Canada v. Obodzinsky, 2003 FC 1080

••••••••

Date: 20030919

                                                                                                                               Docket: T-166-00

Citation: 2003 FC 1080

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Plaintiff

AND:

WALTER OBODZINSKY

(Alias Wlodzimierz or Volodya Obodzinsky)

Defendant

REASONS FOR REFERENCE

LEMIEUX J.

INTRODUCTION

[1]         This is a reference, requested August 23, 1999, by Walter Obodzinsky, who was born in Byelorussia and has been a Canadian citizen since 1955.

[2]         The reference was requested by the defendant pursuant to paragraph 18(1)(a) of the Citizenship Act, 1976 (the Act), as it was written prior to its amendment in 2001, following his receipt of a notice (the notice) under subsection 18(1) of the Act issued July 29, 1999, by the Minister of Citizenship and Immigration (the Minister) indicating her intention under section 10 of the Act to report to the Governor in Council that Mr. Obodzinsky was admitted to Canada with landing in permanent residence and acquired Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

[3]         Sections 10 and 18 of the Act read as follows:

[4]         The case law is clear that the nature of the judge's function on a reference under the Act is "to collect evidence of facts surrounding the [defendant's] acquisition of citizenship, so as to determine whether it was obtained by fraudulent means" (see Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2002] F.C.A. 518, paragraph 15).

[5]         In Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.), Mr. Justice Linden writes at paragraph 8 that "[A]ll that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representations . . . it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition."

[6]         To the same effect is the decision of Mr. Justice Strayer in Canada (Minister of Citizenship and Immigration) v. Fast, [2001] F.C.A. 373, where he states that the reference procedure under section 18 of the Act "involves only findings of fact and no decisions that determine rights" since under the Act, prior to its amendment, the trier of fact had no power to revoke an individual's citizenship.

[7]         It is also settled law that it is the Minister who has the burden of establishing that a defendant acquired his citizenship by false representation or fraud or by knowingly concealing material circumstances, and that the sufficiency of the Minister's evidence is judged on the balance of probabilities (Minister of Citizenship and Immigration v. Bogutin, [1998] F.C.J. No. 211).

[8]         To determine a fact on the balance of probabilities means that the trier of fact decides that the proof is such that the court can find that it is more probable that the onus has been met. In other words, the judge must determine that the existence of a disputed fact is more probable than its non existence. See The Law of Evidence in Canada, Sopinka et al., 2nd ed. (Butterworths, 1999), p. 155.

[9]         As Jean-Claude Royer explains in his book, La preuve civile (Éditions Yvon Blais, 1987), at paragraph 166, in a civil law case the court decides on the balance of probabilities: "[translation] ... it is through the preponderance of evidence that cases must be decided... in light of what is indicated by the most probable facts. To fulfill his duty to persuade, a litigant must establish sufficient evidence to make the act or juridical fact in dispute not only possible but probable."

BACKGROUND

1.          The notice

[10]       The following are the reasons given by Ms. Robillard, the Minister, in the notice she sent to the defendant:

[translation]

You were admitted to Canada as a landed immigrant with permanent residence and acquired Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, as you failed to disclose to the Canadian authorities responsible for the selection of applicants your activities during the Second World War, including:

•                Your collaboration with the German occupation authorities of what is now Byelorussia (or Belarus);

•                Your links with the local auxiliary police force organized by the Germans in the district of Mir, which became the Schutzmannshaft, and which was involved in the deportation and massacre of Jewish and non-Jewish civilians in the district of Mir;

•                Your links with an anti-partisan unit assembled in the town of Baranovicze in 1943, which was involved in the deportation and massacre of civilians in what is now Byelorussia;

•                Your links with the 30.Waffen-Grenadier-Division der SS;

or

•                Various other activities in which you were involved that made you inadmissible and prohibited your entry to Canada. [Emphasis added]

2.          The statement of claim

[11]       Following Walter Obodzinsky's request that the Minister refer the case to the Court, the Minister took action by means of a statement of claim against him dated February 1, 2000.

[12]       According to the statement of claim, the defendant was born on May 7, 1919, in the village of Turez in the district of Mir, a region that between 1921 and 1939 was part of Poland before coming under the control of the Union of Soviet Socialist Republics (USSR) in 1939 as a result of the Molotov-Ribbentrop Agreement. This territory was subsequently invaded on June 22, 1941 by the German troops, who, after a blitzkrieg, occupied it by the end of June 1941, an occupation that ended in mid-1944 when the Red Army drove out the occupiers.

[13]       The Minister claims that during the summer of 1941, the defendant voluntarily joined, as a police officer, the auxiliary police unit formed in the district of Mir by the German occupation military administration and that he continued to perform police duties when the Schutzmannschaften of the district of Mir, units stationed in the villages, were established during the fall of 1941 by the German civilian occupation that had taken over from the military.

[14]       Heinrich Himmler, supreme commander of the SS (Schutztaffel) and the German police, was largely given responsibility for maintaining security and order in the newly occupied territories under German occupation civilian jurisdiction. It was Himmler who, according to the statement of claim, ordered the formation of auxiliary police units composed of volunteers from the local population, subordinated to and integrated with the SS and German police structure.

[15]       The role of the Schutzmannschaften was to support the German authorities in the occupied territories: (1) to provide order, security and control, (2) to fight the partisans, and (3) to implement the German occupation policies such as the exploitation of natural and human resources and the systematic extermination of the political and racial enemies of the Reich, including in particular the Communists and the Jews.

[16]       The Schutzmannschaften were commanded and supervised by a small number of German police officers (the Gendarmerie).

[17]       The statement of claim alleges that in 1941 the defendant was stationed in the villages of Turez and Jeremichi, and that he was transferred to the Schutzmannschaft station in the town of Mir in August 1942, where he continued to perform police duties.

[18]       Paragraph 21 of the statement of claim is important, since it describes the role at the time of the local police in the district of Mir in the participation in certain atrocities, including the following:

[translation]

21.            The local police in the district of Mir, at the time the defendant was one, participated in the commission of atrocities, including in particular the ones hereinafter cited:

(a)            As soon as the auxiliary police unit in the Mir district was established, during the summer of 1941, the local police participated in the exploitation, mistreatment, harassment and humiliation of the Jewish population and the seizure of their property;

(b)            Later, the local police in the Mir district participated in the execution of Jewish and non-Jewish civilians. More particularly, on October 28, 1941, at Turez, some local police ordered about a dozen Jews to dig a large ditch within the Jewish cemetery. The other Jews in Turez were ordered to assemble in the village, at the marketplace. About fifty-seven Jewish men and women were selected and escorted to the cemetery, where they were ordered to undress. After being separated into three groups, they were lined up at the edge of the ditch and shot by the local police;

(c)            On November 4, 1941, some Germans and local police forced the Jews of Jeremitsche, who numbered about one hundred, to go to a ditch dug at the far end of the village, to take off their clothes and to lie down in the ditch. They were then shot by the local police and some Germans, all of whom were lined up along the side of the ditch;

(d)            Later that day, the rest of the Jewish population of Turez, comprising between 500 and 600 men, women and children, were ordered to assemble in the main square. About one hundred Jews were picked out for deportation to a labour camp, a sawmill in the village of Nowy Swierschen. The other Jews were shot by some Germans and some local police from the district of Mir, after they had been ordered to lie down in a ditch excavated in the village's Jewish cemetery;

(e)            On November 9, 1941, about 1,500 Jewish inhabitants of the town of Mir were executed by the Germans and the local police. All of the auxiliary police unit stations in the Mir district participated in this huge massacre;

(f)             The Jews of Mir who survived this massacre were confined to living in a limited part of the town. In May 1942, they were transferred to the ghetto created in the Mirsky chateau situated in the town of Mir;

(g)            On August 13, 1942, the Germans, aided by members of the Schutzmannschaft of the district of Mir, killed all of the Jews living in the ghetto in the Mirsky chateau, about 560 persons;

(h)            However, some Jews had managed to escape from the chateau several days before the ghetto's liquidation. In the following weeks, the Schutzmannschaft members in the Mir district patrolled the neighbouring region looking for Jews who had escaped from the chateau. About sixty-five Jews were captured and executed;

[19]       According to the Minister, the auxiliary police in the Mir district were involved in the fight against the partisans. The statement of claim mentions a raid on Lyadki on January 13, 1943, in which an execution squad went from house to house, guarded by the auxiliary police, and that on March 7, 1943, a number of villages were burned down and a large number of civilians killed.

[20]       The defendant's participation as a member of the Jagdzug Baranowitsche (the Jagdzug) is a novel aspect of Walter Obodzinsky's alleged collaboration with the German occupiers. This formation is said to have committed atrocities against the local population and in particular in the course of its fight against the partisans. The defendant's voluntary membership in the Jagdzug as a squadron chief is situated in April or May 1943.

[21]       The statement of claim describes some of the Jagdzug's operations in detail. The Jagdzug fought for the first time in July 1943 as a sub-unit of the von Gottberg combat group during operation Hermann, one of the major offensives against the partisans by the Germans and local police. "[translation] These operations were intended to make extensive regions uninhabitable by burning down villages, killing presumed partisans and deporting the remainder of the population to forced labour camps. During operation Hermann, the Jagdzug was attached to the Schutzmannschaft 57 battalion." (Paragraph 24 of the statement of claim.)

[22]       Operation Hermann resulted in a huge loss of life, with more than 4,000 civilians killed and more than 20,000 men, women and children deported to forced labour camps. Furthermore, between the summer of 1943 and June 1944, the Jagdzug participated in numerous patrols and operations aimed at fighting the partisans.

[23]       The third stage in the defendant's journey with the Germans, the statement of claim alleges, began in late June 1944, when several members of the Mir district Schutzmannschaft and the Jagdzug, including the defendant, pulled back toward the West with the Germans fleeing the advance of the Red Army. They regrouped in the region of Ostenburg and then moved to Rosenberg, a military training camp north of Schwerin in Germany, where the various units were disbanded and incorporated into the 30 Waffen-Grenadier-Division der SS (30th Waffen SS).

[24]       It was around August 22, 1944, that the defendant, within his new unit, was transferred to France. Soon afterwards, Mr. Obodzinsky and several other members of Polish origin of the 30th Waffen SS deserted and joined the French Resistance.

[25]       Four weeks after these events, the Minister alleges, the defendant and his compatriots were invited to join the Polish Second Corps, at the time under British command, an army formed in 1942 in the USSR when the Soviets allowed certain prisoners of war or Polish deportees to leave the USSR in the wake of Operation Barbarossa.

[26]       Following his enlistment, and until November 1946, the defendant was in Italy with the Polish Second Corps.

[27]       In 1946 Canada agreed to accept 4,000 former members of the Polish Armed Forces who had served on the Allied side. This special and unique program was ratified by Privy Council order P.C. 3112, dated July 23, 1946 (the order in council).

[28]       Order in council P.C. 3112 created a selection team (the Mission) and gave it its terms of reference. The relevant provisions of the order in council, of which only the English version was filed in evidence, read:

AT THE GOVERNMENT HOUSE AT OTTAWA

                                      TUESDAY, the 23rd day of JULY 1946.

                                                               PRESENT:

HIS EXCELLENCY,

THE GOVERNOR GENERAL IN COUNCIL:

WHEREAS there exists in Canada an acute shortage of suitable labour for agricultural employment;

AND WHEREAS the Minister of Labour and the Minister of Mines and Resources represent that it is considered necessary to make provision for the early acquisition of suitable labour for agricultural employment;

AND WHEREAS the Minister of Mines and Resources proposes to permit entry into Canada under the authority of the Immigration Act of 4,000 single ex-members of the Polish Armed Forces who served with the Allied Forces engaged in hostilities against the Axis powers and who are presently located in the United Kingdom and Italy and are qualified for and willing to undertake agricultural employment in Canada;

AND WHEREAS the Minister of Labour and the Minister of Mines and Resources represent that it is considered desirable that provision be made for the selection and examination overseas of men for entry into Canada as aforesaid, to settle the conditions relative to their employment in agriculture in Canada, to provide for their placement in employment and for their supervision and welfare while so employed;

NOW, THEREFORE, His Excellency the Governor General in Council, on the joint recommendation of the Minister of Labour and the Minister of Mines and Resources is pleased to order and doth hereby order as follows:-

1.             The Minister of Labour is hereby authorized

(a)          by arrangement with the Departments concerned to send representatives of the Departments of Mines and Resources and Labour and the Royal Canadian Mounted Police to the United Kingdom and Italy to interview and examine persons of the above-mentioned description for the purpose of selecting 4,000 of such persons for agricultural employment in Canada and to pay the necessary transportation and living expenses of such representatives while so engaged;

                                                                      . . .

3.             Each person permitted entry into Canada as aforesaid shall be granted permanent admission to Canada upon due fulfilment and observance by him of the terms and conditions of the undertaking given by him pursuant to Section 2 of this Order and if otherwise eligible to enter or remain in Canada under the Immigration Act. [Emphasis added]

[29]       The Mission, composed of two doctors, two members of the Royal Canadian Mounted Police (RCMP) and two officials in the National Employment Service, arrived in Italy on August 20, 1946. According to the Minister, the selection process was as follows:

[translation]

36.            There were several stages in the selection process that the defendant had to undergo pursuant to the aforementioned order in council. At each of them, the defendant had to be in possession of his immigration application form in Polish, an English translation of this form and his confidential Polish Second Corps military notebook.

37.            All of the applicants were to meet with the medical officers, the National Employment Service officers and finally the RCMP officers. They had to successfully complete each of the stages before being selected for entry to Canada.

38.            The RCMP officers met with the applicants and the latter had to present their military notebook and their immigration application form. Accompanied by an interpreter, the RCMP officers questioned the applicants concerning the circumstances in which they had joined the Polish Second Corps and their past history and activities before joining it.

39.            The examination was more rigorous in the case of applicants who had served with the Germans prior to their enlistment in the Polish Second Corps.

40.            In particular, the RCMP officers wanted to find out whether the applicants who had served with the Germans could be considered as having voluntarily joined the German security forces. If so, the applicants were rejected. [Emphasis added]

[30]       The concealment alleged against the defendant is in having hidden from the RCMP officers:

[translation]

4(a)          his voluntary enlistment in an auxiliary police unit established by the German occupation military administration and in the Schutzmannschaft in the district of Mir;

(b)            his membership in an auxiliary police unit established by the German occupation military administration, in the Schutzmannschaft in the district of Mir, in the Jagdzug Baranowitsche and in the 30th Waffen SS; and

(c)            his activities within these organizations.

[31]       The Minister states that the defendant provided the RCMP officers with a military notebook "[translation] containing false and misleading information in that this document simply stated that the defendant had been in the German Army from February 3, 1944 to May 7, 1944" (paragraph 42 of the statement of claim).

[32]       The Minister alleges that because "[translation] of the defendant's misrepresentations and knowing concealment of major circumstances concerning his past history and activities during the war, the Canadian authorities were deprived of material information that would have enabled them to validly determine, in full knowledge, the defendant's admissibility to Canada" and that he "[translation] would not have been admitted to Canada if his associations with various units subordinate to the Germans and his activities during the war had been known to the RCMP officers" (paragraphs 43 and 44 of the statement of claim).

