Canada (Minister of Citizenship and Immigration) v. Kisluk, docket T-300-97

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docket T-300-97

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Date: 19990607

Docket: T-300-97

IN THE MATTER OF a revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33;

IN THE MATTER OF a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29;

AND IN THE MATTER OF a reference to the Court pursuant to rule 920 of the Federal Court Rules.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

SERGE KISLUK

Respondent

REASONS FOR DECISION

LUTFY J.:

INTRODUCTION

[1] The Minister of Citizenship and Immigration seeks to have revoked the Canadian citizenship of the respondent Serge Kisluk on the ground that he was admitted to Canada for permanent residence and obtained Canadian citizenship, by false representations or fraud or by knowingly concealing material circumstances.¹ In particular, the applicant alleges that the respondent failed to divulge to Canadian immigration and citizenship officials:

a) [his] collaboration with and service to German authorities in Ukraine during the period 1941-1943, as a member of the Ukrainian auxiliary police (Schutzmannschaften) in the Turiysk Raion, Kovel District, General Commissariat Volyn-Podolia, a local auxiliary police under the command of the Germans;

b) [his] participation, as a member of the said German armed forces and of the said Ukrainian auxiliary police, in the commission of crimes and atrocities against members of the civilian population in Ukraine.

[2] The principal events are alleged to have occurred in the Ukrainian villages of Sushibaba, Ozeryany, Chirnihiv, Makovichi, Kupychev and Svynaryn, each within a few kilometres of the other. These villages are in or near the administrative county (raion) of Turiysk, just south of the city of Kovel. The Turiysk Raion and Kovel are some seventy kilometres north-west of Lutsk, a principal centre of the administrative region (oblast) of Volhyn, in the north-west corner of Ukraine. Commission evidence in this proceeding was received in Lutsk, Kupychev and Makovichi and site visits were conducted in Ozeryany and Sushibaba.

[3] The respondent acknowledges that he was a police officer in Makovichi in the period following the German occupation in June 1941. The parties disagree on the respondent"s functions as a police officer during the German regime. The respondent also acknowledges that in 1940 and 1941, he worked as a railway guard for the Germans in the territory they occupied near Cholm, just west of the Bug River.

[4] The respondent obtained his Canadian immigration visa in December 1948 in the International Refugee Organization processing centre in Butzbach, Germany. He was landed in Canada in January 1949 and he obtained his Canadian citizenship in 1954. The principal factual issue in this reference is whether he obtained his visa, his landing or his citizenship by false representations or fraud or by knowingly concealing material circumstances concerning his wartime activities.

[5] The burden of proof rests with the applicant. Concerning the standard of proof to be applied in this proceeding, I adopt the statement of my colleague McKeown J. in Canada (Minister of Citizenship and Immigration) v. Bogutin:² "I apply the civil standard of proof on a balance of probabilities but I must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered."

[6] Testimony was received in February, July and August 1998. Written and oral argument was presented in September and October 1998. As the result of a determination made in another citizenship revocation case,³ further submissions were received in March 1999 concerning the government"s legal authority to prohibit the respondent"s entry to Canada, even if his alleged wartime activities had been disclosed to immigration officials.

[7] In these reasons, consideration shall first be given to the testimony of the applicant"s expert witness concerning the Ukrainian auxiliary police under German occupation. This will lead to a review of the following issues:

C the respondent"s background and his role as a railway guard and as a police officer

C the evidence concerning certain incidents between 1941-1943:

(i) the tree incident in Svynaryn

(ii) the killing of Jews in Sushibaba

(iii) the beating of Moshko Goldshmidt in Chirnihiv

(iv) the killing of a Makovichi police domestic servant

C the respondent"s activities between 1943-1948

C the immigration screening process: collaborators

(i) the government documents

(ii) the testimony of immigration officials

(iii) the testimony of Royal Canadian Mounted Police officials

C the respondent"s immigration visa, his entry into Canada and his Canadian citizenship

C the legal authority to prohibit the entry of collaborators

C the summary of the findings of fact

AUXILIARY POLICE: THE SCHUTZMANNSCHAFTEN

[8] Professor Christopher Browning is an historian who has specialized in the study of National Socialist Germany and the Holocaust. He has published four books in this field. He acknowledges that his evidence concerning German activities during the occupation of Ukraine is "not directed at the wider Ukrainian context".⁴ His expert report does, however, describe, often on the basis of German documents, the organization and operations of auxiliary police forces in occupied territories generally and in Ukraine. He has assisted with the British prosecution of an auxiliary police officer from Domachevo, some sixty kilometres north-west of Kovel.

[9] The auxiliary police which were organized in Ukraine and other German-occupied territories were known as Schutzmannschaften, for which the literal translation is "manpower for protection".⁵ Dr. Browning described the background which led to the creation of the Schutzmannschaften:

Faced with policing vast regions of occupied Soviet territory with limited manpower, Himmler reached the same conclusion as the military. On July 25, 1941, barely one month into the eastern campaign, he noted: "The tasks of the police in the occupied eastern territories can not be fulfilled solely with the police and SS personnel already deployed and yet to be deployed. It is therefore necessary to establish without delay additional defense formations from among those population segments in the conquered territories who are acceptable to us ..." Among the occupied populations, Himmler specified Baltic, Belorussian, and Ukrainian inhabitants as potential auxiliary police. [Exhibit A-3, document 7] One week later, Daluege provided the specifics for implementing Himmler"s authorization. These units of native police were to be designated as Schutzmannschaften . The Security Police was to be in charge of checking the selection of personnel. The Schutzmannschaften were to wear their old Russian (or old German) uniforms and were to be identified by a special armband. Training was to be done by the SS and police officers or capable NCO"s of the Order Police. [Exhibit A-3, document 8]⁶

[10] Dr. Browning"s report discusses the recruitment for the Schutzmannschaften :

In the summer of 1941, the military administration suggested a number of incentives to procure sufficient volunteers for the local police. Every police volunteer was paid on a daily basis, and he and his wife and children received free provisions as well. If this did not produce a sufficient number of volunteers, the commandant could contact the prisoner-of-war camps and arrange for the recruitment of police from certain categories of captives eligible for release.

...

