Canada, he shall, after such examination, immediately grant
admission to or let such person come into Canada.
…
50. Every person who
…
(f) knowingly makes any false
or misleading statement at an examination or inquiry under this Act or in
connection with the admission of any person to Canada or the
application for admission by any person;
…
is guilty
of an offence and is liable on summary conviction, for the first offence to a
fine not exceeding five hundred dollars and not less than fifty dollars or to
imprisonment for a term not exceeding six months and not less than one month
or to both fine and imprisonment, and, for the second offence to a fine not
exceeding one thousand dollars and not less than one hundred dollars or to
imprisonment for a term not exceeding twelve months and not less than three
months or to both fine and imprisonment, and, for the third or a subsequent
offence to imprisonment for a term not exceeding eighteen months and not less
than six months.
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Loi sur la citoyenneté, 1985
10. (1) Sous réserve du seul article 18, le gouverneur en conseil
peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la
conservation ou la répudiation de la citoyenneté, ou la réintégration dans
celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen
d’une fausse déclaration ou de la dissimulation intentionnelle de faits
essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la
date qui y est fixée :
a)
soit perd sa citoyenneté;
b)
soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse
déclaration ou dissimulation intentionnelle de faits essentiels la personne
qui l’a acquise à raison d’une admission légale au Canada à titre de résident
permanent obtenue par l’un de ces trois moyens.
…
18. (1) Le ministre ne peut procéder à l’établissement du rapport
mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son
intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne
se soit réalisée :
a) l’intéressé
n’a pas, dans les trente jours suivant la date d’expédition de l’avis,
demandé le renvoi de l’affaire devant la Cour;
b)
la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse
déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a
l’intéressé, dans les trente jours suivant sa date d’expédition, de demander
au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis
peut se faire par courrier recommandé envoyé à la dernière adresse connue de
l’intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive
et, par dérogation à toute autre loi fédérale, non susceptible d’appel.
Loi sur la citoyenneté canadienne, 1948
10. (1) Le Ministre peut, à sa discrétion, accorder un
certificat de citoyenneté à toute personne qui n’est pas un citoyen canadien,
qui en fait la demande et démontre à la satisfaction du tribunal,
a) qu’elle a
produit au greffe du tribunal du district judiciaire où elle réside, au moins
un an et au plus cinq ans avant la date de sa demande, une déclaration de son
intention de devenir un citoyen canadien, ladite déclaration ayant été
produite par cette personne après qu’elle a atteint l’âge de dix-huit ans; ou
qu’elle est le conjoint d’un citoyen canadien et réside avec lui au Canada,
ou qu’elle est un sujet britannique;
(b) qu’elle a
été licitement admise au Canada pour y résider en permanence;
(c) qu’elle a
résidé continûment au Canada pendant un an immédiatement avant la date de sa
demande et qu’en outre, sauf si la personne qui présente la demande a servi
hors du Canada dans les forces armées du Canada en temps de guerre, ou si
elle est l’épouse d’un citoyen canadien et réside avec lui au Canada, elle a
résidé au Canada durant une période supplémentaire d’au moins quatre ans au
cours des six années qui ont immédiatement précédé la date de la demande;
d) qu’elle a
une bonne moralité;
e) qu’elle
possède une connaissance suffisante de l’anglais ou du français, ou, si elle
ne possède pas cette connaissance, qu’elle a résidé continûment au Canada
pendant plus de vingt ans;
f) qu’elle a
une connaissance suffisante des responsabilités et privilèges de la
citoyenneté canadienne; et
g) qu’elle se
propose, une fois sa demande accordée, soit de résider en permanence au
Canada, soit d’entrer ou de demeurer au service public du Canada ou de l’une
de ses provinces.
Loi sur
l’immigration, 1948
2. Dans la présente loi, l’expression
…
n)
«réception» signifie l’admission légale d’un immigrant au Canada aux fins de
résidence permanente;
…
20. (1) Quiconque, y compris un citoyen
canadien et une personne ayant un domicile canadien, cherche à entrer au
Canada doit, en premier lieu, paraître devant un fonctionnaire à
l’immigration, à un port d’entrée ou à tel autre endroit que désigne un
fonctionnaire supérieur de l’immigration, pour un examen permettant de
déterminer s’il est admissible ou non au Canada ou s’il est une personne
pouvant y entrer de droit.
(2) Chaque personne doit donner des
réponses véridiques à toutes les questions que lui pose, lors d’un examen, un
fonctionnaire à l’immigration, et tout défaut de ce faire doit être signalé
par ce dernier à un enquêteur spécial et constitue, en soi, un motif
d’expulsion suffisant lorsque l’enquêteur spécial l’ordonne.
(3) Sauf s’il estime qu’il serait ou
qu’il peut être contraire à quelque disposition de la présente loi ou des
règlements d’accorder à une personne par lui examinée l’admission au Canada,
ou de la laisser autrement entrer au Canada, le fonctionnaire examinateur à
l’immigration doit, dès qu’il a terminé cet examen, accorder à la personne en
cause l’admission au Canada, ou l’y laisser entrer.
…
50. Est coupable d’une infraction et
encourt, sur déclaration sommaire de culpabilité, pour la première
infraction, une amende d’au plus cinq cents dollars et d’au moins cinquante
dollars ou un emprisonnement d’au plus six mois et d’au moins un mois ou à la
fois l’amende et l’emprisonnement et, pour la deuxième infraction, une amende
d’au plus mille dollars et d’au moins cent dollars ou un emprisonnement d’au
plus douze mois et d’au moins trois mois ou à la fois l’amende et
l’emprisonnement et, pour la troisième infraction ou une infraction
subséquente, un emprisonnement d’au plus dix-huit mois et d’au moins six
mois, quiconque
…
(f) sciemment
fait une déclaration fausse ou trompeuse au cours d’un examen ou d’une
enquête prévue par la présente loi ou à l’égard de l’admission d’une personne
au Canada ou de la demande d’admission de qui que ce soit;
…
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