[33]       Furthermore, "[translation] [A]t the time the defendant applied for Canadian citizenship, good character and acquisition of Canadian domicile were two of the essential conditions that a person had to meet in order to be granted Canadian citizenship" but the defendant "[translation] presented himself to the Canadian authorities as a person of good character notwithstanding his activities during the war, and in particular his collaboration with the Nazi regime" through his voluntary enlistment and his membership in the auxiliary police in the district of Mir and the Jagdzug, as well as his activities within these organizations (paragraphs 45 and 46 of the statement of claim).

[34]       The Minister argues that the defendant, in the context of his citizenship application, also presented himself as a person who had acquired Canadian domicile, that is, been legally admitted to Canada in order to acquire Canadian domicile and that because of his false representations and knowing concealment of material circumstances on his application for participation in the agricultural employment program of 1946, he had not been legally admitted to Canada and consequently had never acquired Canadian domicile, and his citizenship application did not meet the requirements provided by law.

[35]       The Minister alleges that the Canadian authorities were deprived of necessary information that would have enabled them to rule meaningfully on the defendant's application for citizenship because he falsely presented himself as a person of good character who had acquired Canadian domicile. Through such conduct, the defendant hid from the Canadian authorities information that would have resulted in a refusal to grant him Canadian citizenship.

3.          The statement of defence

[36]       After an examination for discovery before defence and following an application for a permanent stay that was heard and dismissed by Mr. Justice Nadon, then a judge in the Trial Division of this Court (appeal dismissed by the Federal Court of Appeal and leave to appeal refused by the Supreme Court of Canada), Walter Obodzinsky filed his statement of defence on July 15, 2002.

[37]       He acknowledges that he was admitted to Canada on a temporary basis in November 1946 in accordance with the conditions set out in P.C. 3112.

[38]       He affirms that on September 28, 1946, the Canadian government issued a final directive in writing (in regard to the defendant's class in particular) to the Mission, establishing the government's position on the selection of Poles from the Second Corps.

[39]       This directive "[translation] clearly established that the appropriate instructions were that these officers were to accept not only the Poles who had deserted from German units and had fought against the Germans during the War but also those who had participated in activities hostile to the Germans after being captured by the Allies while they were fighting on the German side" (emphasis added) (paragraph 10 of the statement of defence).

[40]       According to the statement of defence, "[translation] the only group that was excluded was even specified in the so-called directive and was the one that had joined the Polish Corps after the end of the hostilities with the Germans" and accordingly "[translation] the plaintiff was well aware, in 1946, that it was admitting persons who, before being members of the Polish Corps, had served in the German units, that these units were regular or German SS units" and therefore that "[translation] even if the statements of the plaintiff [the Minister] were true, they cannot be held against the defendant" (emphasis added) (paragraphs 11, 12 and 14 of the statement of defence).

[41]       A number of legal defences were raised by Walter Obodzinsky in response to the conclusion sought by the Minister:

(a)         He alleges that he is "[translation] unable to collaborate with his counsel in the preparation of his defence; his capacities being so affected or diminished that he is unable to defend himself without endangering his life or his health; unable to attend any hearing or inquiry; the continuation of the proceedings risks jeopardizing his health and his life through the effect of the stress, creating repeated anginous pains", with the overall result that the plaintiff's legal proceedings constitute cruel and unusual punishment, which is prohibited by section 12 of the Canadian Charter of Rights and Freedoms (the Charter) (paragraph 3 of the statement of defence).

(b)         The statutory provisions in relation to the revocation of citizenship procedure, sections 10 and 18 of the Act, in correlation with the Immigration Act, contravene and are incompatible with certain sections of the Canadian Bill of Rights (the Bill of Rights) as well as with sections 7, 12 and 15 of the Charter, and ought to be declared inoperative in regard to the defendant in that the Act does not provide for a full hearing before an independent court or tribunal which determines the right of the citizen whose citizenship is being revoked, fails to guarantee compliance with the principles of fundamental justice, breaches the equality rights of naturalized citizens, is discriminatory and exposes Canadian citizens to a treatment that is proscribed by section 12 of the Charter.

(c)         The action against Walter Obodzinsky is taken in the context of the Canadian War Crimes Program, a program that denies the defendant, as a naturalized citizen, "[translation] the consistent application of the law and the same benefits of the law as Canadian citizens by birth, who are not subject to a strategy of fighting or attacking their status for political reasons or alleged suspicions of crime, complicity in war crimes or crimes against humanity". This program, and the action against the defendant, "[translation] constitute discriminatory measures against naturalized citizens and the defendant, which are declared, under the program itself, to be punitive in nature taken for political and/or ethnic reasons and/or because of actual or presumed membership in a particular social group and/or analogous grounds", contrary to section 15 of the Charter and the treatment prohibited by section 12 of the Charter (paragraphs 5 and 6 of the statement of defence).

(d)         The Minister's action is prescribed by the Crown Liability and Proceedings Act or the Federal Court Act, or, in the alternative, it is contrary to the doctrine of laches. The statement of defence states that if the Minister was previously unaware of it, she was informed on July 1, 1993, that Walter Obodzinsky was alleged to have been a member, before joining the Polish Second Corps, of a German unit, the Jagdzug, or other German units and that notwithstanding this knowledge, the action was not filed until February 1, 2000, and is therefore prescribed by law.

(e)         If this was not the case, the defendant submits that the Minister "[translation] delayed unduly in raising her cause of action and accordingly the defendant... is too ill to defend himself, collaborate in his defence, participate in and attend his trial, which warrants dismissal of the action", and, furthermore, Citizenship and Immigration Canada (CIC) has destroyed the immigration and citizenship records for that period, including the file on Walter Obodzinsky, and all the selection officers are deceased (paragraph 18 of the statement of defence).

(f)          Walter Obodzinsky also alleges that at the time of his temporary and permanent admission, Canada had no legal authority to refuse admission on grounds of security even if some security grounds had existed, such as those cited in the statement of claim, that is, membership in some German SS units or as auxiliary police members serving in the German SS units, and accordingly he met all of the conditions in P.C. 3112, and there is no basis for the Minister's action.

(g)         Furthermore, it was in 1950 that he was admitted permanently to Canada and he met all the conditions of P.C. 3112 and the Immigration Act.

(h)         In addition, the statement of defence argues that the Minister is "[translation] now fully informed by a witness who immigrated to Canada under P.C. 3112 (and who is not targeted in the Canadian War Crimes Program) that he was asked nothing about his past before he was admitted under P.C. 3112 and before he was granted permanent admission, like the defendant".

(i)          The statement of defence alleges that at the time his citizenship was granted, Walter Obodzinsky fulfilled all of the conditions of good character provided by the Act and, in the alternative, the allegation that he was not a person of good character when he was granted citizenship for the reasons cited in the statement of claim constitutes a breach of section 15 of the Charter.

4.          Some proceedings taken by the defendant

[42]       During the evolution of this case, the defendant's counsel filed a number of motions in the Court that I will now discuss as substantive elements that will be used in assessing the evidence gathered during the commission to examine witnesses (the commission) and during the trial and will be of assistance in resolving certain questions of law.

(a)         Motion for an order finally staying the proceedings

[43]       On June 27, 2000, Mr. Justice Nadon heard the defendant's motion for an order finally staying the Minister's action and dismissed it in a judgment with reasons delivered October 12, 2000, (Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2000] F.C.J. No. 1675).

[44]       The following reasons were cited in support of the motion:

(a)         the defendant's state of health did not allow him to take part in the trial;

(b)         the disclosure of his citizenship record was belated and incomplete;

(c)         his immigration record has not been disclosed and was destroyed; and

(d)         the proceedings were brought after an undue delay.

[45]       Nadon J. accepted the evidence concerning the defendant's state of health, which was not disputed by the Minister, and concluded at paragraph 9 that his health "is precarious and it would be difficult or impossible for him to take an active part in the ongoing proceedings without making his condition worse". However, he dismissed the defendant's submission that continuing the proceedings would constitute a serious abuse, impair the integrity of the judicial system and create a fundamental injustice and, moreover, result in a breach of the rules of fundamental justice contained in section 7 of the Canadian Charter of Rights and Freedoms (the Charter).

[46]       Relying on the Federal Court of Appeal judgment in Canada (Secretary of State) v. Luitjens, supra, he held that section 7 of the Charter does not apply to the proceedings prescribed under section 18 of the Act, on the grounds that this proceeding did not impair his right to life, liberty and security of his person. He noted that in Luitjens, the trial judge, Mr. Justice Collier, simply ruled that Mr. Luitjens had obtained his citizenship by false representations, a mere finding of fact that did not have the effect of withdrawing his citizenship or deporting him and thereby infringing or threatening his right to security.

[47]       After a lengthy analysis, Nadon J. rejected the defendant's contention that continuing the revocation proceedings would constitute a serious abuse of process, "putting him at risk and subjecting him to a procedure at the end of which his citizenship could be revoked despite his state of health and his inability to defend himself" (paragraph 15). In his view, the doctrine of serious abuse of process, in the circumstances of this case, was inapplicable in the absence of reprehensible conduct by the government, and the evidence did not indicate any such conduct. Nadon J. also dismissed the defendant's submission based on the criminal law, citing cases that had consistently held that the procedure under section 18 of the Act is a civil procedure.

[48]       As to the defendant's argument based on the delay in bringing proceedings, Nadon J. noted that the defendant had argued that the delay was clearly harmful to him as he is now too ill to defend himself. Consequently, the delay affected his right to present a defence and the fairness of the hearing to be held and constituted an abuse by the plaintiff. Nadon J. dismissed this argument, writing at paragraph 36 of his reasons:

Certainly, the defendant's state of health has become worse with time, but this is due to the progression of his cardiac problems and not to the delay of the proceedings in the case at bar. In my view, it is only a coincidence that the defendant's state is what it is at this stage of the revocation proceeding. The fact that the defendant is experiencing difficulties participating in the trial and defending himself is not due to an unreasonable delay, it is because of his health. His health problems are not attributable to any fault by the plaintiff. In my view, the defendant has not shown that the delay in the proceedings caused him harm.

[49]       The defendant appealed the judgment of Nadon J. to the Federal Court of Appeal, which upheld it on May 23, 2001, (Walter Obodzinsky v. The Minister of Citizenship and Immigration, [2001] F.C.J. No. 797). Mr. Justice Létourneau, on behalf of his colleagues, taking into consideration some recent judgments of the Supreme Court of Canada concerning section 7 of the Charter, was of the opinion that Nadon J. had properly directed himself as to the law, and that he had exercised his discretion judiciously after considering the Charter arguments and the submissions based on the doctrine of abuse of process.

[50]       On February 14, 2002, the Supreme Court of Canada dismissed an application to stay the proceeding and an application for leave to appeal the decision of the Federal Court of Appeal in this reference.

(b)         Motion under Rule 220 asking the Court to determine two preliminary questions of law before trial

[51]       In late March 2002, the defendant filed a motion asking the Court to determine, before trial, two preliminary questions of law. He asked that the Court determine whether sections 10 and 18 of the Act, in correlation with certain provisions of the Immigration Act, are consistent with the Bill of Rights and the Charter.

[52]       On June 13, 2002, Nadon J. dismissed this motion (Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2002] F.C.T. 669) on four grounds.

[53]       First, he expressed the opinion, in paragraph 9, that "the questions of law which the defendant is asking the Court to answer are only for the most part a reformulation of the points of law raised by the defendant in connection with his motion for a stay order. This can be seen from reading the memorandum of fact and law filed by the defendant in the Federal Court of Appeal and his application for leave to appeal filed with the Supreme Court of Canada."

[54]       Second, Nadon J. found, in paragraph 10, that the defendant "is again attempting to challenge the merits of the Federal Court of Appeal's judgment in Luitjens v. Canada (Secretary of State)", supra, a decision that the Federal Court of Appeal had recently reiterated in a decision dated November 29, 2001, in Canada (Minister of Citizenship and Immigration) v. Fast, supra.

[55]       Third, Nadon J. explained that the defendant, by his questions of law, "asked this Court to decide on the constitutionality of the revocation procedure set out in ss. 10 and 18 of the Act" and he concluded, at paragraph 12 of his decision:

¶ 12 Since the referral mentioned in s. 18.1 of the Act applies only to a conclusion of fact, namely whether the defendant obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances, I consider that the questions suggested by the defendant are not in any way relevant since, as the Federal Court of Appeal held in Luitjens and Fast, supra, and in Katriuk v. Canada (1999), 252 N.R. 68, the decision made by this Court in connection with s. 18.1 is only a preliminary finding, "which may later form the basis for a decision by the Governor in Council to revoke his citizenship" and consequently such a decision has no impact on the life, liberty or security of the person. [Emphasis added]

[56]       Again citing Luitjens, supra, Nadon J. dismissed a further aspect of the defendant's argument, concerning the second stage of the revocation procedure, namely the decision which the Governor in Council may make. In his opinion, the questions proposed by the defendant were premature.

[57]       Fourth, at paragraph 14, he refused to formulate the questions as requested since, "in view of the applicable case law in this Court and in the Supreme Court of Canada, the answers to the questions suggested by the defendant will not be in his favour and so the determination before trial sought by the defendant will in no way dispose of the case in whole or in part."

(c)         Motion for summary judgment

[58]       By a motion filed on August 5, 2002, under Rule 213 of the Federal Court Rules, 1998 (the Rules), the defendant sought summary judgment on the grounds that the Minister lacked the legal authority to prohibit entry or permanent admission to the defendant under P.C. 3112 or the Royal Prerogative, that the alleged factual misrepresentations had to do with the defendant's temporary admission and not his permanent admission and, lastly, that the Minister's statement of claim should be dismissed in toto as being out of time.

[59]       On September 6, 2002, the motions judge allowed this motion in part, holding that in 1946 there was no legal authority under which Walter Obodzinsky could be refused on security grounds. However, she dismissed his submission on prescription.

[60]       In a decision dated December 20, 2002, the Federal Court of Appeal allowed the Minister's appeal (see Canada (Minister of Citizenship and Immigration) v. Walter Obodzinsky, 2002 F.C.A. 518). I draw attention to the following points in this decision.

[61]       First, Létourneau J.A., for the court, holds in paragraph 25 of his reasons that the motions judge "did not give sufficient weight to all relevant points" in the exercise of her discretion. The motions judge, he says, relied on the decision of Noël J., as he then was, in Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203, who came to the conclusion that no legal authority existed prior to 1950 to reject applicants for admission to Canada on security grounds.

[62]       Létourneau J.A. observes, at paragraph 26, however:

With respect, I feel that the factual and legal situation before the Motions Judge was clearly different from that on which Noël J. made his ruling.

and explains in the following paragraph:

The Motions Judge failed to consider as a relevant and important point the fact that Order in Council P.C. 3112 expressly mentions a representative of the Royal Canadian Mounted Police (RCMP) as a member of the committee to assess Polish candidates for agricultural employment, which was not contained in Order in Council P.C. 1947-2180, which Noël J. had to interpret in Dueck and on which the Minister relied.