In short, through a package of incentives the Germans were able to induce Ukrainians to apply for acceptance into the Schutzmannschaften. [Exhibit A-3, documents 62-64].⁷

[11] Dr. Browning also described the role of the Schutzmannschaften in the persecution of Jews, particularly in the region of Volhyn. In his words:

The participation of the Ukrainian Schutzmannschaften in the second wave of killings in Volhyn-Podolia can occasionally be documented. The Gebietsführer of Kreisgebiet Brest, Lt. Ernst Deuerlein, reported: "On September 19 and 20, 1942, a Jewish action was carried out in Domachevo and Tomaschevka by a SD Sonderkommando in conjunction with the mounted squadron of Gendarmerie stationed in Domachevo and the Schutzmannschaft, and a total of some 2,900 Jews were shot." ... On another occasion, Deuerlein reported that one Schutzmann was wounded while serving in the cordon during the liquidation of the Jewish labor camp at Tryschyn on October 21, 1942. When the Jews attempted to break out, the guards opened fire and the Schutzmann was accidentally hit. ... The reports of Police Battalion 310 while hunting down Jews in the northern portions of Generalbezirk Volhyn-Podolia in the fall of 1942 also refer occasionally to working with the Schutzmannschaften.

...

In his memorable testimony for the International Military Tribunal, the German engineer Herman Friedrich Graebe described the massacre of Jews in Dubno on October 5, 1942, at the height of the second-wave killing in Volhyn-Podolia. "I went to the construction site. Not far from there I saw mounds of soil 30 meters in length and 2 meters high. A number of trucks stood in front of them. [Armed] Ukrainian militiamen commanded by a SS man drove people out of them. The militiamen guarded the trucks and escorted people to the pits. All of them, as prescribed by the regulations concerning Jews, wore a yellow badge on the back and front of their clothes ..."⁸

[12] A document of May 8, 1942, apparently circulated by the Reich Commissar to his subordinates in various regions of Ukraine, announced that: "Gypsies are in general to be treated like Jews." On June 9, 1942, the Regional Commissar in Lutsk forwarded this information for announcement to the Schutzmannschaft . With respect to this statement, Dr. Browning testified that:

... the Schutzmannschaften already knew what the regulations against the Jews were, and they would now be included in the circle of information that Gypsies would be treated as Jews, without the necessity of especially spelling out what that is. Because the assumption here is that they already know what the regulations are for the treatment of Jews.⁹

[13] On the basis of his analysis of German documents, Dr. Browning reported on the extent of the death of Jews in and near the Volhyn region. The first wave of killings in western Ukraine occurred in late June and early July 1941. Some 1,400 Jews were shot in Lutsk. One German activity report suggested the killing of some of the Jews in Lutsk was done "... by the Ukrainians with the help of one platoon of the police and one platoon of infantry". Two hundred and forty Bolsheviks, "predominantly Jewish", were killed in Rovno. There were 146 executions in Proskurov. In late August 1941, killing actions were carried out in Kamenets Podolsk (23,000) in the southern part of Volhyn and in Rovno (15,000). Rovno is approximately 100 kilometres south-east of the Turiysk Raion. There were more executions of Jews during the summer and autumn of 1942: in Domachevo and Tomaschevka (2,900), Brest (20,000) and Pinsk (16,000).¹⁰

[14] Concerning the Kovel region, Dr. Browning relies on transcripts of the testimony of Jewish survivors and German witnesses during the investigation of suspected German war criminals in 1966. In early June 1942, approximately 8,000 Jews were shot near Kovel. Jewish killings continued in this same area in August 1942. German documents list the vehicles and quantity of fuel required for "ghetto evacuation"¹¹ and "the special treatment given to Jews"¹² in Lutsk.

[15] Dr. Browning"s documentary and oral evidence dealt with the German execution of Jews in occupied territories, including Ukraine, by its military and police forces other than the Schutzmannschaften . He also referred to the extent of Jewish killings in places other than the Volhyn region. In summarizing the role of the Schutzmannschaften in assisting the Germans in the execution of Jews in Ukraine, including Volhyn, Dr. Browning concluded:

1. To provide the manpower necessary to carry out German policy in the occupied Soviet territories, including the Ukraine, the Germans enlisted large numbers of auxiliary police from the local Ukrainian, Belorussian, and Baltic populations. These auxiliary police were known as Schutzmänner, and they were placed in units known as Schutzmannschaften.

2. Service in the Schutzmannschaften in 1941 and 1942 was in general voluntary. ...

3. Some Schutzmänner served in police battalions but most performed precinct service in the towns and villages, where they provided the indispensable manpower to enforce German policy.

4. ... The killing of Jews in Volhyn-Podolia took place in two waves: summer/fall of 1941 and summer/fall of 1942.

5. The Germans used the Schutzmannschaften to help carry out this policy of killing all Jews on occupied Soviet territory, including the Generalbezirk Volhyn-Podolia, both in the large-scale massacres and in the subsequent hunt for Jews in hiding.¹³

[16] In assessing Dr. Browning"s conclusions, I am mindful of the caution, urged on behalf of the respondent, concerning the reliability of the German documentation with respect to the killing of Jews and the extent of Ukrainian involvement in the executions, particularly in the region relevant to this proceeding. Dr. Browning"s evidence, however, is useful as background information of the general plight of the Jewish population in Kovel, Lutsk and other municipalities within some 100 kilometres of this region. The significance of his testimony is the general thrust of what occurred. His evidence and his conclusions serve as a backdrop for the respondent"s description of his role as a railway guard and, subsequently, as an auxiliary police officer in the Turiysk Raion and the activities attributed to him by the applicant"s other witnesses.

THE RESPONDENT"S BACKGROUND AND HIS ROLE AS A RAILWAY GUARD AND AS A POLICE OFFICER

[17] The respondent testified and was cross-examined. His responses in direct examination, concerning his personal history through 1941, can be recapitulated by reference to the relevant portions of his summary of facts and evidence:

1. The Respondent was born in the Village of Svynaryn, in the Ukrainian region of Volhyn, which at the time of his birth, in 1922, was under Polish occupation.

2. In the summer of 1939, his village and the area of Volhyn was occupied by Soviet troops, pursuant to a pact signed between Nazi Germany and the Soviet Union.

3. At the time of the arrival of the Soviets, the Respondent was a schoolboy and was inducted forcibly into the youth organization of the arriving Soviet authorities known as Komsomol.

4. As a result of innocent but incautious remarks as to the totalitarian behaviour and nature of the occupying forces, the Respondent was beaten up severely by professional thugs which required two or three weeks hospitalization.

5. He was no sooner out of hospital that he was beaten again on a trumped up pretext of having gotten in the way of someone"s advances to a young woman.

6. The third time he was beaten up it was made clear to him that he was considered to be the son of a Kulak, since his father had been the "starosta" or "soltys" of the village, which would be the function of a reeve.

7. Such absurdities were alleged to establish the Kulak state of the family as the fact that their barn was covered with galvanized tin and shone brightly in the sun was an indication of non- or anti-proletarian behaviour.

8. It was clear that either through malice or the absurd ideology imported by the Soviets and their repressive measures, that the Respondent and his family were being targeted.

9. The Respondent"s father took counsel and through the assistance of a German neighbour, was able to participate in the massive exchange of human material that was being effected between the Nazi and Soviet occupants of their respective territories as they had divided between them, and in order to get rid of nuisances and potential antagonists, were willing to swap people back and forth for the period that they were supposed allies until 1941.

10. The Respondent with his family was therefore removed to Cholm and being of military age, was reviewed for military possibilities.

11. Because of the peculiarities of Nazi ideology, the Respondent was not considered appropriate material for entry into Nazi military forces, being dark rather than the desired blonde in his hair, and was consequently shunted and shifted to act as a guard on the railway.

12. He was given a railway guard"s uniform and was stationed to safeguarding the loading of goods on freight trains among such great numbers of geese being transferred to the German territories as foodstuffs.

13. The Respondent returned home on leave once the Nazi forces had struck into the Soviet Union and rapidly occupied the adjacent territories to those that the Nazi"s had occupied under the Molitov-Ribbentropp Pact, and on his return, noticed, not to his surprise, a very great deal of anti-Communist feeling.

14. Such feeling was expressed by forcing the devoted Communists who had not managed to evacuate with the retreating Soviet forces (left behind as being not necessary to the immediate war effort on the part of the Soviets) to do the kinds of humiliating things that he and his friends had been forced to do when the Soviets first arrived themselves.

[18] His evidence disclosed other relevant facts.

[19] The respondent attended primary school in Svynaryn, through grade 4 and in Kupychev, through grade 7. He attended high school in Lutsk, some seventy-five kilometres from his village of Svynaryn.

[20] His father was "a good farmer". The family"s political critics focussed on the galvanized tin covering the roof of their barn, as an apparent and unfavourable indicia of their material success.

[21] In stating that he was forced to join the Soviet youth organization Komsomol, he added that the majority of young people in his village did likewise "[m]ostly because our hatred was to Poland so we thought these were the liberators".¹⁴ The incident in paragraph 4 of his summary of facts resulted in his being "kicked-out" of Komsomol.

[22] In short, the respondent"s family felt harassed by the Soviets. As a result, the respondent, his parents and his cousin Myron Trotsiuk, also from Svynaryn, moved with "the German Commission" to that part of Poland under the general administrative territory of the Germans. Their family belongings were left behind. This would have occurred in late 1939.¹⁵ The respondent insisted that his family"s decision to follow the Germans was not because they were known to be anti-Communists, but rather because "... we were saving our lives because we knew that we would either go to Siberia or be destroyed. ... By Bolsheviks".¹⁶

(i) The respondent as a railway guard

[23] Sometime after leaving Svynaryn, the respondent"s family ended up in Cholm, Poland. The respondent spoke of "some kind of Ukrainian committee" which coordinated the activities of the significant number of Ukrainians residing in Cholm. This committee apparently sent the respondent"s father to work at an ice box factory and his mother at a tobacco factory in Dresden, Germany. The respondent and his cousin Myron Trotsiuk remained in Cholm and were assigned to loading geese onto railcars. At trial, the respondent testified that he did this work "for a month or for two months or three months". On discovery, he stated that he did this work for two or three weeks.¹⁷

[24] Subsequently, in the words of the respondent: "When the war broke out in 1941 I think the committee organized for us that we were put to look after or to guard the trains, the German trains that were going to the [eastbound] front." Both the respondent and Mr. Trotsiuk served as guards "so that nobody can destroy the train". They wore German military uniforms and were provided with rifles. The respondent acknowledged that the railway guards were part of the German police, but was not certain that they could be described as military police. The trains they guarded contained tanks, arms, artillery and vehicles. They were paid for this work as railway guards and were provided with accommodation, food and vacation. When asked if he was compelled to work as a railway guard, the respondent replied: "I did not have any other option. I had to do something, to work somewhere, so I didn"t have any other option. ... The important thing was that I was fed, and I do not remember how much I was paid."¹⁸

[25] At some point in time during 1941,¹⁹ the respondent returned to Svynaryn for a two-week vacation or leave from his work as a railway guard. He was accompanied by his cousin Myron Trotsiuk for this leave period in Svynaryn.

[26] It was shortly after their return to Cholm, after this vacation period, that the respondent and his cousin were discharged from their duties as railway guards. This would have occurred in approximately August 1941. The Germans provided them with train tickets for their return to Svynaryn.²⁰

(ii) The respondent as a police officer

[27] The respondent returned to Svynaryn after being discharged as a railway guard. Upon his return, he was recruited to work as a police officer in the nearby village of Makovichi. He was approached by unknown persons to join the police.²¹ He first responded that he would have to think about their offer. On their second approach, he said that he had yet to make his decision. When they came a third time, he accepted "... because, you know, those times were like that; if you say no, you may end up with a broken arm or leg".²² When asked by his counsel if he had any alternative forms of employment available to him, the respondent answered that he could have worked at the family farm. He was housed and fed at the station and was paid a modest monthly salary for his police work.²³

[28] The respondent surmises that he was recruited by these unknown persons because they knew he was anti-Communist. They would also have seen him in the uniform he wore as a railway guard for the Germans.²⁴

[29] The respondent acknowledged that, as a police officer, he may have worn a uniform at times, "... not a German green colour, it was a Ukrainian green colour, just like the uniform now. And I had a hat. But mostly I wore civilian clothes ...". The police wore blue and yellow armbands and some had Soviet shirts. People knew that he was a policeman because, in his words, "... I had a rifle and I had a hat." When asked why he needed a rifle, he answered: "It"s a sign of power, it"s a sign of authority. The weapon is a sign of authority."²⁵

[30] At the time he was recruited, he knew that the Germans "were taking our youth for the forced labour. They were hanging our people on the telephone poles." He knew of the German oppression of Jews and, in his words, "[n]ot only the Jews but the Ukrainians were also shot and hanged by the Germans."²⁶

[31] The respondent was asked how he knew that "German execution squads were at their busiest" at a certain point in time, a reference to a statement made in his summary of facts and evidence.²⁷ In response, he stated: "Every day you saw that the people were taken away and the people disappeared. They did not return. ... More of that happened in 1942."²⁸

[32] However, he denied hearing of the execution of Jews in 1941 and 1942 in a number of cities in or near the Volyn region, including Kovel and Lutsk which were near the Turiysk Raion, where he lived and worked for a significant portion of that period. When asked if he heard of the execution of Jews in Kovel in 1941 and 1942, the respondent replied: "I did not hear about the Jews but I know three Ukrainians were hanged there on the telephone pole."²⁹ Dr. Browning reported that 8,000 Jews were killed in Kovel in June 1942.³⁰ It is difficult to accept that the respondent was fully candid in denying that he had heard of the killing of Jews in Kovel, at a time when he was a police officer some forty kilometres from that city.