[63]       After reproducing the relevant extract from P.C. 1946-3112, Létourneau J.A. states in paragraph 29 of his reasons that in Dueck, Noël J. had specifically noted that in the order in council before him (which was P.C. 1947-2180 and not P.C. 3112), there was no reference to the police force, which led him to conclude that the order in question "indicated concern by the authorities about immigration, as such, not security", and that "it is certainly possible to come to a different conclusion when a representative of the RCMP is specifically assigned to the selection of agricultural candidates, especially when we consider for a moment the origin of the potential candidates", about whom he notes, in paragraph 30 of his reasons:

[30]                                                                                                                                          In fact, the candidates were Polish nationals and the Canadian authorities had reasonable grounds to believe that there were in this group a number of persons suspected of having collaborated with the Nazis before joining the Allied troops and the Resistance.

[64]       In paragraph 32, Létourneau J.A. notes "that the Motions Judge had several documents before her concerning adoption of Order in Council P.C. 1946-3112, tending to indicate the security concerns of the Canadian government about such nationals, and leading to an order dealing with them specifically. The testimony which had not yet been heard at the time the Motions Judge was considering the motion for a summary judgment, and without which she ruled on the question of security, could have provided valuable clarification about the content and scope of the Order in question."

[65]       In the Federal Court of Appeal, the defendant had filed a cross-appeal of two aspects of the motions judge's decision. At paragraph 43, Létourneau J.A. describes the first, to the effect "that the false representations which led to acquiring citizenship should relate to the application for permanent residence, and accordingly that the fact the respondent lied in his application for temporary admission is of no consequence", an argument based on subsection 10(2) of the Act. The second argument is based on the prescription. Both arguments were dismissed by Létourneau J.A.

[66]       In regard to the point based on subsection 10(2) of the Act, he notes, in paragraph 44, that the subsection only creates a presumption and that it "does not have the effect of limiting or restricting the scope of subsection 10(1) and the grounds for revoking acquisition of citizenship". In paragraph 44, he writes that "[q]uite apart from the presumption in subsection 10(2), the Governor in Council may withdraw citizenship from someone when he or she is persuaded that the person has acquired it by false representation or fraud or by deliberate concealment of material circumstances," and that "the presumption in subsection 10(2) is useful, but it does not limit the question of fraud or the use of fraudulent means solely to the time the person was admitted to Canada as a permanent resident."

[67]       In regard to the cross-appeal based on prescription, Létourneau J.A. is persuaded that this objection "resulted both from a misconception and a misunderstanding of the reference procedure in which he was engaged" (paragraph 46).

[68]       He notes that under section 18 of the Act, it is the defendant who requested the reference to this Court, to enable him to refute the allegations in the notice that the Minister has given him. Létourneau J.A. asks, at paragraph 48, "How then can he [the defendant] ask for the termination on the grounds of prescription of a reference he has himself requested for his own benefit?"

[69]       He does not think the prescription can run in his favour as long as he has not made an application for reference to the Court, the facts before the motions judge were not all known, and the defendant was not located in Canada until 1995: "It is thus unlikely that even if prescription could be relied on it began to run prior to that date."

[70]       The defendant has not sought leave to appeal this decision to the Supreme Court of Canada.

(d)         Defendant's objections on the evidence

[71]       The defendant presented me with a motion seeking a declaration that the following were inadmissible as evidence:

(a)         certain documents filed at trial by the Minister; and

(b)         a portion of the testimony and documents presented during the commission.

[72]       I ruled on this motion on February 26, 2003, (see Canada (Minister of Citizenship and Immigration) v. Walter Obodzinsky, 2003 F.C.T. 239) before the date scheduled for the oral argument. I dismissed it and I ordered that the evidence gathered in Commission be placed in the trial record with the exception of some parts of the testimony of Mr. Grigorovich and Joseph Harkavi.

[73]       In short, for the reasons given, I ruled that the documents presented by the Minister were admissible in evidence.

[74]       First, the defendant wanted to exclude the Hare and Shakespeare reports. Mr. Hare was the chief of the Mission. On November 26, 1946, he produced a written report on the team's activities. Staff Sgt. Ken Shakespeare directed the RCMP's efforts within the Mission. He filed his written report on January 4, 1947. Messrs. Hare and Shakespeare died a long time ago. I found that the two reports were admissible either under section 30 of the Evidence Act or under the principles of necessity and reliability as laid down by the Supreme Court of Canada in a number of judgments.

[75]       Second, the defendant wanted to exclude some other immigration documents cited by the experts in their reports, either because these documents were not records within the meaning of section 30 of the Evidence Act or because they involved opinions exclusively. These records are found at tabs 51, 100, 103, 233, 235 and 236 of the evidence produced by the Minister. For example, the defendant had claimed that the document at tab 51, sent by Assistant Commissioner Gagnon of the RCMP to the Under Secretary of State for External Affairs, dated May 16, 1946, concerning the security controls to be placed on future immigrants, was only an opinion and that the documents at tabs 100, 233 and 236 were simply reports of the debates in the House of Commons. For various reasons, I dismissed these objections.

[76]       Third, the defendant wanted to exclude certain historical documents, including:

(a)         a document at tab 10 entitled "Event Report USSR #31`" dated August 23, 1941, from the chief of the security police and the SD in Berlin;

(b)         a report at tab 40 entitled "Overall Report from 16 October 1941 to 31 January 1942", originating from the Einstazgruppen saying it is incomplete; and

(c)         the document at tab 105, a report written on the auxiliary police in Byelorussia and labelled "Minsk, 10 April 1943".

I decided that I could not subscribe to the exclusions sought by the defendant's counsel. With regard to the war documents, such as some reports from field units by the German Army, I concluded that Mr. Justice MacKay had previously ruled on the admissibility of this class of documents (see Canada (Minister of Citizenship and Immigration) v. Oberlander, [1998] F.C.J. 1380) and that the submissions by the defendant's counsel regarding the other documents were erroneous.

[77]       Fourth, there was a category of documents, gathered in the Commission, that the defendant wanted to exclude in the context of Mr. Suchcitz's testimony. The defendant argued that certain comments and records were inadmissible on the ground that his expert witness report made no mention of them and did not deal in any way with these records. I ruled in opposition to these submissions.

[78]       Finally, the defendant objected that a number of answers by witnesses in the Commission were based on hearsay. After analyzing the transcript, I found that the defendant was partly right.

FACTS ADMITTED OR NOT DISPUTED

[79]       I think it is useful at this point to list certain facts on which the parties are agreed, as admitted or undisputed.

[80]       There is no dispute about the precarious state of the defendant's health. He has suffered two myocardial infarctions (1984 and 1999) and currently suffers from stress-induced angina. The defendant's two cardiologists (Dr. Sestier and Dr. D'Avirro) and the Minister's cardiologist (Dr. Burgess) are of the same opinion: "[translation] the patient does not have the cardiovascular capacity to prepare and undergo the trial that is envisaged" (Dr. Sestier); "Mr. Obodzinsky must not be required to attend any court or inquiry as this would entail a high risk of a serious cardiac complication" (Dr. Burgess).

[81]       Wlodzimierz Obodzinsky was granted Canadian citizenship on August 12, 1955, upon presentation of a sworn petition in which he stated the following facts:

(a)         date of birth: May 7, 1919, at Turez, Poland;

(b)         his arrival in Halifax, Nova Scotia from Italy aboard the vessel S.S. Sea Snipe on November 24, 1946;

(c)         his work for two years on contract on a farm in New Brunswick, later settling in Montréal;

(d)         his acquisition of landing (permanent residence) on April 11, 1950;

(e)         his statement that "I am of good character";

(f)          his marriage to Lydia Logodycz on February 24, 1951, in Montréal;

(g)         being known under the name Walter Obodzinsky.

[82]       Walter Obodzinsky admits, in his statement of defence, that he "[translation] was admitted to Canada on a temporary basis in November 1946, in accordance with the conditions that were set out in Order in Council P.C. 3112".

[83]       Walter Obodzinsky's entry to Canada in November 1946 was authorized by a permit of the Minister of Mines and Resources dated November 12, 1946, issued under section 4 of the Immigration Act, 1910. The permit reads as follows:

This is to certify that the Polish citizens named in the attached list are hereby permitted to enter Canada for a period of two years from the date hereof provided they remain employed at agricultural work in accordance with contract entered into with the Department of Labour.

[84]       Section 4 of the Immigration Act, 1910 reads as follows:

4. (1) The Minister may issue a written permit authorizing any person to enter Canada, or having entered or landed in Canada to remain therein without being subject to the provisions of this Act.

2. Such permit shall be in the form A of the schedule to this Act, and shall be expressed to be in force for a specified period only, but it may at any time be extended or cancelled by the Minister in writing; and such extension or cancellation shall be in the form B of the schedule to this Act.

3. A return of all such permits with particulars and names therefor, issued during the year, shall be made by the. Minister to Parliament within thirty days of its meeting. 1924, c. 45, s. 3.

[85]       The name of W. Obodzinsky appears on the list appended to the permit of November 12, 1946, which is entitled "S.S. Sea Snipe Halifax November 24 - 46, Province - Maritimes - Distribution Point - Halifax Group No. 4".

[86]       In his annual report on permits issued under section 4 of the Immigration Act, 1910, the Minister of Mines and Resources adverts to the issuance of permits to the "Polish Veterans" on the ground that "Order in Council P.C. 3112 of July 25th 1946 . . . authorized the entry of Polish veterans to be employed at farm work for a period of two years."

[87]       In support of the defendant's motion for summary judgment, Anita Obodzinsky, the defendant's daughter, filed some personal documentation concerning her father, including:

(1)         Her father's personal identification issued by the RCMP in Italy in 1946. It bears the number 2738 and confirms his date of birth as being May 7, 1919. His fingerprint is affixed to it.

(2)         A certificate issued to her father (PI No. 2738) by the Department of Mines and Resources certifying "that Polish veteran Obodzinsky Wlodzimierz has discharged the undertaking made with the Government of Canada to remain in specified employment for a fixed period of time upon admission to Canada".

[88]       Wlodzimierz Obodzinsky's military notebook, from the Polish Second Corps, was adduced in evidence during the commission to examine witnesses. I reproduce the relevant information it contains:

a)         Birth on the 5th day of July 1919[sic], locality Turzec commune Turzec;

b)         Military specialty and familiarity with weapons systems: infantry rifleman in foreign army / according to his own testimony;

c)         Civilian occupation: farmer according to his own testimony;

d)         Service in foreign army: 2.3.44 - 5.7.1944 in German Army according to his own testimony;

e)         Recruitment results: Recruitment Commission in Italy 4.1.1945;

f)          Record of military service: enrolled in 21 Infantry Battalion on 15.12.44;

g)         Presence at Front, participation in battles: Italian Front from 15.12.44 to 2.V.45;

[89]       During the examination before and after defence, the Minister's representative admitted the following facts:

(i)          some time after his arrival in France, the defendant deserted the 30th Waffen SS;

(ii)         after his desertion, the defendant fought with the Allies, at the time as a member of the Polish Second Corps, against the Axis Forces;

(iii)        when Mr. Obodzinsky applied for permanent resident status, in 1950, the Minister's representative had no reason to think that Mr. Obodzinsky had been questioned about his activities during the Second World War;

(iv)        After Mr. Obodzinsky had filed his application for citizenship, the same representative said he had no reason to think that he had been questioned about his activities during the Second World War (transcript of November 2, 2002, page 162).

ISSUES

[90]       This reference raises the following questions of law and of fact:

1.         Questions of law

(1)         Are the relevant provisions of the Citizenship Act in breach of or incompatible with sections 1(a), 1(b), 2(a), 2(b) and 2(e) of the Canadian Bill of Rights (the Bill of Rights) and sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms and should they be declared inoperative in regard to the defendant and result in the dismissal of the action, or in any other remedy that the Court might consider appropriate and just?

(2)         Is the Minister's action an abuse of office (or abuse of process and/or discriminatory) and thus so unlawful as to be overruled?

(3)         Does the Citizenship Act newly enacted in 1977 effectively make the revocation procedure it contains (its sections 9 and 17 are similar to the present sections 10 and 18) inapplicable to the defendant Walter Obodzinsky, who was naturalized under the old Citizenship Act of 1946?

(4)         Is the action prescribed or subject to the doctrine of laches?

(5)         Were the false representations, if any, made at an irrelevant stage, in Italy during his selection for temporary entry, as the Minister has admitted that the defendant was not reexamined for permanent admission and the granting of citizenship?

(6)         Could his temporary admission to Canada in 1946 have been legally prohibited?

2.          Questions of fact

(a) Pertaining to the defendant's person

(7)         Can the defendant be situated at Turez during the summer of 1941?

(8)         Does the record identify the defendant as an auxiliary police officer during the summer of 1941 at the commencement of the German occupation and subsequently as a police officer at Mir?

(9)         Did the defendant voluntarily join this auxiliary police force?

(10)       Where was this auxiliary police force situated in the hierarchy of the German civilian occupation in Byelorussia?

(11)       Has the existence of anti-Jewish atrocities been proved?

(12)       Is there evidence of the participation of the auxiliary police in these atrocities?

(13)       Is there evidence of the presence of Walter Obodzinsky during one or more of these atrocities in 1941?

(14)       Does the record demonstrate the presence of Walter Obodzinsky in the Jagdzug as chief of a sub-unit?

(15)       Did the Jagdzug participate in atrocities committed against the partisans and civilian population during operations that it undertook alone or with the German Army or the SS?

(16)       Was Walter Obodzinsky present in Germany with the 30th Waffen SS and in France during the summer of 1944?

(17)       Did Walter Obodzinsky desert his German unit and join the French Resistance?

(18)       Did Walter Obodzinsky fight with the French Resistance and the Polish Second Corps against the Germans before the end of the Second World War in May 1945?

(b) Pertaining to the Selection Mission in Italy

(19)       Was the defendant questioned by the RCMP and for what reasons?

ANALYSIS

(1)         Preliminary remarks

(a)         On the evidence

(i)          In the commission to examine witnesses

[91]       The Minister's evidence was taken in two ways: (a) in Commission; and (b) at trial. The defendant's counsel notified the commission that she would not be participating in its proceedings and therefore was not present either to cross-examine the witnesses or to file evidence in reply.

[92]       The commission took evidence from the following witnesses for the Minister:

(ii)         In Byelorussia

(1)         Ivan Ivanovich Biyut, born in 1925 in Jeremichi, situated five kilometres from Turez;

(2)         Boris Ivanovich Gruschevsky, born in 1921, and in 1941 living in a village ten kilometres from Mir;

(3)         Valentina Alexeyevna Keda, born in 1931 in the village of Pogorelka, situated about five or seven kilometres from Turez;

(4)         Nicolai Antonovich Grigorovich, born in 1921 in the village of Labuzi, situated about ten kilometres from Baranowitsche (or Baranovichi);

(5)         Nicolai Zayats, born in 1927 in Turez, and living in that village in 1941.