[33] Myron Trotsiuk also served as a policeman in Kupychev, a few kilometres from the respondent"s police station. According to the respondent, neither would visit the other at their respective place of work nor did they discuss with each other their work as policemen. In the words of the respondent, "[i]f I spoke to him I spoke to him more about girls than about our job in the police." Earlier, when asked if Mr. Trotsiuk was a policeman in Kupychev during cross-examination, the respondent answered: "I think so, yes."³¹

[34] The respondent acknowledges his assistance and involvement "in the maintenance of law and order ... to provide the necessary civilian stability that the Nazi war machine required in order to be able to push their front eastward more securely". This is set out in his summary of facts and evidence:

16. The Respondent assisted in the maintenance of law and order but was never implicated nor involved in any punitive measures against the local population, nor against any Jewish population.

...

19. The Respondent however was required to stay in the village and to assist in maintaining law and order, to provide necessary civilian stability that the Nazi war machine required in order to be able to push their front eastward more securely.

[35] The respondent denies having been involved "in any Jewish actions on behalf of the Germans". He stated that he assisted in hiding an elderly Jewish neighbour in Svynaryn from the Germans. At first, he stated that he did not see any Jews living in Makovichi but later acknowledged that the three domestic workers in the police station were Jews.³²

[36] On repeated occasions, the respondent limited his functions as a policeman to investigating petty thefts ("those thieves who were stealing chicken") and domestic disputes ("family matters when the husband would beat up his wife"). The petty thief or domestic abuser would be told that he would be given up to the Germans. This would assure that the conduct would not be repeated.³³

[37] The respondent acknowledged that the commandant of the Makovichi police would receive his orders from the German authorities in the Turiysk Raion police, although communications would be in Ukrainian. The police in Turiysk would receive their directions from their colleagues in Kovel where, according to Professor Browning, the District Commissariat under the German Order Police structure was situated.³⁴

[38] In summary, while acknowledging his involvement over a period of some fourteen months, from late 1941 through March 1943, as one of approximately twelve policemen operating from a residence owned by an individual of Czech origin, the respondent denies that his functions included anything other than the policing of petty thefts and domestic violence. The applicant alleges that the respondent"s functions and those of other Ukrainian policemen who worked in the villages in the Turiysk Raion included involvement in far more serious activities, including actions directed against Jews and other Ukrainians.

THE EVIDENCE CONCERNING CERTAIN INCIDENTS BETWEEN 1941-1943

[39] The applicant focussed on four incidents. Three of these allegedly involved the respondent when he was a railway guard and a police officer.

(i) The tree incident in Svynaryn

[40] This incident is generally acknowledged by the respondent. In his summary of facts and evidence, the respondent states:

15. These committed Communists were required to do pushups and exercises for their health as the Respondent and his friends had been forced to do supposedly to create the new Soviet man.

At trial, the respondent acknowledged that he and his cousin Myron Trotsiuk were responsible for forcibly requiring "these committed Communists" to engage in these physical exercises.

[41] This incident occurred "in the spring, maybe in May or June" of 1941 when the respondent and Mr. Trotsiuk returned to Svynaryn on vacation leave from his service as a railway guard. They were wearing their German uniforms and were in possession of pistols that had been loaned to them by their superior officer.³⁵

[42] According to the respondent, he and his cousin rounded up three Communists and, while the villagers were watching, they "commanded them to get up and get down, get up, get down, and people were shouting: Shoot those bastards" and to "[f]all on the ground, get up, run away, fall on the ground". The incident occurred in an area near the respondent"s "... house, the church and the tree. There was a tree there, I remember some kind of tree. So this whole thing happened on the territory of two acres." The respondent acknowledged that he was angry at these Communists for having occupied, looted and damaged his family house and barn during the Soviet occupation. The activities he forced upon the Communists were "the same thing that they did to us" during the Soviet occupation. The respondent acknowledged that he wanted to embarrass the Communists: "... we embarrassed them so that was a punishment for them." While he and his cousin were armed, no one was shot. In denying that he aimed a pistol at an individual in a subsequent incident, the respondent stated "I only aimed a pistol near that tree against those Communists when I was telling them to do that. I will never aim the pistol at anybody else."³⁶

[43] The applicant called two other witnesses, Mrs. Tetiana Mykolaivna Shimonovska and Mrs. Yevhenya Serhiyivna Panasyuk, whose evidence included references to the tree incident. They recalled the tree incident as having occurred in the winter. Both women knew Mr. Kisluk from their school days in Svynaryn. Only one of them implicated Mr. Kisluk in the tree incident. The evidence of both was sketchy at best. I attach little, if any, weight to their generally uncertain testimony.

[44] Principally on the basis of the respondent"s own evidence, I find that he, together with his cousin, while both were armed with pistols and were wearing German military uniforms, embarrassed certain Ukrainians, apparently Communists, by forcing them to "exercise" as a punishment for the treatment received by the respondent"s family in 1939.

(ii) The killing of Jews in Sushibaba

[45] The applicant relies on the testimony, substantially uncontradicted, of Mrs. Nadiya Mykolayivna Kotiuk concerning the killing of over 700 Jews in Sushibaba, some three days after having been forcibly assembled in what she called "the ghetto in Ozeryany". Mrs. Kotiuk has lived all her life in Ozeryany.

[46] The Jews were from various villages in the Turiysk Raion and the city of Kovel.

[47] The Ozeryany ghetto contained a school building which the Jewish population had used for worship. The school building was surrounded by fences with barbed wire on top. Those who gathered up the Jewish people into the ghetto were Germans. She identified the guards as "... policemen, the "mantels". ... The word means the one who kills." The policemen who were guarding the ghetto were armed. They were Ukrainians from Ozeryany, some of whom she knew.³⁷

[48] Mrs. Kotiuk did not witness the killing of the Jews in Sushibaba. She described their removal from Ozeryany in these terms: "The people were screaming and the Germans were herding them out of that place, and they were made to go to Sushibaba village. ... There was a cart following the people there and the Germans used to kill those who couldn"t walk and put them on that cart and transport them to a cemetery and those people were killed in that cemetery." In cross-examination, Mrs. Kotiuk stated: "When the people were being killed, it was the police that went and performed the killings, but I was not there."³⁸

[49] She remembers seeing, as a young girl, the site where the Jews were buried. She testified that her mother, despite her weak heart, was among those who were required to cover the burial site.

[50] Mrs. Kotiuk attended at the Commission"s visit of the burial site in Sushibaba. She led the Commission to a monument with the following inscription in Ukrainian: "Here 762 persons of Jewish nationality are buried in memory of our co-villagers." According to Mrs. Kotiuk, the monument was erected in recent years.

[51] Mrs. Kotiuk was approximately ten years of age when the Ozeryany and Sushibaba events occurred. She testified at quite some length concerning the assistance she and her brother brought to some of the children that were being held in the ghetto. She testified about seeing the Germans kill a Jewish man who had been hiding. She added that she saw a policeman kill a young boy. On cross-examination, she identified the policeman as a person from Ozeryany.³⁹

[52] Mr. Kisluk acknowledges that he was told about the execution of Jewish people in Sushibaba but denied that the police at Makovichi had any involvement:

Q. ... Mr. Kisluk, I believe at some point in your testimony here or in discovery you acknowledge that you had heard of the execution of Jewish people at Sushibaba?

A. Yes, that's true, I was told.

Q. Sushibaba is very close to Ozeryany?

A. Yes, close. Yes.

Q. Did your station, your police at Makovichi, have participation in that action?

A. No, no.

Q. Why do you say that?

A. Because I was told that there was nobody from our station who was there.

Q. But if another witness comes and again testifies that Ukrainian police had guarded that ghetto and marched Jewish people along the road, you"re saying this would not be police from your station?

A. Yes. Yes.⁴⁰

In these responses, Mr. Kisluk denies that his police station participated in the activities in Ozeryany and Sushibaba. There is no denial, however, of Mrs. Kotiuk"s assertions that Ukrainian police, in particular officers from Ozeryany, were involved in these actions.

[53] Mrs. Kotiuk does not know Mr. Kisluk nor does she implicate him directly in any of the events in Ozeryany and Sushibaba. However, the events took place within fifteen kilometres of Makovichi. Mrs. Kotiuk testified that the killings in Sushibaba occurred as early as 1941, although the applicant alleged the time to be "in the late spring or early summer 1942" in the summary of facts and evidence. I do not attach much significance to this discrepancy. One could infer from Mr. Kisluk"s responses that he was a police officer at the relevant time. In any event, I am satisfied that Mr. Kisluk knew of these killings either prior to or while he was a police officer in Makovichi.

[54] The testimony of Mrs. Kotiuk was clear and straightforward. She remembers the horrific incidents she saw as a young girl of tender years in Ozeryany and Sushibaba. Her demeanour during her examination and during the site visit was that of a person who vividly recollected the incidents in Ozeryany and Sushibaba. She presented as sincere, serene and with no motivation other than to share her experience with this Court.

[55] I accept her testimony that Ukrainian policemen from Ozeryany were involved in guarding the ghetto and in marching the Jews to Sushibaba. I make no finding concerning the involvement of the Ukrainian policemen in the killing of the Jews in Sushibaba. I conclude that the policemen in Makovichi, including the respondent, as would other residents in the immediate area, knew of the executions of the Jews in nearby Sushibaba. This is consistent with the respondent"s general knowledge that people were taken away and disappeared during 1942.⁴¹

(iii) The beating of Moshko Goldshmidt in Chirnihiv

[56] The applicant"s witness concerning this incident is Volodimir Maximovich Mischuk.

[57] Mr. Mischuk was raised in the village of Chirnihiv, some three kilometres from Kupychev and only a few kilometres from Svynaryn. He knew Mr. Kisluk from grade school. Mr. Mischuk was in the fifth grade when Mr. Kisluk was in the seventh grade.

[58] Mr. Mischuk testified that he and Mr. Kisluk were also schoolmates with two of the daughters of one Uliyan Kosiuk, Maria and Valia. During a visit to the Kosiuk residence in Chirnihiv, Mr. Mischuk testified that he saw Mr. Kisluk, accompanied by another person named "Myron", beat and threaten to shoot Moshko Goldshmidt. In Mr. Mischuk"s words:

We were standing there, sitting and talking, and the master of the house said: oh, see, they"re going. And I saw Sergei and Myron, I knew them then. They jumped off the cart on which they were going.

And Moshko stood up. They ran into the house and Moshko was scared. He had those yellow patches, here and there (and the witness indicates the front and the back of his jacket).

They grabbed Moshko. I remember very well, even today, Sergei grabbed Moshko and threw him down to the floor. And they ran and they were beating them with their feet.

And they started beating Moshko with their feet, and he tried to run away outside on his four pads, on his four legs. And Moshko did get outside. They threw him out there. But Sergei drew a handgun from the back holster and probably he was going to shoot him. But then Kosiuk Uliyan ran to him and started pleading, please Sergei.

And Kosiuk Uliyan started pleading, Seriozha, Seriozha, don"t do it in my house. And then Sergei hid his gun, and Moshko left, and I went to my house. And they didn"t do me any harm.⁴²

Mr. Mischuk stated that the yellow patches worn by Mr. Goldshmidt were to indicate that he was a Jew. Both Mr. Kisluk and Mr. Mischuk agree that "Seriozha" or "Serezha" are nick names for "Sergei".⁴³

[59] According to Mr. Mischuk, Mr. Kisluk and Myron were wearing German military uniforms and implied that they had returned to the region from Germany for holidays.