(iii)        In England

(6)         Anatol Olezkiewicz, born in 1923, and living at Baranovichi in 1939;

(7)         Jan Mazurek, born in 1922 in Mir;

(8)         Leon Bogdan, born in 1922 in Zhukovici, about twenty kilometres from Mir;

(9)         Andrezij Suchcitz, an expert witness on the Polish Second Corps;

(iv)        In Israel

(10)       Joseph Harkavi, born in 1921 in Turez, situated about thirteen kilometres from Mir;

(11)       Zeev Schreiber, born in 1924, in Mir.

[93]       In 1941 Jeremichi was a village of 600 persons. Mr. Biyut often went to Turez, where a number of his family members were living. He testified that he knew Walter Obodzinsky at Turez, and that Mr. Obodzinsky often came to his place to visit his sister (Minutes of Hearing (M.H.), vol. 1, p. 34).

[94]       Mr. Gruschevsky testified about his knowledge of the Mir police in 1941 and about what had happened in this small town of 6,000 souls during the fall of 1941. He testified that he did not personally know Mr. Obodzinsky.

[95]       Ms. Keda was ten years old when the Germans breached their pact with the Russians in June 1941 through the lightning invasion of Byelorussia and the sudden defeat of the Red Army. Ms. Keda remembered and described to us some operations against the partisans in 1942.

[96]       The final event that Ms. Keda shared with the commission took place in 1943 in the forest where her family and several other persons from her village had hidden while fleeing the Germans and the police who, it was suspected, were preparing to burn the village or seize them. They were discovered. She witnessed a shooting of two or three partisans. She told us that one of the chiefs of the police and the Germans was Serafimovich, accompanied by two young men dressed in black uniforms.

[97]       Mr. Grigorovich's story is based on two things: (1) an operation he witnessed against a house in his village that harboured some partisans, and (2) his participation in the Jagdzug from 1943 to the summer of 1944. He did not retreat with the Germans but deserted the Jagdzug.

[98]       The point of Mr. Zayats' testimony was that he was living in Turez in June 1941 during the German invasion and that he was well acquainted with the Obodzinsky family, whose family home was fifty metres from his.

[99]       Mr. Olezkiewicz told us that he was living in Baranowitsche when the Germans invaded this town during the summer of 1941. He said he involuntarily joined the regional police, who served as an escort for the high-ranking German officers. This police force was integrated with the Jagdzug. He says he was forced to collaborate with the Germans.

[100]     In May 1944, the Red Army was on the offensive. Mr. Olezkiewicz testified that he and other members of the Jagdzug retreated toward Germany and, with other units, became the 30th Infantry Division of the Waffen SS, which was then transported to the North of France, where he was captured. He managed to become a member of the Polish Second Corps. He is among those who in May 1946 settled in England.

[101]     There are some unusual aspects to Jan Mazurek's account. Born in Mir, he grew up in Ukraine, was conscripted into the Red Army and was with it in Byelorussia in 1941 at the time of the German attack. Following the rout and disintegration of the Red Army, Mr. Mazurek settled in his country of birth, worked on a farm and in 1942 joined the Polish partisans. He took refuge among the Germans in Mir in June 1942 when the Russian partisans decided to attack the Polish partisans. He met a person by the name of Serafimovich, who offered to induct him in the Mir police. He accepted. Later, in 1943, he entered the Jagdzug, was wounded, and returned to Mir where he lived between the summer of 1943 and the summer of 1944.

[102]     In the face of the Red Army offensive, he accompanied some Jagdzug members to Poland and Germany, entered the 30th Waffen SS, was sent to France, deserted and joined the Polish Second Corps.

[103]     Leon Bogdan testified that during the summer of 1942, he was a conscript in the Mir police, under the command of Serafimovich, a Byelorussian. His uniform was black with grey cuffs and collar. The role of the police was to keep order but also to fight the partisans. He was assigned to several villages in the Mir region.

[104]     He says that during the police anti-partisan operations, a number of teams worked together. One of these operations, in January 1943, took place in the village of Lyadki. He told us that he knew that the family of a partisan there was shot by some police officers whom he saw at a distance.

[105]     In July 1944, the police in the Mir district left for Germany where they put on the green uniform of the German soldiers and were then transported to Dijon. A little later, several of them deserted from the German forces, joined the French Resistance and fought with it for five or six weeks (M.H., vol. 2, p. 103). In November 1944, he became a soldier in the Polish Army after being interrogated about his past activities. He told us he disclosed to the Polish major who was questioning him that he had been a policeman whose role was "to defend our people from the partisan bandits. In our country, there were small farmers and they were taking their clothes, taking their food, they were robbing. That's what they were doing and we were defending the people." (M.H., vol. 2, p. 102)

[106]     Joseph Harkavi now lives in a place close to Tel Aviv. He was born in Turez and studied accounting at Vilnius. He was in Turez in 1939 and in March 1940, at Mir, where he met Serafimovich, then the assistant director of the flour mill at Obrina. He returned to Turez in July 1941 after the invasion of Byelorussia by the Germans.

[107]     He testified about certain events at Turez during the fall of 1941, telling us that he had been forced to work in a mill and in a sawmill in a village north of Turez where, in early January 1943, he escaped to fight with the partisans.

[108]     Another inhabitant of Israel is Zeev Schreiber, who was living in Mir in 1941 at the beginning of the fighting. He described to us the creation of the police stations by the Germans. At the time, he was a painter, working at the home of the police officers.

[109]     As mentioned, the testimony of Andrezij Suchcitz was taken by the Commission in London on October 31, 2002. Mr. Suchcitz is the principal archivist of the Sikorski Museum in London and an expert in Polish military history during the Second World War.

[110]     There were two distinct aspects to his expert's report and testimony: the history of the Polish Second Corps and the personal file of Walter Obodzinsky as a member of this Corps, including the tabling in evidence of his military notebook.

[111]     The Polish Second Corps, under the command of General Anders, was formed during the summer of 1942 by the merger in Palestine of two Polish military units. The first unit, with about 70,000 men, was organized in the USSR during August and September 1941, after the German invasion. The members of this unit were Poles who had been deported to Siberia from the Polish part of Byelorussia in 1939 in the wake of the Soviet occupation. This unit crossed the Persian frontier during the summer of 1942 on its way to Palestine, then under British mandate. This unit was merged with a part of the Polish Army that was already in the Middle East. It was then that the Polish Second Corps was placed, from an operational standpoint, under British Eighth Army command.

[112]     The Polish Second Corps participated in the battle of Rome, seized Monte Cassino on May 18, 1944, and participated in operations on the Adriatic Coast. In January 1945, the Polish Second Corps fought on the banks of the Senio river and liberated the city of Bologna on April 21, 1945.

[113]     Mr. Suchcitz explained to us as well the different components of the program for recruitment of soldiers for the Polish Army in 1944 with the establishment of recruitment centres, especially on French territory. He explained to us that before being incorporated into the Polish Army, depending on the circumstances, the recruit had to report to and be approved by a Polish and/or Anglo-American commission that asked him a number of questions about his past. In this context, he mentioned the directive issued on August 5, 1944, by the Headquarters of the Allied Forces concerning captured Poles who had served in the Wehrmacht or in some paramilitary organizations.

[114]     Mr. Suchcitz affirmed the reliability of Walter Obodzinsky's personal file as a member of the Polish Second Corps and his military notebook that results. The information contained in this military notebook was not disputed at the hearing.

[115]     Walter Obodzinsky's military notebook indicates that on December 15, 1944, he was accepted into the Second Company of the 21st Infantry Battalion of the Polish Second Corps and that he was present and fought on the Italian Front from December 15, 1944 to May 2, 1945.

(ii)         At trial

[116]     The Minister's evidence at trial comes to us from four expert witnesses: two German historians, Dr. Messerschmidt and Dr. Chiari, and two former senior officials in the federal Public Service, Dr. Nicholas d'Ombrain and Mr. John Baker.

[117]     These expert witnesses used the same methodology. They each produced an expert report and, for each proposition set forth in the text, referred to certain historical documents that were admitted in evidence by the Court.

[118]     Doctors Messerschmidt and Chiari specialize in German military history during the Second World War. Their testimony is similar and complementary, so I can summarize their evidence without treating them separately.

[119]     The two German experts place the events that concern us in an historical setting:

(a)         In 1921, after the Treaty of Riga, Byelorussia was divided in two: the Polish part, including the department of Mir and the region of Baranowitsche, and the Eastern territory of the latter known as the Soviet Socialist Republic of Byelorussia (SSRB);

(b)         The annexation in 1939 of the Polish part of the former Byelorussia to the SSRB after the non-aggression pact between Germany and Russia;

(c)         Operation Barbarossa launched by the Germans on June 22, 1941, and the rapid advance of the Wehrmacht over the territory of the SSRB;

(d)         The German occupation of the Baranowitsche region, including the department of Mir, in July 1941;

(e)         The establishment by the Germany military administration of a volunteer auxiliary police force (Ordnungsdienst) recruited from among the inhabitants of this region, which was organized in stations, particularly in the rural villages of the occupied territory;

(f)          The transformation of this auxiliary police under the German civilian administration into a Schutzmansschaft;

(g)         The integration of the Schutzmansschaft within the German occupation police organization and hierarchy in Byelorussia, with Himmler as Reichsfuhrer, and composed of the security police (SS), the SD (intelligence service) and the administrative police, which included at the local level the Gendarmerie under German command. The auxiliary police recruited among the inhabitants of the region (especially of Byelorussian or Polish origin, attached to the rural police stations of the German Gendarmerie), was at the bottom of the organization chart;

(h)         This auxiliary police serviced the German occupation. One aspect of its service was the support it gave to the German policy of extermination of the Jews in Byelorussia and the fight it conducted against the partisans in association with the German armed forces and police.

[120]     As indicated, these two German experts supported their evidence with many references to documentation kept in the German, Polish, Byelorussian and Soviet archives.

[121]     This historical documentation often took the form of reports or directives emanating from the German military authorities themselves, documentation that Mr. Justice MacKay, in Oberlander, supra, characterized as war documents admissible in evidence.

[122]     I need not review all of this massive documentation. Suffice it to say that it addresses such subjects as:

(a)         The need for an indigenous auxiliary police force to support the efforts of the German police in the occupied territories;

(b)         The organization of the Schutzmannsshaften in the occupied territories of the East. This documentation clearly shows that the auxiliary police in the Gendarmerie stations was under the control of the German police on site and that the Schutzmansschaften battalions, such as the Jagdzug, were under the command of the senior authorities of the German occupation army. This auxiliary police was under the jurisdiction of the SS and SD at each level or stage of the German occupation civilian organization.

[123]     I refer here to some war documents of German origin:

(a)         The report of an operation against the partisans, dated July 23, 1942, by Hein, chief of the Gendarmerie in Mir, an operation that included two gendarmes and 27 auxiliary police officers;

(b)         A similar report dated July 29, 1942, of an anti-partisan operation by the Gendarmerie of the Mir station, in which it is reported that a Jewish partisan prisoner "was executed on the spot". This operation was composed of Hein and 20 auxiliary police officers;

(c)         A similar report by Sergeant Hein dated August 13, 1942, on the summary execution of an individual and three other partisans who had been captured and interrogated;

(d)         A report by the chief of the Gendarmerie dated August 26, 1942, entitled "Clearing the Region of Jews", which reads in part:

The Regional Commissar in Baranovichi has given me the general order ... to rid the region of Jews, especially the countryside. As a result of the larger-scale actions carried out in recent months, a very large number of Jews have fled and gone over to the groups of bandits. In order to prevent any further escape, I have got rid of the Jews who were still on hand in the towns of Polonka and Mir. Altogether, 719 Jews were executed. Meanwhile, 320 Jews who had fled during the larger-scale actions were apprehended again by the Gendarmerie posts and summarily executed.

(e)         A report from Mir dated October 1, 1942, on the summary execution of six Jews by a Schutzmansschaft patrol from the department of Mir;

(f)          Report by the protective police in Mir, dated November 15, 1942, of an operation led by three gendarmes and 60 Schutzmanner (auxiliary police officers), which reports the execution of five Jews: "after a brief interrogation, they were executed on the spot and duly buried";

(g)         A report from Mir dated March 11, 1943, to the effect that a number of major anti-partisan operations between March 5, 1943, and March 9, 1943, were supported by the Wehrmacht, the protective police and 60 Schutzmanner in one case and 410 Schutzmanner in another. This report mentions that three villages were burned.

[124]     The documentation presented by the Minister's German experts includes a war document dated July 7, 1943, signed by Major General von Gottberg of the SS, in which he details the planning of a major anti-partisan operation. This operational plan envisages the use of all elements in the German occupation apparatus: the First Brigade of the SS police, four battalions of the Wehrmacht and four battalions of the Schutzmannschaft. That is how Operation Hermann is described by General von Gottberg.

[125]     The evidence also covers the actual progress over several days of Operation Hermann. These reports confirm the use of the Schutzmannsschaft battalions and the auxiliary police, in particular those of Baranowitsche and Turez.

[126]     In his overall report of August 20, 1943, General von Gottberg describes the outcome: Enemy Losses - Killed in battle - 4,280; Prisoners - 654; Workers taken: men - 9,065, women - 7,701, children - 4,178.

[127]     Finally, two reports outline which units were integrated in the 30th Waffen Rifle Division of the SS. They include the former Jagdzug unit in Baranowitsche.

[128]     I will deal with the evidence by the witnesses d'Ombrain and Baker in the same way that I summarized the testimony of Doctors Messerschmidt and Chiari, since their expertise, while different, bears essentially on the same topic - Canada's immigration policy after the Second World War, its security-motivated control system, and in particular its application in the case of the former soldiers, members of the Polish Second Corps in Italy, who participated in the program ratified by P.C. 3112.

[129]     Dr. d'Ombrain is an expert on the internal operating procedures of the Government of Canada and more particularly the decision-making process in the Cabinet, the way in which this process is furthered through the handling of documentation, how decisions that were made were communicated and who was responsible for implementing those decisions. Dr. d'Ombrain worked for twenty-five years in the federal public service, including four as a deputy minister, nine as an assistant deputy minister and for many years within the Privy Council Office, the central agency, coordinating government activity and the implementation of the policies decided by the Cabinet.

[130]     Dr. d'Ombrain was, from 1982 to 1994, Assistant Secretary to the Cabinet for Security and Intelligence and for Machinery of Government.

[131]     Counsel for the defendant objected that his report as a whole was inadmissible on the grounds that it was unnecessary and irrelevant, and for some technical reasons as well. To the degree that I did not already decide them on November 18, 2002, I overrule the balance of the objections to Dr. d'Ombrain's report and testimony. My reading of the decision of the Federal Court of Appeal in this matter, dated December 22, 2002, convinces me that the defendant's objections are without merit.

[132]     Mr. Baker's knowledge is based on his experience during 28 years in the federal Public Service. He began in 1968 as a visa officer stationed in a number of embassies, later becoming a posted immigration program manager. In 1975, he was in charge of the Recruitment and Selection Branch of the Department of External Affairs, and later the department's representative on the drafting committee for the Immigration Act, 1976 and the regulations thereunder of 1978. From 1978 to 1987, he was an immigration program manager in several embassies, becoming Director of Immigration and Refugee matters in the Department of External Affairs, his duties including policy development and liaison with the RCMP and the Canadian Security Intelligence Service (CSIS). From 1990 to 1994, he was Consul and immigration program manager at the Consulate General in New York where, at the time, a new system of security auditing was being implemented. In 1994, he was appointed Director General of the case management branch in the Department of Citizenship and Immigration, where he was responsible for solving difficult and complex cases. He retired from the Public Service in 1995.