[60] He suggested that the event occurred in the late spring or early summer. The Kosiuk, Goldshmidt and Mischuk families were all from the same village. The younger Kosiuk daughter was in Mr. Mischuk"s class. The older daughter was in Mr. Kisluk"s class. Mr. Mischuk was paying a social visit to the Kosiuk family: "I just dropped by because we went to school together." Mr. Mischuk thought that Mr. Kisluk and Myron were coming from Kupychev for a social visit because they went to school with Uliyan"s older daughter, Maria. Mr. Kosiuk and Mr. Goldshmidt were older men and friends. Mr. Goldshmidt was too old to work anymore. His wife was a kind of peddler. Mr. Goldshmidt would also visit with Mr. Mischuk"s father.⁴⁴

[61] Mr. Kisluk denied having heard of Uliyan Kosiuk. He acknowledged having returned to the Svynaryn region with his cousin Myron Trotsiuk and that he was wearing a German military uniform and was in possession of a pistol loaned to him by his sergeant. When asked if he entered Mr. Kosiuk"s house with Mr. Trotsiuk and beat Mr. Goldshmidt, he responded: "It"s a provocative lie, there was nothing like that, by KGB." When asked if he ever threatened to shoot Mr. Goldshmidt with his pistol, Mr. Kisluk responded that the only time he ever aimed a pistol was on the occasion of the tree incident. He denied knowing Mr. Mischuk but allowed that he may have spoken with him once: "his name is not known to me". When asked for his explanation of Mr. Mischuk"s reason for testifying concerning this incident, Mr. Kisluk responded: "I can only guess that it is the job of the same people of the KGB. And who knows, maybe he was a devoted Communist. But I"m telling you there was no such event."⁴⁵

[62] Counsel for the respondent argued that Mr. Mischuk"s evidence should be discounted in view of his antipathy for Ukrainian nationalists and his post-1944 involvement, under Soviet rule, as head of the village council and chairman of the collective farms. Reference was also made to some discrepancies, in the respondent"s view, of Mr. Mischuk"s description of the uniform worn by Mr. Goldshmidt"s assailants. None of these arguments detracts, in my respectful opinion, from Mr. Mischuk"s convincing account of his recollection of this incident.

[63] Mr. Mischuk"s testimony is specific with respect to the number of persons who were involved in the incident. He was able to associate Mr. Kisluk with someone, by the name of Myron, who had left with him for Germany. I infer this to be Mr. Kisluk"s cousin, Myron. Mr. Mischuk"s reference to Myron as the person who accompanied the respondent, is relevant. The respondent baldly denies the incident: "It"s a provocative lie ... by KGB".⁴⁶ He provides no other significant evidence. He does not explain Mr. Mischuk"s evidence of having attended school with the respondent and with the Kosiuk daughters. He does not explain Mr. Mischuk"s reference to Myron.

[64] Mr. Mischuk was credible. His testimony was clear and specific. On one occasion, while acknowledging that he might not recognize Mr. Kisluk at this time, the witness asked whether the respondent was present at the hearing because "... I would have immediately told him everything. I would have told him everything as it was." This was a spontaneous intervention by the witness. He was told by the applicant"s counsel that the respondent was not present.⁴⁷ Mr. Mischuk has not seen Mr. Kisluk since the day of the incident. He had heard that he had moved to Canada. He knew that Mr. Kisluk had visited his village in 1992 and when asked in cross-examination what he would have said to him had he seen him in 1992, the witness stated: "I wanted to talk to him directly. I wanted to tell him, you got into the wrong place and you did the wrong thing. And you are not right. Why did you need to hurt that Moshko, why did you need to do that? Why did you need to go SS when you were Ukranian?"⁴⁸

[65] The comportment and demeanour of Mr. Mischuk during his testimony satisfied me concerning his credibility. I prefer his clear recital of the specific facts of this incident over the respondent"s bald denial. Mr. Mischuk, in his spontaneous statements expressing his desire to confront Mr. Kisluk with this incident and with "his need to go to SS", impressed me as being as upset now, as he was some fifty-five years ago, with what he witnessed in the Kosiuk home. This was one Ukrainian"s frustration, to say the least, with the conduct and activities of another Ukrainian. I accept his recollection of the incident. I find that the respondent actively participated in the beating of Moshko Goldshmidt and drew a handgun until he was convinced to let his victim go.

(iv) The killing of a Makovichi police domestic servant

[66] The applicant"s witness concerning this incident is Mr. Iosyp Yakovich Shklyaruk. Mr. Shklyaruk was fifteen years of age in March 1943, when he states this incident occurred.⁴⁹ He has always lived in Makovichi.

[67] He first knew the respondent in 1942 at the police station in Makovichi. The police officers, approximately twelve in number, were stationed in the large family residence of Viaceslav Polivka, a person of Czech origin. The policemen were Ukrainians, with a possible exception of one. Mr. Shklyaruk came to know some of the police officers because he would be hired on occasion by Mr. Polivka to do outdoor seasonal work on the property.⁵⁰

[68] A young woman, approximately 20, whom he described as Jewish, knitted sweaters and socks for the policemen. He stated that he first knew this woman in 1942.⁵¹

[69] In March 1943, while accompanied by his brother as they were walking to visit his godfather, he saw this young woman walking next to the respondent and followed by another policeman whom he identified as Mr. Teshyk. Both were wearing a uniform and Mr. Teshyk was carrying a rifle. He described the young woman: "She was very pretty. She was a Jew."⁵²

[70] The two police officers and the young woman disappeared into the woods and some minutes later, Mr. Shklyaruk heard a rifle shot. He did not see the shooting but he did see the victim"s dead body some moments later. He saw her from a distance of approximately five or six metres.

[71] It is of interest to note the respondent"s response, in his pleading, to the applicant"s allegation. The applicant alleged:

24. In March 1943, the Respondent participated in the killing of a young Jewish woman. The Respondent and another policeman from the Makovichi police station were seen walking in the direction of Svynaryn. The Respondent was holding a young woman by the arm and they were followed a few steps behind by the other policeman. The woman, approximately 18-20 years old, was known as a Jew who worked at the Makovichi police station knitting sweaters and socks for the policemen. The Respondent, the other policeman and the Jewish woman went into the forest and few minutes later a single shot was heard. Witnesses went in the direction of the gun shot and found the Jewish woman"s dead body. The Respondent and the other policeman were seen walking away.

The respondent"s pleading states:

40. In regard to paragraph 24 of the Applicant"s Summary, the Respondent indicates that he did know of the woman that is referred to in that paragraph, but knew her as a very good cook in the employ of the police and not as she is supposed to have been in the Minister"s statement, at the police station knitting sweaters and socks for the policemen.

41. The Respondent denies ever taking the person in question into the woods as is alleged, nor having anything to do with her that would bring her harm, and his recollection is, which unfortunately was by way of repute and not direct knowledge, that whatever happened to her would have happened not in 1943 when the Germans had been in occupation for a significant period, but in 1941 when the Germans first arrived and their executions squads were at their busiest. [Emphasis added.]