[133]     As I indicated, the evidence of Dr. d'Ombrain and Mr. Baker is similar and I will summarize it jointly. Part of their testimony touches on the way in which the Mission to Italy carried out its terms of reference and, in doing so, they relied on the Hare and Shakespeare reports and on a number of historical background documents.

[134]     The idea of a Canadian program for the admission of 4,000 soldiers from the Polish Second Corps was raised in May 1946 in London by Prime Minister Atlee during a meeting of the Commonwealth prime ministers. Mr. Atlee asked the Canadian prime minister, Mackenzie King, for Canada's assistance in the wake of the demobilization of the Second Corps and the realization that its members refused to be repatriated to Poland, then under Soviet domination.

[135]     The Prime Minister of Canada gave his agreement in principle and the Cabinet, at its meeting of May 22, 1946, asked the Minister of Labour and the Minister of Mines and Resources (who, at the time, had responsibility for immigration) to develop a plan and report on it, which the two ministers did on May 24, 1946. Their plan is reflected in a memorandum to the Cabinet prepared by Arthur Heeney, then Clerk of the Privy Council and Secretary to the Cabinet, which the Cabinet ratified on May 29, 1946.

[136]     I reproduce the relevant parts of this memorandum:

3.     If the demobilized Polish soldiers can be carefully selected and dealt with somewhat along the lines indicated hereunder, it is recommended that the plan be proceeded with and that they be assigned to agriculture to take the place of the German prisoners of war.

Briefly the arrangements might be somewhat as follows:

(a) the number be limited to 4,000; single men only who will agree to accept direction to agriculture or similar work for a period of three years and enter into an individual contract to this effect;

(b) ...

(c) a meticulously careful selection should be made on grounds of medical fitness; security (no Nazis or agents); and suitability for agricultural work, and in this connexion, it is proposed that three senior officials be sent to select them: one from the Mounted Police, to check up on security; a medical officer and an agricultural employment officer who knows the type of men required;

(d) they would be given temporary status until the three year period was up and subject to good behaviour during the three years they could then be given permanent status.

                                                                      . . .

In order that the details might be developed, a small inter-departmental committee might be set up, consisting of the Deputy Minister of Labour, the Director of Immigration and Commissioner Wood of the Royal Canadian Mounted Police. [Emphasis added]

[137]     The particulars of the program were discussed and negotiated with England, the most difficult question turning upon England's obligation to accept the return to England of Poles admitted to Canada under the program who, for some reason, no longer wanted to participate, were required to leave Canada or were no longer fulfilling their contractual obligations.

[138]     The program as negotiated between Canada and England was, once again, examined and approved by the Cabinet at a meeting on July 16, 1946, which authorized the adoption of Order in Council P.C. 3112.

[139]     The Mission was organized quite quickly. It went to London on August 18, 1946, for consultations with the War Office and with MI5 ("to discuss the question of investigations to be made concerning any doubtful Polish applicants under this program": see the Shakespeare report, paragraph 4). The selection process began at Porto Recanati on August 29, 1946.

[140]     This program, which authorized the temporary admission of the 4,000 Polish soldiers, was developed during a period in which the Government of Canada, immediately after the Second World War, was just beginning to develop a new immigration policy focussed on the fate of several million displaced persons and the need for a labour force adapted to a peacetime economy.

[141]     The question of security pertaining to immigration or the temporary entry to Canada, for example of tourists, was on the order of the day. I summarize here the major stages in the development of an immigration security policy, including screening for security and the relevant implementation criteria.

[142]     Access to permanent residence for 3,600 refugees admitted to Canada as non-immigrants since the outset of the Second World War represented the first test. The Minister of Mines and Resources, J.A. Glen, discussed this in his memorandum to the Cabinet on October 15, 1945. He made the following recommendation:

It is, therefore, recommended that appropriate action be taken to provide authority for the permanent admission to Canada of the refugees described in this memorandum, subject to the proviso that only those granted a clearance from the Royal Canadian Mounted Police be eligible for a landing within the meaning of the Immigration Act, those not qualified for such clearance to continue under their present status until their cases can be finally disposed of. [Emphasis added]

[143]     On October 25, 1945, the Cabinet endorsed Mr. Glen's proposal. In a memorandum dated September 20, 1946, to Norman Robertson, Under Secretary of State for External Affairs, concerning the Cabinet decision of October 25, 1945, referring to screening by the RCMP and the Order in Council issued the following day (P.C. 6687, October 26, 1945), Arnold Heeney wrote:

4.     You will observe that the Order in Council, which, of course, embodies the only "law"on the subject, makes no reference to security vetting. At the same time, it is quite clear that the Cabinet, having approved the Minister's supporting memorandum, intended that "landings" should only be granted by the officials concerned to those who had been cleared by the R.C.M. Police.

5.     In my opinion, therefore, clearance by the R.C.M. Police was an administrative and not a legal requirement for the issue of landing documents to persons coming within the terms of the Order in Council. [Emphasis added]

[144]     This security screening concern was discussed at an informal meeting of senior officials in the Department of External Affairs on February 6, 1946. Here is what the minutes say on the subject of "security aspects of immigration":

Security

1. The meeting considered that the following activities would be evidence of an unsatisfactory security background:

(a) collaborating with the enemy during the war of 1939-1945;

                                             . . . [Emphasis added]

[145]     On May 16, 1946, Deputy Commissioner Gagnon, who was responsible for criminal intelligence in the RCMP, wrote to Laurent Beaudry, Assistant Under Secretary of State in the Department of Foreign Affairs:

There are an extremely large number of Europeans who are anxious to immigrate to America and especially to Canada ... Many of these, thousands of them, would be good and desirable citizens, but there are also many thousands who would be most undesirable. We are advised, and have reason to believe, that several hundred thousand Nazis and Fascists collaborators in Europe find it difficult to place themselves amid hostile compatriots and are anxious to go abroad and to come to Canada. This type of person is hardly desirable. [Emphasis added]

[146]     Deputy Commissioner Gagnon saw a need to screen for security and referred to some subsections of section 3 of the 1910 Immigration Act that prohibited the entry to Canada of certain classes of persons.

[147]     On the following day, the Cabinet defence committee endorsed a recommendation from, inter alia, the RCMP that a security committee be set up under the chairmanship of the secretary to the Cabinet, including a representative of the Department of External Affairs and the RCMP, with a mandate to coordinate the planning, organization and implementation of security measures. At its meeting of May 22, 1946, the Cabinet backed this proposal.

[148]     The Security Committee, at its second meeting held on July 8, 1946, began looking at the issue of immigration security, and formed a subcommittee to study an issue raised by A.L. Jolliffe, the assistant director in the Immigration branch of the Department of Mines and Resources who had expressed the opinion that "doubt existed as to whether existing immigration regulations provided authority for the refusal of entry of persons deemed undesirable from a security point of view and, if the situation demanded it, some new procedure would have to be devised."

[149]     In a memorandum dated July 5, 1946, Mr. Jolliffe said that, on the issue "to what classes should screening be applied", he had concluded, as a result of several discussions in the Department of Foreign Affairs, the RCMP and his own department "regarding the possibility of undesirable aliens entering Canada", that:

1.     Persons entering Canada are either immigrants or non-immigrants; the screening of alien immigrants would be comparatively simple as under existing regulations, all such immigrants, other than United States citizens, require a passport and visa. The visa would be refused the immigrant reported undesirable on security grounds. [Emphasis added]

[150]     Two proposed amendments to the 1910 Immigration Act were drafted for the purpose of strengthening the government's authority over security in immigration matters. One amendment would have added a new prohibited class of persons who had belonged to the "Nazi Party ... the Fascist Party ... the Gestapo ... the Schutzstaffel ... the Sturm Abteilung ... any organization or party auxiliary to or supporting Naziism or Fascism or persons classified as war criminals by the United Nations' War Crime Commission". The other proposal would authorize the Minister of Mines and Resources to issue a certificate refusing an applicant's entry to Canada on security grounds.

[151]     At its meeting of August 5, 1946, the Cabinet decided not to proceed with either of these statutory amendments. It concluded:

Consideration had been given to the possibility of inserting some general principle to cover all such groups but in view of difficulty in drafting a suitable clause, it was proposed not to include any special prohibition of this sort. The problem could be dealt with by other means. [Emphasis added]

[152]     In a memorandum dated September 18, 1946, to Mr. Jolliffe, now Director of Immigration, the Under Secretary of State for External Affairs returned to the question of how the RCMP would carry out its mandate to screen applications for entry to Canada for security purposes. He noted that in the Orders in Council authorizing landing in Canada (and in this case he referred to P.C. 6687) there was no mention of the RCMP. He explained:

In adopting the Memorandum the Cabinet accepted the proviso whereby clearance by the RCMP is a condition precedent to the "landing" of a refugee under P.C. 6687. It appears clear, therefore, that the intention in security cases is not to require proof that a refugee falls within one of the prohibited classes in order to withhold such "landing". [Emphasis added]

[153]     The task force responsible for developing the screening system decided, on October 23, 1946, that an RCMP officer should go to London to examine the 6,000 outstanding applications and approve or reject them as the case might be. The letter of instructions received by Sgt. Hinton of the RCMP before going to London included the following clauses:

10. All reports both to Immigration Department and this headquarters will be classified as "secret".

11. In deciding what factors render a potential immigrant undesirable you will be guided by the verbal instructions given at this headquarters. You will also pay attention to any additional information you may be able to secure from your U.K. contacts as to the background and status of any organizations which have not been specifically dealt with or with which you may not be acquainted.

12. The objective is to deny admission to any persons who, from their known history and background, would be unlikely to adapt themselves to the Canadian way of life and to our system of Democratic government. [Emphasis added]

[154]     The Minister says the Hare and Shakespeare reports, and the documentation associated with these reports, are of assistance in understanding how the Mission selected the candidates from the Polish Second Corps for the program authorized by P.C. 3112.

[155]     A difficult issue arose at the outset. The Chief of Mission requested Ottawa's opinion in a telegram received September 9, 1946, by his deputy minister:

4.      As a result of interviews, find that approximately 15% of applicants prior to joining Polish Corps were conscripted into the German Army or work camps after the fall of Poland, in many cases under threat to their families. These men joined Polish Corps after hostilities, but prior to enlistment in Polish Corps, were carefully screened by Polish Corps staff. These men are young and good material, and loyalty will be carefully checked by Mission if authorized by Canadian Government to give consideration to these men. Request Canadian Government attitude regarding their acceptance. Would point out that, if these men cannot be accepted, number suitable and available in Italy will be less than 4,000. [Emphasis added]

[156]     The Minister of External Affairs answered on September 11, 1946:

Reference: Your inquiry re Polish soldiers formerly conscripted into German Army or German work camps. Under no consideration should any of these men be accepted to come to Canada. [Emphasis added]

[157]     This decision of the Government of Canada was taken very badly by the headquarters of the Polish Second Corps in Italy; it demanded a suspension of the selection process between September 13, 1946 and September 23, 1946, hoping that the Canadian position would change following representations by the Second Corps to the British authorities, who themselves were exerting pressure on the Canadians.

[158]     The following extract from a telegram sent to the War Office in London by an English officer in the Allied Forces Command in the Mediterranean (CMF), dated September 17, 1946, accurately summarizes the situation, in my opinion:

Canadian Government's decision cabled to Mr. Hare Chief of Canadian Mission here, that it cannot accept men who were formerly in German Army or labour camps has caused much concern among Polish Corps with result that process of screening is now held up.

We appreciate that the Canadian government has no doubt strong reasons for the restriction and that it may well have to be accepted. Nevertheless its imposition inevitably bars a large number of Poles who fought actively against Germany and who undertook the additional risk of deserting the German Forces in order to do so. Its effect is also to limit to about 2,000 the total number of unmarried Poles eligible for resettlement in Canada according to Mr. Hare's calculations. There is a danger also that the exclusion of Poles who fought for allies but who were originally in Wehrmacht may become a precedent in resettlement with the result that a large proportion of the Corps who might be settled abroad would be left on our hands as a British responsibility.

I have instructed 2 Pol Corps that screening of those Poles who are eligible for acceptance by Canada must continue as a matter of urgency. Meanwhile, request that the Canadian government be asked if they can find a way to accept Poles who actually fought for allies in Italy and who are otherwise eligible. Matter if[sic] urgent as it is likely to effect speed and efficiency of transfer of remainder of Polish Corps from Italy to U.K. [Emphasis added]

[159]     On September 18, 1946, Mr. Hare wrote to the Deputy Minister of Labour in Ottawa concerning the instructions he had been given on September 11, 1946. Here is what he observes and how he interprets them:

Members of 2nd Pol Corps fall into the following categories:

1.     Poles who joined General Anders in Middle East before 1943.

2.     Poles who were conscripted in the German Army or labour camps and who subsequently escaped and joined the Pol Corps and were in action with Pol Corps against the Germans.

3.     Poles who served in German Army and were taken prisoner by Allied forces and after screening joined Pol Corps and were in action against the Germans.

4.     Poles who served in German Army were taken prisoner by Allied forces and after the termination of the war in the European zone were taken into Pol Corps.

5.     Poles who lived in Poland during the war participating in underground activities and after the European war joined the Pol Corps in Italy.

6.     Poles who remained on their farms more or less unmolested and after the European war ended made their way to Italy.

7.     Poles who were taken prisoner by the Germans in 1939 and remained interned to the end of the European war and were subsequently taken into Pol Corps in Italy.

The mission's interpretation of your message exclude from our program all those falling outside category 1 and 5. Since receipt of your message, we have continued selection on basis of instructions contained therein.

This procedure not acceptable to 2 Pol Corps as they consider discrimination will lower morale of Pol Corps personnel. The 2 Pol Corps consider loyalties and war service equal in all categories and ask that no such discrimination be made.

We advise the 2 Pol Corps that on that basis, your instructions we have no alternative. Two Pol Corps intimates that under the circumstances, they could not submit further applicants for selection and ask that we put the matter before our government for consideration.

Pending receipt of advice from Canada, selection operations have been suspended in meantime. The problem has been referred to GHQ CMF Caserta. Procedure by the selection mission on basis of present understanding would we believe result in only 1,500 to 2,000 selectees from those available in Italy and might create embarrassing situation. Selections only can be renewed on receipt of your further instructions. [Emphasis added]

[160]     S/Sgt. Ken Shakespeare had sent a similar message to the Commissioner of the RCMP on September 17, 1946.

[161]     On September 20, 1946, at Canada House in London, the British authorities responsible for the transfer of the Polish Second Corps from Italy to England met with the Canadian authorities in the High Commission. The minutes of this meeting state: "[T]he purpose of the visit was, in brief, to inquire whether the Canadian Government would not reconsider its decision to exclude from the 4,000 immigrants all of those Poles who had been conscripted into the German army or into German work camps."