[72] The respondent agrees that a young Jewish woman, aged approximately 20, carried out domestic work in the police station. He also acknowledges having been told by his commandant that this woman, along with two other older Jewish domestic workers at the police station, disappeared and that he learned of their execution some fifty years later in 1992. He denied his involvement in the incident recounted by Mr. Shklyaruk and denied that there was a policeman named Teshyk. In the respondent"s words: "I did not escort her and in that time in '43 I was already in [the Ukrainian Partisans Army] in Vovchuk and there was no such person as Teshyk. ... I was [in UPA] already on February 27, more or less, 26 or 27. I don"t know."⁵³

[73] In paragraph 41 of the respondent"s summary of facts and evidence, it is alleged that whatever happened to this young woman took place in 1941. On discovery, the respondent answered that the younger Jewish woman "... was there until March, 1943".⁵⁴ He said that the year 1941, set out in his summary of facts and evidence, was incorrect. At the hearing, the respondent testified that he thought the younger woman worked in the police station until September 1942.⁵⁵ There is no reason given by the respondent for having changed the date of the termination of the woman"s work in the police station, from March 1943 to September 1942. Nor is there any explanation for having initially alleged in his summary that the incident occurred in 1941.

[74] There are a number of similarities between the testimony of Mr. Shklyaruk and that of the respondent. Both agree that the woman existed and that she was executed. Both agree that the police station in Makovichi was in a residence owned by a family of Czechoslovakian origin.⁵⁶ Both agree that the police in Makovichi used Jewish women for domestic work. Mr. Shklyaruk says she sewed; the respondent states she was a cook.⁵⁷ Both agree on the identity of the commandant of the police force in Makovichi. They agree on the identity of one other officer and had different names for the remainder. Both agree that virtually all the policemen in Makovichi were Ukrainians. Both agree that the policemen would wear arm bands from time to time. Both agree that the policemen in Makovichi would receive their orders from German forces in Turiysk.⁵⁸

[75] The respondent was asked to explain why Mr. Shklyaruk would have brought evidence of this incident to this proceeding, some fifty-five years after it occurred:

Q. Mr. Kisluk, are there any facts of which you are aware which could possibly explain why Mr. Shkliaruk would come to court more than 50 years after this event and identify you as the person who did this?

A. The reason is that he didn"t know who was the second policeman. The KGB didn"t tell him. And only now he use some names. But there was no such policeman in our station. Maybe KGB gave him enough sausage.

Q. So your position, Mr. Kisluk, is that this evidence is a product of KGB prompting or KGB fabrication?

A. Basically they set out to destroy my family back then and they keep doing this even until now and they would if they could because that girl said that she was tortured in order to say something against me, that Tetiana Shimonovska. Harassed.⁵⁹

The respondent stated that he did not know of Mr. Shklyaruk prior to this proceeding. There is no evidence to support the respondent"s speculation that Mr. Shklyaruk"s testimony is a fabrication encouraged by the KGB. Even accepting Mr. Shklyaruk"s partisanship as a Communist and the respondent"s perception of himself as a victim during the Soviet occupation, this testimony cannot be rejected on the mere assertion by the respondent that it was encouraged or coerced by the KGB.

[76] Mr. Shklyaruk"s testimony was clear and detailed. He was alert and without hesitation in presenting his evidence. He was a second witness who regretted the respondent"s absence from the proceedings in Ukraine⁶⁰ and there was nothing in his comportment to suggest that the substance of the incident he described was something other than that which he witnessed over five decades ago.

[77] His testimony in 1998 was substantially consistent with the detailed statement he provided to officials of the Royal Canadian Mounted Police in 1994 and which he says he had not seen, prior to his cross-examination, since signing it four years earlier. In his written statement, he indicated that he remembered the village but not the name of the police officer accompanying the respondent with the young Jewish woman. At trial, he volunteered that the second officer"s name was Teshyk. This is not a reason to discount his evidence.

[78] The substance of Mr. Shklyaruk"s evidence against the respondent was recited in paragraph 24 of the applicant"s summary of facts and evidence. These allegations, sufficiently detailed to include the date of March 1943, provided notice to the respondent of the seriousness of the charges. The respondent initially alleged that whatever happened to the young woman would have occurred in 1941. In his subsequent sworn testimony, he made conflicting statements concerning the termination date of her domestic service with the police. On discovery, he said that her work ceased in March 1943, and at the hearing he stated that she was there until September 1942. At the very least, this speaks to the lack of care the respondent brought to his testimony in this proceeding, particularly in the context of this important allegation. In this instance, however, I have further concluded that his reference to the different dates puts his credibility into serious question.

[79] I accept Mr. Shklyaruk"s evidence of his recollection of this event, and the respondent"s participation in it, over the latter"s bald denial. Put simply, I do not believe that Mr. Shklyaruk"s evidence is fabricated. Mr. Shklyaruk"s testimony implicates the respondent in this incident and contradicts, in a significant way, the latter"s assertion that the functions of the police force in Makovichi were limited to the policing of chicken thefts and domestic abuse. On the balance of probabilities and after scrutinizing the limited evidence with greater care in view of the serious allegation, I find that the respondent, accompanied by another police officer from Makovichi who was armed, forcibly escorted the domestic servant to her execution and was present when she was shot.

THE RESPONDENT"S ACTIVITIES BETWEEN 1943-1948

[80] According to the respondent, he ended his services as a policeman early in 1943 to join the Ukrainian Partisan Army which was fighting the Germans and Soviet partisans. He suggests that he joined the U.P.A. in late February 1943, "[o]n the 26th or 27th".⁶¹ Between March and August 1943, he was at Kurin staff headquarters, where he "... was looking after the tailors making uniform and the shoes. And I was also responsible for provisions ...".⁶² In September 1943, he was sent to Kolki, a town some seventy kilometres east of Turiysk Raion, to be trained as a radio operator but certain hearing and voice particularities made him unsuitable for this function.⁶³

[81] While in the U.P.A. fighting forces, the respondent sustained a leg injury in November 1944. He remained in a bunker, near the village of Berezowicze, for some three weeks to nurse his wounds. Early one morning while in the bunker, the respondent, together with two other U.P.A. members, was captured by the Germans. In the respondent"s words, "... the Red Army wasn"t even in Zhitomir yet". Zhitomir is some 300 kilometres east of where the respondent states he was captured by the Germans. The respondent and two fellow U.P.A. members were taken to the river Bug to dig trenches.⁶⁴

[82] Berezowicze is situated some twenty kilometres south of Makovichi and approximately fifty kilometres west of Lutsk. In cross-examination, the applicant"s counsel challenged the respondent concerning the date at which he suggests he had been captured by the Germans:

Q. Mr. Kisluk, I"m going to suggest to you that by November of 1944 the Red Army had already advanced as close as Warsaw. Do you agree with that or not?