[162]     The two senior English officers "pointed out that a large number of such Poles who are, it is said, of excellent type, have already been selected by the Canadian Polish Movement Unit. These Poles found themselves after the joint German and Soviet advance into Poland in regions of Poland which had been actually annexed by Germany and therefore in the position of being German subjects liable as such to forceable conscription into the German forces. They escaped wherever possible, often at great risk to themselves, and many of them fought very gallantly and at very heavy cost at Bologna where 1,000 of them are buried."

[163]     Following this meeting, the Canadian High Commission sent a telegram to the Department of External Affairs on September 21, 1946, which I reproduce:

1.     The War Office have expressed to me their concern over decision to exclude Poles conscripted into German forces or work camps and feel the points in my telegram under reference may not have been fully appreciated. In addition to the effect on our own scheme and the danger of creating a precedent for other resettlement, the resettlement and Corps scheme may be jeopardized by loss of faith in British intentions and likewise any further scheme devised to solve the general problem.

2.     It has been pointed out also that actual annexation of Poland made many Pol subjects of Germany and thereby liable for compulsory service. Among 2nd Polish Corps are large numbers who deserted at first opportunity and fought gallantly for the Allies, often earning British decorations.

[164]     In paragraph 77 of his expert's report, Nicholas d'Ombrain tells us that Hume Wrong, then the Assistant Under Secretary of State for Foreign Affairs, suggested a solution to the Minister of Foreign Affairs and the Prime Minister that was adopted and communicated to the Mission on September 28, 1946, as follows:

2.     The following are the instructions of the Canadian Government to the Canadian Polish movement unit:

It is agreed that we should accept persons not only from that group of Poles who deserted from German units and fought against the Germans in the war, but also from those who took part in active hostilities against the Germans after having been taken prisoner by the Allied Forces while serving in the German Army. The criterion should be active participation in hostilities against the Axis. Under this, the only groups barred would be those who joined the Polish Corps after the end of hostilities. This decision required no amendment to Order-in-Council P.C. 3112 which authorized the admission of "4,000 single ex-members of the Polish Armed Forces who served with the Allied Forces engaged in hostilities against the Axis powers.

3.     You should immediately recommence the interviewing and selection of these men on the basis of the above decision. If you are unable to fill the total quota from the Polish Corps in Italy, an offer will be made to complete the quota from the Polish Corps in the United Kingdom. If this fails, the Canadian Government may reconsider its decision that married men be excluded from the scheme. [Emphasis added]

[165]     I conclude this aspect of the evidence by reproducing a lengthy extract from the report of S/Sgt. Ken Shakespeare on the way in which the RCMP performed the task that had been assigned to it by the Cabinet:

22. Work at selection commenced at this point on the 29th of August. Conditions were not favourable, accommodation being inadequate but in view of the desirability of starting work without further delay, the Mission decided to commence work immediately after making a request that improved facilities be placed at our disposal. The men presented for examination were those who had received a preliminary screening by the Poles from the original number of 8,000 applicants. This screening had resulted in 4,500 being assembled at different points, allowing for a 10% rejection by the Mission. On the basis of this information it was expected that the work of the Mission would proceed smoothly and expeditiously, however, after the first day's work it became obvious that such would not be the case as a large percentage of those presented were not as we had expected, veterans of the original 2 Polcorps. Our information had been that all members of the 2 Polcorps were men who had joined this military organization in 1942 when it was originally formed by General Anders in Teheran from men who had, in 1939, been transported to Russia and who were released by the Russians under a treaty entered into between USSR and General Anders. It was ascertained that the 2 Polcorps was cosmopolitan in its composition including men who had fought in the German army or who had worked in German labour camps and others who were more properly categorized as displaced persons, and who had joined the Polcorps under the various circumstances outlined below.

(a) Genuine Polcorps veterans who had fought with the Corps since its organization.

(b) Poles who had served in the German Armed Services. (These fall into three categories) (a) Those who deserted and joined the 2 Polcorps and subsequently were in action against the Germans. (b) Those who were taken prisoner by the Allies and subsequently joined the Polcorps and were in action against the Germans. (c) Those who were taken prisoner by the Allies and joined the Polcorps after the cessation of hostilities.

(c) Poles who were employed at compulsory labour under German authority and who subsequently made their way to Italy and joined the Polcorps after the cessation of hostilities.

(d) Poles who remained in Poland throughout the war and took part in underground activities against the Germans and who after the end of the war made their way to Italy and joined the Polcorps.

(e) Poles who were in concentration camps in Poland and Germany and who after release by the Allies, joined the 2 Polcorps in Italy after the cessation of hostilities.

(f)    Poles who were taken prisoner by the Germans in 1939 and who were reportedly kept in POW camps throughout the war and who upon being released by the Allies made their way to Italy and joined the Polcorps.

23. When this fact became apparent, the matter was discussed by the Mission and it was decided that Ottawa be informed and that instructions be requested. Meanwhile, selection proceeded on the basis that those having seen service with the Germans in any capacity, should be placed on a reserve list. On security grounds it was suggested that only those persons falling within categories (a) and (d) appeared to be acceptable under the Mission's program as we could not satisfy ourselves of the bona fides of those persons falling within the other categories. At this point, it became apparent that the original plan of two teams working at widely separated points was not pacticable and it was decided that the work of selection would be expedited by all selection personnel working together.

                                                                      . . .

27. No suitable hotel accommodation being available, at Cesena, the Mission was based at Riocioni, which before the war was a fashionable seaside resort made popular by Mussolini who had a villa there. It was necessary for the Mission to drive 25 miles to Cesena daily. The work of selection commenced at Cesena on September 30th and carried on without particular incident to October 7th when cabled instructions were received from Ottawa which read in part:

"It is agreed that we should accept persons not only from that group of Poles who deserted from the German Units and fought against Germans in war but also those who took the first available opportunity of engaging in hostilities against Germans after having been taken prisoner while serving in the German Army. Criterion should be actual participation in hostilities against the Axis. Under these only groups barred would be those who joined the Polcorps after end of hostilities."

These instructions enlarged the field of selection and was gratefully received by the 2 Polcorps. It did not however, meet their full approval as they contended that it was unfair to many of the members of the Polcorps who were enlisted therein after the cessation of hostilities but who had contributed in some part to the Allied war effort whilst they were living in countries under German domination. Under the circumstances our instructions proved analogous [ambiguous] which caused the Mission some concern for the following reason. The instructions regarding the date of entry into the Polcorps were restrictive whereas the criterion quoted was a loose one inasmuch as some Poles had participated actively against the Axis but had not joined the Polcorps prior to the date quoted. Mr. Hare, Lt. Col. Parley and myself consulted on this point and decided that the Mission was bound to interpret the instructions regarding the date as mandatory and regard the criterion merely as an adjunct to these instructions. The Poles, who are masters of equivocation, quarrelled with our interpretation and Gen. Odzierzynski and his staff endeavoured to halt proceedings again until the point had been cleared. Mr. Hare advised by Lt. Col. Parley and myself, refused to compromise and insisted on selection continuing. Our decision was dictated by the necessity of finishing our work in Italy with as much despatch as possible having regard to the delays already occasioned by the Poles themselves and having in mind that at that time we had been instructed to proceed to the United Kingdom to complete selection.

                                                                      . . .

30. The procedure adopted in screening applicants was necessarily based on the information contained in military records. The individual applicant presented his confidential Army book, to which was attached his original application under this program in Polish and an English translation thereof. Through an interpreter he was questioned as to the circumstances under which he joined the 2 Polcorps and as to his background and activities prior to that time. In the case of men who joined the 2 Polcorps in 1941 and 1942, the procedure was comparatively simple, where a man joined the Polcorps after service in the Wermacht or in German labour corps, it was of necessity more prolonged. In these latter cases, we worked on the assumption that if he had been in the German Army prior to certain dates, 1942 in the case of Poles from Upper Silesia and Pomerania and 1944 in the case of Poles from Eastern Poland, they had joined the German Army voluntarily and had undoubtedly declared themselves as Volksdeutsch and proceeded accordingly. In many cases we succeeded in extracting from these persons an admission to this effect and they were rejected. In other cases where we were not satisfied with their explanation we rejected them on principle. Many of these were young men whose parents had found it expedient to declare themselves Volksdeutsch, and had included the names of their children in the declaration. Consequently, the children had been called into the Army immediately they were considered old enough which in many cases was 16 years. One could not help but sympathize with the position of these young men but in the circumstances in which we found ourselves placed, it was felt that no consideration could be given to these cases in our program. Other cases came to our attention where young Poles had been allowed to remain at school until they were 20 years of age, even in areas under strict German domination. In these latter cases, although we were unable to establish it, there was an indication that such a circumstance could only exist through influence and they were rejected on these grounds. For the most part, the applicants were fundamentally of the simple, peasant type and in no case did any of them appear to be highly politicized. They were however, one and all bitterly opposed to Communism and when they were warned to refrain from political activities in Canada, and were advised to beware of the Communist propaganda agent who might approach them, they appeared to be sincere in their vehement denunciation of everything Communist. These men have only a minimum of education but their experience during the past seven years and their association with peoples of many lands, tend to remove them from the ignorant masses of Central Europe and they can be expected to be fully aware of what they consider their rights and most likely will be susceptible to the insidious propaganda which will be directed their way, particularly if they become dissatisfied with the conditions under which they work or if they consider the terms of their contracts too binding. [Emphasis added]

2.          Legal framework at the time

(a)         In immigration matters

[166]     As indicated, it is the Immigration Act of 1910, in force until 1952, that governed the temporary entry of the defendant in 1946 and his acquisition of permanent residence in 1950 (see Bogutin, supra, paragraph 123).

[167]     Canada's immigration policy between 1931 and 1952 was based on sections 3 and 38 of this Act.

[168]     Section 3 established the prohibited classes and provided that no immigrant, passenger or other person shall be permitted to land in Canada if he belongs to one of the prohibited classes, which include idiots and imbeciles, persons afflicted with tuberculosis, immigrants who are dumb or blind, persons who have been convicted of, or admit having committed any crime involving moral turpitude, prostitutes, persons who believe in or advocate the overthrow by force or violence of the Government of Canada, persons who are members of or affiliated with any organization entertaining or teaching disbelief in or opposition to organized government and enemy aliens or persons who have been enemy aliens.

[169]     Section 38 of the Act authorized the Governor in Council, by proclamation or order, to prohibit the landing in Canada of any immigrant or passenger.

[170]     By order in council, the Governor in Council establishes the classes of persons eligible to enter Canada either as immigrants or as non-immigrants, such as tourists and students. As John Baker puts it, and I accept his testimony, "eligibility" means being qualified to be considered for selection. The criteria under section 3 and the security criteria affect admissibility once eligibility is recognized.

[171]     During the relevant period, the basic order in council was P.C. 695 of March 21, 1931, made by the Governor in Council during the economic crisis of the Great Depression that began in 1929. Under this order in council, very few classes of persons were eligible; the order limits them to British subjects and American citizens having sufficient financial means, and agriculturalists having sufficient means to farm together with their near relatives.

[172]     The first expansion of the classes of immigrants eligible for entry to Canada was, as indicated, that of the 3,500 refugees who had entered Canada as non-immigrants during the war. This expansion was expressed in P.C. 6687 of October 26, 1945. These refugees were subject to security screening.

[173]     Subsequently, the Governor in Council issued the following orders in council making certain persons eligible:

(a)         P.C. 3112 of July 26, 1946;

(b)         P.C. 2017 enlarging the class of near relatives;

(c)         P.C. 371 of January 30, 1947, making certain sponsored farm workers eligible; and

(d)         P.C. 2180 of June 6, 1947, and P.C. 2856 of July 18, 1947, making persons displaced during the Second World War eligible.

(b)         In citizenship matters

[174]     Walter Obodzinsky acquired his Canadian citizenship in 1955. It is therefore the Canadian Citizenship Act of 1946 that applies in regard to the substantive law, and the Citizenship of Canada Act of 1976, which replaced it and was in force in 1999, in regard to the revocation procedure. (See Bogutin, supra, paragraph 116.)

[175]     Under section 10 of the 1946 Act, the Minister could, at his discretion, grant a certificate of citizenship to any person who makes application for that purpose and satisfies the Court that he has been lawfully admitted to Canada for permanent resident therein and that he is of good character. This Act contains a Part III entitled "Loss of Canadian Citizenship". Among the provisions of Part III, there is section 19, which states that the Governor in Council may, in his discretion, order that any person shall cease to be a Canadian citizen if, upon a report from the Minister, he is satisfied that the said person has obtained a certificate of naturalization or of Canadian citizenship by false representation or fraud or by concealment of material circumstances. Subsection 19(3) provides that the Minister, before making a report under this section, shall cause notice to be sent to the person in respect of whom the report is to be made, and if said person so claims in accordance with the notice, the Minister shall refer the case for inquiry by a commission constituted for the purpose by the Governor in Council upon the recommendation of the Minister, presided over by a person appointed by the Governor in Council who holds or has held high judicial office.

3.          Conclusions

(a)         On questions of law

(i)          Abuse of office

[176]     The defendant submits that the Minister's action is substantively in error, an abuse of office that in this case involves the use of the power of revocation in the Citizenship Act for an improper purpose or a purpose other than the one contemplated by Parliament.

[177]     The abuse is rooted in the strategy adopted in 1995 by the Canadian government concerning war crimes committed during the Second World War.

[178]     The defendant argues that this strategy involves the use of the revocation procedure against naturalized Canadian citizens who are alleged to be war criminals in order to punish them and purge Canada of these individuals on political grounds.

[179]     This misuse of the Act is manifest in the following extract from a document issued by the Government of Canada, entitled The Investigation of War Crimes in Canada, which describes the key criterion in the proceedings.

The key criterion in all these proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered. Where there is such evidence, the decision on the appropriate option will depend on the differing burdens of proof required for each option.

[180]     There is an abundant line of cases in Canada recognizing the principle of abuse of office in the context of the exercise of discretion. A statute must be used for the purpose and intention envisaged by Parliament (see [1959] S.C.R. 121">Roncarelli v. Duplessis, [1959] S.C.R. 121; [1978] 1 S.C.R. 458">Prince George (City) v. Payne, [1978] 1 S.C.R. 458; Re Multi-Malls Inc. & Minister of Transportation, (1977), 14 O.R. (2d) 49).

[181]     Parliament's intention in providing, in the Citizenship Act, a procedure for revocation of citizenship where it was acquired by false representation, fraud or concealment is clear, it seems to me. A Canadian citizen whose citizenship was acquired by fraudulent means cannot enjoy the benefits of such citizenship, the most important of which, I would have thought, is the right to remain in Canada and to pursue the gaining of a livelihood in any province (see section 6 of the Charter).

[182]     It seems to me that the following two extracts from the Supreme Court of Canada decision in Canada v. Tobiass, [1997] 3 S.C.R. 391, are relevant. It will be recalled that in Tobiass, supra, the issue was whether a definitive stay of proceedings in an action in revocation of citizenship was an appropriate remedy in the circumstances, a serious infringement of the appearance of judicial independence having been demonstrated. The Supreme Court held that a stay of proceedings was not an appropriate remedy in that case.

[183]     At paragraph 93, the Court states:

¶ 93 ... Third, Canada's interest in not giving shelter to those who concealed their wartime participation in acts of atrocities outweighs any foreseeable harm that might be done to the appellants or to the integrity of the system by proceeding with the cases. To the extent that he thought otherwise, the trial judge was in error.

[184]     On the issue of whether the interests of society prevail over the stay of proceedings, I reproduce paragraphs 108 and 109 of the Court's judgment:

¶ 108 Perhaps the first thing to notice is that what is at stake for the appellants in this case is arguably different from what is at stake for the typical accused in the typical criminal case. The state is trying to deprive the appellants of their citizenship and not of their liberty. Canadian citizenship is undoubtedly a very "valuable privilege" (see Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, at para. 72). For some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty. Yet for most, liberty is more valuable still. Therefore, the interests on the appellants' side of the balance do not weigh quite so heavily as they would if the proceedings were purely criminal in nature.

¶ 109 On the other side of the balance, society's interest in having a final decision on the merits is obvious. It is imperative that the truth should come to light. If it is not proven that the appellants did the things they are said to have done, then they will retain their citizenship. But if some or all of the alleged acts are proven then the appropriate action must be taken. What is at stake here, in however small a measure, is Canada's reputation as a responsible member of the community of nations. In our view, this concern is of the highest importance.

[185]     In my opinion, the evidence relied on by the defendant's counsel to prove an abuse of office as an abuse of discretion does not justify the conclusion that is sought, and to act on it would distort the reality of the strategy of the Government of Canada.

[186]     In the first place, Canada's strategy is not limited to war crimes committed during the Second World War. The document The Investigation of War Crimes in Canada, in its very first paragraph, states that Canada's commitment "is unequivocal and not restricted by time, place or conflict". The report, which is cited by counsel for the defendant, was a special report that outlined the investigative process that is being followed in regard to cases that go back to the Second World War.

[187]     Second, the defendant appears to be complaining that an investigation has been opened against him. The evidence does not warrant such a conclusion. The following paragraph of the report, at page 6, seems right to me:

Allegations about war criminals living in Canada are made by both domestic and foreign sources. The initial step is to collect as much personal data on the suspect as possible, using traditional police sources. In the case of foreign allegations, it must first be shown that the person is alive and living in Canada. The second step is to verify that the person is connected to the allegation.

[188]     Third, the strategy is conscious that Canada's laws provide the Government with certain procedural options. Under the heading "Making the Decision to Prosecute, Denaturalize or Deport", it is written:

All cases are investigated with regard to the possible criminal and civil litigation options: prosecution, denaturalization and deportation. Prosecution is the preferred option. If the criminal option is selected, no civil poceedings will be considered until after the court proceedings are concluded. If prosecution is not possible, the civil options of denaturalization or deportation, depending on the status of the suspect in Canada, will be evaluated for those cases where the individual obtained citizenship or entry to Canada through demonstrable fraud. Some of the evidence needed for prosecution will also be relevant to the civil options. [Emphasis added]

[189]     Fourth, I interpret the criterion of the existence of some evidence of individual criminality as related to the criminal prosecution. I think the context in which this criterion is identified points to this conclusion.

[190]     Fifth, the report recognizes, at page 8, that the abandonment of the criminal option does not automatically result in a revocation measure: "Not all suspects committed fraud to obtain entry to Canada or to obtain citizenship...."

[191]     Sixth, it is not the Government of Canada that makes the decision to issue a notice under the Act: "... the Attorney General will refer the files to the Minister of Citizenship and Immigration to consider whether denaturalization or deportation proceedings should be commenced. Such factors as the strength and availability of evidence and the nature of the crimes in question will be taken into account in the decision."

[192]     For these reasons, the defendant has failed to persuade me that the evidence supported his allegation of abuse of office.

[193]     I would add that Mr. Justice Nadon, in Canada (Minister of Citizenship and Immigration) v. Katriuk, [1999] 3 F.C. 143, ruled against the defendant's allegations:

¶ 28 I cannot fault the government for choosing to proceed in the manner in which it has. The fact that a criminal procedure was available to the Crown is irrelevant. By bringing its case against the respondent in the manner in which it has, the Crown has in effect rendered the issue of whether the respondent committed war crimes irrelevant. The issue in these proceedings is whether the respondent obtained his citizenship by fraud or by concealing material circumstances. Even if the respondent did not commit any crimes during the war, proving that he either gave false information or concealed material circumstances regarding his activities during the war period is sufficient to establish the allegations in this case. Does this amount to a wrongdoing on the part of the Crown so that these proceedings against the respondent should be stayed? Certainly not. When multiple avenues of proceeding are open to the Crown, the Crown is at liberty to pursue whichever avenue it chooses. I know of no legal principle which dictates otherwise. Again, there was no constitutional attack brought against the provisions of the law which permit the Crown to proceed in the manner it has chosen. [Emphasis added]

(ii)                     Unconstitutionality

[194]     I have no intention of canvassing the submissions by the defendant's counsel in support of his defence that the relevant sections of the Citizenship Act (sections 10 and 18), combined with some sections of the Immigration Act, old or new, are in breach of the Charter and the Bill of Rights.

[195]     My reading of the memoranda that the defendant's counsel filed with the Federal Court of Appeal in opposition to the decision of Nadon J. to deny him a definitive stay of the proceedings taken by the Minister, and the memorandum she filed in the Supreme Court of Canada for the purpose of persuading that Court to grant leave to appeal the decision of the Federal Court of Appeal, persuades me that these two courts dismissed on the merits all of the arguments she has put before me albeit in a different form.

[196]     Moreover, Nadon J. reached the same conclusion when he dismissed the defendant's motion to formulate a preliminary question of law raising the lack of constitutional validity of the relevant provisions of the Citizenship Act.

[197]     Under our legal system, no further debate on the same issue is allowed once that issue is decided. As Mr. Justice Strayer held, in Canada (Minister of Citizenship and Immigration) v. Fast, supra: "Stare decisis is the normal rule and is itself one of the 'basic tenets' of our legal system (thus an element of 'fundamental justice') allowing Canadians some certainty and predictability in the law as well as some efficiency in the administration of their system of justice." (See also the remarks of Binnie J. in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, at page 473, that "The law rightly seeks a finality to litigation."

[198]     Section 15 of the Charter was not cited by the defendant in his previous proceedings, although it could have been. I note that a party to the proceedings cannot keep an argument in reserve while making his submissions to the court in the hope of raising it later if the arguments that are presented have not been accepted.

[199]     Notwithstanding this principle, it is clear to me that the revocation provisions of the Citizenship Act in no way violate section 15 of the Charter, the analysis of which is made on the basis of the judgment in Law v. Canada (Minister of Human Resources Development), [1999] 1 S.C.R. 497, which held that three broad inquiries must be made whenever this section of the Charter is raised. First, does the impugned law draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? Second, is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? Third, does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

[200]     Counsel for the defendant compared him to citizens born in Canada. As Mr. Justice MacGuigan said, in Roach v. Canada, [1994] 2 F.C. 406, at 416, "This is a meaningless comparison of groups." The comparison suggested by counsel for the Minister is in my opinion suitable, however: persons who have obtained citizenship by fraud, false representation or by knowingly concealing material circumstances compared with those who, like the defendant, not being born in Canada, obtained citizenship without resorting to fraudulent means.

[201]     Needless to say, using this comparison the defendant fails to fulfill any of the three tests needed to ground a violation of section 15 of the Charter as laid down in Law, supra.

[202]     The defendant, in his submissions to me, also relied on the Bill of Rights, another argument held in reserve. He has failed to persuade me that in this case the Bill of Rights would add a dimension that is not covered by the Charter.

(iii)        A grandfathered right to citizenship

[203]     The defendant submits that the Citizenship Act of 1976, as amended, had the effect of immunizing him against the revocation provisions contained therein. He bases his submission on the following sections of the new legislation:

(1)         Section 3, which states: "Subject to this Act, a person is a citizen if ... (d) the person was a citizen immediately before February 15, 1977."

(2)         Subsection 10(1), which states: "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 . . . citizenship under this Act . . . ." [Emphasis added]

(3)         The transitional and repeal provisions in sections 35 and 36:

35. (1) Proceedings commenced under the former Act that are not completed on the coming into force of this Act may be continued as proceedings under the former Act or under this Act and any regulations made thereunder, as the Minister may, in his discretion, determine, but any proceedings continued under the former Act and regulations made thereunder may not be so continued for more than one year from the coming into force of this Act.

(2) . . .

36. The former Act is repealed. [Emphasis added]

[204]     Three propositions follow from the language of theAct, the defendant argues:

(1)         the citizenship revocation procedure is addressed to citizenship acquired under the present legislation;

(2)         Walter Obodzinsky is no longer simply a naturalized citizen but has been declared a Canadian citizen under section 3 of the new legislation; and

(3)         the purpose of these statutory amendments is to put an end to the effects of this legislation.

[205]     I reject the defendant's interpretation for two reasons:

(1)         the substantive rights related to the acquisition of citizenship are governed by the legislation in force at the time citizenship was granted (see Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (F.C.T.D.)); and

(2)         section 44 of the Interpretation Act applies where a statute is repealed and replaced, which is the case here.

[206]     I mentioned previously in these reasons the relevant provisions of the Citizenship Act of 1946 concerning the granting and loss of citizenship. To obtain citizenship, an applicant had to have been lawfully admitted to Canada for permanent residence therein and be of good conduct. A person who had acquired Canadian citizenship could lose it under section 19 of the 1946 Act, a provision analogous to section 10 of the 1976 Act.

[207]     The relevant provisions of section 44 of the Interpretation Act read as follows:

[208]     To conclude on this point, the procedure established by the Citizenship Act of 1976 must be followed in any case relating to facts occurring prior to the repeal. It was in 1946 that the Minister alleges Walter Obodzinsky misrepresented material facts about his past that led to his temporary admission to Canada that year and through a process of cause and effect to the unlawful obtaining of permanent residence, Canadian domicile and, in 1955, Canadian citizenship, from which he could be deprived under the 1946 Act if such citizenship had been acquired by fraudulent means.

[209]     Furthermore, the defendant's submission that section 3 of the Citizenship Act of 1976 grants him irrevocable status as a citizen becomes meaningless if we consider, as we must, that this statement in section 3 is made subject to any other provisions of the 1976 Act, including the revocation procedure.

(iv)        Prescription and laches

[210]     In Canada v. Obodzinsky, [2002] F.C.A. 518, Létourneau J.A. discussed at length, in obiter, the issue of whether the Minister's action against the defendant was prescribed (see paragraphs 45 to 51 of his judgment). I note in particular the remarks made at paragraph 50:

¶ 50 . . . it was equally improper to venture into the area of prescription when the facts were not all known. For example, it can be seen from the limited evidence before the Motions Judge that the Canadian authorities were informed in 1993 of the allegations regarding the respondent and that he was not located in Canada until 1995. It is thus unlikely that even if prescription could be relied on it began to run prior to that date, still less in 1950, as counsel for the respondent maintained.

[211]     Notwithstanding this remark by Létourneau J.A. on the lack of evidence in the record on the issue of prescription, the defendant's counsel did not attempt to overcome this deficiency in her submissions to me.

[212]     All of my knowledge on this matter is derived from the documentation filed wth the motions judge on summary judgment and therefore with Létourneau J.A. in the appeal record.

[213]     This evidence demonstrates the following facts:

(1)         In the context of their investigation on Mr. Serafimovich, Dr. Dean of the British War Crimes Unit informed the War Crimes Investigation Unit in Canada in January 1993 that several witnesses had identified a certain Obodzinsky as a police officer at Turez during the summer of 1941;

(2)         In July 1993, Dr. Dean told the Canadian authorities that he wanted to interrogate this Mr. Obodzinsky, saying "I think it is likely that the man living in Canada is indeed the Wlodzimierz Obodzinsky referred to by witnesses." Walter Obodzinsky refused to meet with the English investigators;

(3)         On August 31, 1994, the RCMP opened an investigation;

(4)         On December 2, 1995, the Canadian and English investigators met with the defendant in Montréal;

(5)         The defendant told the investigators that he had been deported by the Russians with almost his entire family a few weeks prior to the arrival of the Germans in June-July 1941, and that he did not return to Poland until 1945, when he joined the Polish Army;

(6)         The Canadian investigation continued, therefore, but I have no precise date when it was terminated and when a recommendation was made to the Minister;

(7)         The defendant's wife also filed an affidavit acknowledging the interrogation of her husband in 1996.

[214]     Assuming for purposes of discussion, as Létourneau J.A. did, that sections 10 and 18 of the Citizenship Act contemplate a cause of action, this cause of action in my opinion did not arise until the Minister had reasonably discovered that the defendant had acquired Canadian citizenship by fraud or misrepresentation or concealment. It was certainly not in 1993 that the Minister would reasonably have discovered this, as argued by the defendant's counsel. This cause of action did not arise in late December 1994, as the evidence to which I will refer later amply demonstrates.

[215]     In any event, the defendant has failed to discharge his burden of establishing sufficient proof that the action against him was prescribed.

[216]     On the question of laches, I accept the submissions of counsel for the Minister that the citizenship revocation process is not a procedure in equity to which the doctrine of laches might pertain and, in any event, this question had been raised before Mr. Justice Nadon who, without saying more, did not act on it. Furthermore, this question of laches was raised before the Court of Appeal and the Supreme Court of Canada in the context of his submissions concerning the delay.

(v)         The appropriate stage for the fraudulent means

[217]     The defendant repeated before me the argument that there was no evidence in the record that Walter Obodzinsky had not been lawfully admitted to Canada for permanent residence therein, a precondition for the acquisition of citizenship under the 1946 legislation (see paragraph 10(1)(b) of the Act).

[218]     Under P.C. 3112, says defendant's counsel, Walter Obodzinsky was admitted to Canada temporarily as a resident, but under the substantive law of 1946 lawful admission as a visitor was not a condition for obtaining citizenship. The right time is when permanent residence is acquired, and the order in council explicitly recognizes this requirement when it states, in paragraph 3, that the person in question "shall be granted permanent admission . . . and if otherwise eligible to enter or remain in Canada".

[219]     I consider argument on this question to be closed as a result of the December 2002 decision of the Federal Court of Appeal, which decided it, irrespective of the present subsection 10(2) of the 1976 Act, which was not in the 1946 Act.

[220]     The important thing, in my view, is the scope that Létourneau J.A. gives to subsection 10(1) of the 1976 Act, which is drafted in the same way as paragraph 19(1)(b) of the 1946 Act. In paragraph 44 of his judgment, Létourneau J.A. writes that subsection 10(2) of the 1976 Act "does not have the effect of limiting or restricting the scope of subsection 10(1) and the grounds for revoking acquisition of citizenship... . In other words, the presumption in subsection 10(2) is useful, but it does not limit the question of fraud or the use of fraudulent means solely to the time the person was admitted to Canada as a permanent resident." [Emphasis added]

[221]     This interpretation by Létourneau J.A. creates an opening to the Minister's theory in this case, which is anchored in the existence of a concealment in Italy that enabled Walter Obodzinsky to participate in the program ratified by P.C. 3112, which gave him a port of entry to Canada, and that without this oblique pied à terre, he would never have obtained his permanent residence and Canadian citizenship.

(vi) Power to prohibit the defendant for security reasons

[222]     I realize that in Dueck, supra, Noël J. found that prior to 1950 there was no legal authority to reject applicants for permanent residence on security grounds.

[223]     The Federal Court of Appeal, in its December 2002 judgment, noted the differences between P.C. 3112 and P.C. 1947-2180 that Noël J. considered. Also, Létourneau J.A. made some comments on the evidence that was in the record of the motion for summary judgment.

[224]     It should be kept in mind that the temporary entry of the Second Corps soldiers was allowed under P.C. 3112, the basis for the legal document under which the soldiers of the Polish Second Corps entered Canada, that is, a permit issued by the Minister of Mines and Resources under section 4 of the Immigration Act of 1910, which gave him a discretionary authority.

[225]     I have no doubt that the RCMP could legally refuse to allow a member of the Polish Second Corps in Italy to participate in the program established by P.C. 3112, on the ground, among others, of security. The basic purpose of the Canadian Mission that travelled to Italy was to meet with the Polish applicants who wished to participate in this program, "to interview and examine persons" for the purpose of selection so that the Minister could exercise his discretionary authority. According to the documentation before the Cabinet in 1946, one selection criterion was "no Nazis, no agents". That, in fact, is how the selection was made.

(b)         On the questions of fact

[226]     Before making my findings on the questions of fact, some comments are necessary concerning the testimony that I received.

[227]     I heard a number of witnesses in a commission to examine witnesses. Their testimony covered their personal knowledge of the defendant. The main value of their evidence rests on this aspect of the Minister's statement. I agree that this evidence is credible and it is this evidence concerning personal knowledge of the defendant that I accept. I note that some witnesses testified against interest when they admitted having been members of the auxiliary police or the Jagdzug.

[228]     I accept as well the evidence of the witnesses concerning the contribution provided by the auxiliary police and the Jagdzug to the German occupation in Byelorussia in the atrocities that were committed. This evidence is corroborative of the documentary evidence.

[229]     In some of the testimony on non-essential points there was a noticeable divergence between the documentary evidence and the personal experience of the witness during the German occupation. I need not provide further details on this point, for to do so I would have to venture beyond what is necessary in this reference. I should say that this restraint on my part does not apply in any way to the witnesses that I heard in Byelorussia or in Israel.

[230]     I draw the following conclusions of fact on the balance of probabilities.

[231]     First, the evidence establishes that Walter Obodzinsky was at Turez during the summer of 1941 and that he was an auxiliary police officer at that time at the commencement of the German occupation:

Biyut, M.H., vol. 1, pages 33-34;

Zayats, M.H., vol. 1, pages 152 to 155;

Harkavi, M.H., vol. 3, pages 22 and 35.

[232]     Second, I find that the defendant voluntarily enrolled in the local police, in the summer of 1941, in the district of Mir:

Biyut, M.H., vol. 1, pages 15, 34;

Gruschevsky, M.H., vol. 1, pages 52-59-60;

Report of B. Chiari, page 13, paragraph 7

German report, (M-35) DHD 105

[233]     Third, the evidence of Doctors Messerschmidt and Chiari establishes that the auxiliary police force under the German civilian occupation authority in Byelorussia was under the control and jurisdiction of the SS and that the Jagdzug was a military organization under the orders of the Germany military during several major anti-partisan operations.

[234]     Fourth, the defendant was located at Mir as an auxiliary police officer in 1942:

Mazurek, M.H., vol 2, pages 50, 52 to 54.

[235]     Fifth, there is abundant evidence of the atrocities committed against the Jews in Byelorussia and the participation of the auxiliary police in these atrocities:

Biyut, M.H., vol. 1, pages 22 to 31 on the shootings on November 11, 1941;

Zayats, M.H., vol. 1, pages 158-159, at Turez;

Gruschevsky, M.H., vol. 1, pages 55 to 61, at Mir, fall of 1941;

Harkavi, M.H., vol. 3, pages 29 and 30, on November 4, 1941, including knowledge of the massacre that day at Jeremichi, pages 29 to 30);

Schreiber, M.H., vol. 3, pages 57 to 60, for Mir, November 9, 1941;

pages 65 to 73 for the events at the Mir Chateau in August 1942.

[236]     Sixth, there is evidence that Walter Obodzinsky was present, once, during the execution of Jews:

Biyut, M.H., vol. 1, page 31, concerning the shootings at Jeremichi on November 11, 1941, but he testifies that Walter Obodzinsky had his gun on his shoulder. (See also M.H., vol. 1, page 42).

[237]     Seventh, from the evidence of three witnesses, I find that the defendant was a member of the Jagdzug, as a platoon chief and military instructor:

Grigorovich, M.H., vol. 1, pages 113 to 116 and page 139;

Olezkiewicz, M.H., vol. 2, pages 17 to 19;

Mazurek, M.H., vol. 2, pages 55 to 57;

[238]     Eighth, I note the following evidence concerning the atrocities committed by the local police or the Jagdzug against the partisans and the civilian population in general, including in the course of operations with the German Forces:

Keda, M.H., vol. 1, pages 71, 77, 80, 83 to 92;

Gruschevsky, M.H., vol. 1, pages 53-54;

Grigorovich, M.H., vol. 1, pages 109, 119 to 122;

Olezkiewicz, M.H., vol. 2, pages 22, 23 and 36;

The ample documentary evidence derived from German war documents.

[239]     Ninth, I conclude that Walter Obodzinsky was present in Germany with the Waffen SS, that he deserted in France during the summer and that he subsequently fought with the French Resistance and the Polish Second Corps against the Germans before the end of the Second World War in May 1945:

Walter Obodzinsky's military notebook -

Grigorovich, M.H., vol. 1, page 133;

Olezkiewicz, M.H., vol. 2, pages 25 to 29, pages 36 and 38;                

Mazurek, M.H., vol. 2, pages 57 to 62, pages 65 and 66.

[240]     The evidence to which I have referred leads me to conclude that the defendant was a volunteer collaborator of the Germans during the occupation of Byelorussia between 1941 and 1944, as a member of the auxiliary police and a member of the Jagdzug, a finding that is confirmed by the defendant's retreat from Byelorussia to Germany with the Germans in 1944.

[241]     There is no evidence before me that would allow me to conclude that the defendant personally killed Jews, partisans or other members of the civilian population. However, the oral and documentary evidence shows that the defendant was an accomplice in the perpetration of atrocities that were undeniably committed during the German occupation in Byelorussia.

[242]     I have two final issues to resolve before determining whether the defendant acquired his citizenship in 1955 by fraudulent means. Was the defendant questioned about his past by the RCMP in Italy, and was collaboration with the Germans during the Second World War a ground for exclusion from the program established by P.C. 3112?

[243]     The defendant's counsel suggested to me a number of reasons why it was probable that the defendant was not questioned by the RCMP about his past:

(1)         according to the most recent instructions received by the Mission, the defendant was eligible and admissible to the program because he had fought against the Germans, and this criterion was the only one relevant to his access;

(2)         the program granted him only temporary residence, not permanent residence;

(3)         the written evidence received on consent from William Makowski, who was selected but said he had not been questioned about his past; and

(4)         the report of the Canadian Mission to England in 1947.

[244]     I assign very little weight to the considerations cited by the defendant. Messrs. Hare and Shakespeare wrote in their reports that the final instructions, dated September 28, 1946, expanded the selection field, i.e. those who were eligible to participate in the program but not necessarily admissible as a participant in the program (see the Shakespeare report, paragraphs 25 and 27).

[245]     The Mission understood very well that if in fact a Polish applicant from the Second Corps was selected it was for all intents and purposes for permanent residence absent any deficiency in those selected. Sgt. Shakespeare states clearly in his report at paragraph 13 "as these veterans were expected to settle permanently . . . ", and at paragraph 34, "it seems to me that as these men have been so carefully selected it might be found advantageous to encourage them in becoming citizens of Canada . . . ." And the evidence show that this is exactly how the Government of Canada proceeded by granting them permanent residence.

[246]     It does not surprise me at all that Mr. Makowski was not questioned about his past. He was one of those who had joined the Polish Second Corps in Russia, which automatically ruled out any collaboration with the Germans during the occupation.

[247]     Finally, the report of the Canadian Mission that went to England in April-June 1947 to make the selection of Polish veterans (exhibit D-30) provides very little on this point. Like the Hare report, the report of this Mission was written by George Haythorne, chief of the Mission, a public official and not a member of the RCMP. In this context it is not surprising that he did not apply any of the security criteria, as was the case with Mr. Hare, however.

[248]     In the last analysis, I conclude that collaboration with the German occupation during the Second World War was a factor which, if it had been known, would have excluded the defendant from the program authorized by P.C. 3112. Collaboration as a ground of exclusion or inadmissibility to Canada for the purposes of the Immigration Act was an ongoing concern of the Canadian authorities, which is evident from an examination of the following documentation, a documentation largely contemporaneous with the development of P.C. 3112 and the selection by the Mission in Italy:

(1)         a reference by an internal committee in the Department of External Affairs in February 1946 to collaborators as undesirable persons for entry to Canada;

(2)         a letter dated May 16, 1946, from Deputy Commissioner Gagnon of the RCMP to Laurent Beaudry, Assistant Under Secretary of State in the Department of External Affairs, in which he states that Nazi collaborators wanted to come to Canada and that "this type of person is hardly desirable";

(3)         a few days later, on May 24, 1946, the parameters of the program for the soldiers of the Polish Second Corps are developed by two departments (the Department of Labour and the Department of Mines and Resources), in which it is stated that "a meticulously careful selection should be made on grounds . . . security (no Nazis or agents)." These parameters were, as stated previously, ratified by the Cabinet;

(4)         the text of the proposed statutory amendments drafted in June-July 1946 but subsequently abandoned;

(5)         the instructions received on October 23, 1946, by Sgt. Hinton (the first member of the RCMP to go to London to carry out the security screening);

(6)         a letter dated April 7, 1947, by N.A. Robertson, Canadian High Commissioner to London, who states that "persons who are collaborators would of course be screened out." It should be noted that Mr. Robertson was one of the architects of P.C. 3112;

(7)         a discussion in early 1948 of the criteria of inadmissibility of displaced persons (see document M-131, tab 274, and document M-229, tab 279);

(8)         a letter from Deputy Commissioner Nicholson of the RCMP to Superintendent McLellan, dated July 22, 1948 (document M-136, tab 290), mentioning collaboration as a criterion for refusal on security grounds; and

(9)         to the same effect, documents M-36 and M-37, tabs 291 and 292, addressed to collaboration as a criterion for refusal.

[249]     All of these references to collaboration as a criterion for refusal for immigration purposes are made both before and after the selection by the Canadian Mission of those who could participate in the program under P.C. 3112. My reading of Sgt. Shakespeare's report convinces me that collaboration with the German occupation would have excluded a collaborator applicant from the program. This conclusion results from the very text of his report, the relevant extracts of which have been reproduced.

DECISION

[250]     Paragraph 18(1)(b) of the Act requires that I determine whether Walter Obodzinsky obtained his Canadian citizenship by false representation, fraud or by knowingly concealing material circumstances.

[251]     After a detailed review of the evidence taken in commission to examine witnesses and during the trial, I conclude that the defendant did conceal his past - his active and voluntary collaboration with the German occupation - and that this concealment resulted in his unlawful participation in the P.C. 3112 program, and, as a necessary consequence in the context and purpose of this order in council and this program, in the granting of permanent residence, establishment of Canadian domicile and the granting of Canadian citizenship.

[252]     The defendant's concealment can be clearly seen in the content of his military notebook. Between the summer of 1941 and April 1943, the defendant was not a farmer but was employed voluntarily by the German civilian occupation as an auxiliary police officer.

[253]     Furthermore, from the spring of 1943 to the spring of 1944, he was employed by the German civilian occupation as a member of the Jagdzug, a quasi-military organization functionally integrated in a number of operations with the German Armed Forces.

[254]     Also, his military notebook conceals the fact that prior to his desertion, he was part of the Waffen SS, which is a different formation from the Wehrmacht, and the record shows that membership in this group was at the time considered undesirable from the security standpoint.

[255]     Sgt. Shakespeare writes at paragraph 30 of his report that each applicant to the P.C. 3112 program was interrogated "as to his background and activities prior to that time". He reports that "in the case of men who joined the 2 Pol Corps in 1941 and 1942, the procedure was comparatively simple, where a man joined the Pol Corps after service in the Wehrmacht . . ., it was of necessity more prolonged."

[256]     On the balance of probabilities, I find that the RCMP would have interrogated the defendant about his past and that the replies he gave to those questions would have led the RCMP to approve his participation in the program, an approval that could be granted only if he had concealed his collaboration, a criterion for refusal on security grounds.

[257]     There is a further consequence of this concealment of collaboration. He was not a person of good character, a precondition to the granting of citizenship under the 1946 Act.

[258]     As Mr. Justice McKeown wrote in this connection, in Canada (Minister of Citizenship and Immigration) v. Baumgartner, [2001] F.C.T. 970, at paragraph 132:

¶ 132 "Good character" was also required of a prospective citizen in 1959, according to section 10 of the Citizenship Act, R.S.C. 1952, c.33. As I held in the Bogutin case, this criterion is relevant in citizenship revocation proceedings. It is unlikely that Mr. Baumgartner would have been found to be of "good character" at the time of his application for Canadian Citizenship had he disclosed his roles as a concentration camp guard and voluntary member of the Waffen S.S. during the Second World War. It is probable that he also would have failed to meet such a criterion if it had been known that he had misrepresented these facts at his immigration and security clearance interviews and on his OS-8 application when he sought admission and permanent residence in Canada in 1952/1953.

[259]     For all these reasons, I conclude that the defendant acquired his Canadian citizenship by knowingly concealing material circumstances.

"François Lemieux"

Judge

Ottawa, Ontario

September 19, 2003

Certified true translation

Suzanne Gauthier, C. Tr., LL.L.

FEDERAL COURT OF CANADA

TRIAL DIVISION

SOLICITORS OF RECORD

DOCKET:                                           T-166-00

STYLE:                                                MCI v. WALTER OBODZINSKY (a.k.a. WLODZIMIERZ & VOLODYA OBODZINSKY)

PLACE OF HEARING:         MONTRÉAL, QUEBEC

DATES OF HEARING:         NOVEMBER 12, 13, 18, 19, 21 AND 22, 2002

JANUARY 13 AND 17, 2003

MARCH 11, 12, 13, 14 AND 17, 2003

REASONS:                                         THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                                             September 19, 2003

APPEARANCES:

DAVID LUCS

SÉBASTIEN DASYLVA                                                         FOR THE PLAINTIFF

JOHANNE DOYON                                                               FOR THE DEFENDANT

SOLICITORS OF RECORD:

MORRIS ROSENBERG

DEPUTY ATTORNEY GENERAL OF CANADA                  FOR THE PLAINTIFF

DOYON, GUERTIN MONTBRIAND &

PLAMONDON                                                                                    FOR THE DEFENDANT