A. Yes, that is correct.

Q. So if that"s the case then how is it that you"re being captured by Germans who are making an orderly retreat? Please explain that to me.

A. When did the Germans capture me?

Q. You said November, 1944.

A. Yes, but from that the front started to move really fast. The Bolsheviks were advancing really fast.

Q. Again I suggest, Mr. Kisluk, that at the time of your capture, you say in November of 1944, this is already well behind the Red Army front?

A. When I was caught Lutsk wasn"t yet in the Bolsheviks" hands. Maybe somewhere the front was broken and they went ahead.

Q. I put it to you, Mr. Kisluk, that you could not have been captured in the fashion that you have described because the Red Army had advanced well beyond the position that you were in.

Do you agree or not with that?

A. (Witness in English) I don"t agree.⁶⁵ [Emphasis added.]

[83] In his direct examination, the respondent volunteered that the Red Army had yet to advance to Zhitomir, some 300 kilometres east of Berezowicze, where he says he was captured by the Germans. In cross-examination, he agrees that by November 1944, the month he says he was captured, the Red Army had advanced to Warsaw, another 250 kilometres north-west of Berezowicze. When confronted with the discrepancy, he lamely suggests that "maybe somewhere the front was broken". One might have expected a more vigorous defence of what the respondent considered to be the truth.

[84] Early in this proceeding, in his own summary of facts and evidence, the respondent referred to the incident of being "scooped up by a German sweep" while recovering from his leg injury in the bunker. It was the respondent who introduced his capture by the Germans as a factual issue. The respondent was testifying in a proceeding which puts in issue his Canadian citizenship. His testimony concerning the date and the circumstances of his capture, in the context of the location of the Red Army advance, shows at best a lack of care and, more likely, a lack of credibility concerning such an important event.

[85] The respondent then retreated with the German troops from Ukrainian and Polish territory into Germany. He was given a horse-driven cart to carry ammunition. He was not paid by the Germans for this work but he was provided with some quantities of food. At first, the respondent stated he was not guarded by the Germans but was accompanied by military personnel. When he suggested that he was forced to do this work, he was asked to explain why the Germans would not have had him continually under guard. Again, the respondent"s response was equivocal and he acknowledged some persons did "escape".⁶⁶

[86] During this retreat, a low flying German aircraft was dropping bombs and, according to the respondent, "... there was bomb jumping on my back nobody believes me. So I just crossed myself and I saw that was the end of me. And then after that from cold or something I got five or so sores on my [neck]." He was placed in a German military hospital for several weeks and, upon his recovery, he worked as a nurse in the same facility until the arrival of American troops in April 1945. He was then transferred by the Americans to the German town of Bad Nauheim.⁶⁷

[87] In Bad Nauheim, the respondent states that he was housed, with two other persons, in a room on the top floor of the Grand Hotel. The Americans assigned him to operate the elevator in the hotel, work which he carried out for "[m]aybe about half a year".⁶⁸ The hotel was occupied by the U.S. army and General Patton, according to the respondent, was a daily passenger on the elevator. He was paid a salary and provided with room and board for these services.

[88] The respondent then enrolled in a driver training course to obtain a motor vehicle licence. He obtained his licence on October 23, 1946⁶⁹ and was then able to operate vehicles for American military personnel. He was paid a salary and provided lunch for these services.

[89] In cross-examination, the respondent stated that he operated the elevator for "maybe a month, maybe two, maybe three. I don"t know."⁷⁰ The respondent was then confronted with the time gap between the period he worked as an elevator operator, from one to six months beginning in the spring of 1945, and his new employment driving motor vehicles after obtaining his operator"s licence in October 1946:

A. It means that I worked as an elevator boy approximately until August probably because then I was learning and I was trying to pass that examination and I went and passed the examination and then two or three weeks after I passed it I got that job.

Q. My problem is with the year, Mr. Kisluk, because you said that the Americans liberated the hospital in 1945 and if you worked as an elevator boy until August that would only take us until August of 1945, while your driver"s license was issued in October of 1946.

Can you explain this for me?

A. I want to say that I worked as an elevator boy until August of 1946. I don"t know exactly what time it was but that"s how it was. After I obtained that license I left in another job.

Q. Just to understand, it"s not a few months now, we"re talking about operating the elevator for perhaps as long as a year. Is that correct now?

A. Yes. It may have been like that. I didn"t really count the time. Yes, maybe it was for a year. It was a good job, I met all American generals. They all called me George. Even once I had a drink with Eisenhower, General Eisenhower"s son John. His name was John. Lieutenant.

Q. So you agree with me that, now that I have shown you this driver"s license with a date of October, 1946, that has helped you with remembering how long you have now been an elevator operator?

A. Yes, that"s true. That"s true.⁷¹

[90] The respondent sought assistance from the United Nations Relief and Rehabilitation Agency during the interim period between his work as an elevator boy and as a motor vehicle driver. He applied at a place approximately one hour by train from Bad Nauheim. He was met by officials who spoke Ukrainian and was simply requested to state where he was born. He was not asked to fill out any documentation. He identified the facility as a camp for displaced persons. He was issued "... a small card, DP, so I don"t have to stand in a lineup for a movie; I showed that card and went straight to a movie".⁷² He could not recollect whether his name was on the card. He used the card for no other purposes.

[91] The respondent stated that he worked as a driver for the Americans until two or three months prior to his departure from Bad Nauheim for Canada in December 1948.⁷³ The facts surrounding the respondent"s departure for Canada will be canvassed after a review of the evidence concerning Canada"s immigration screening process in Europe in late 1948.

THE IMMIGRATION SCREENING PROCESS: COLLABORATORS

(i) The government documents

[92] Security screening of post-World War II potential immigrants, including displaced persons, from Europe was considered in 1947. On February 5, 1947, Cabinet agreed that "... security screening of aliens applying for entry into Canada as immigrants be required only in cases in which it was felt that the information available to immigration authorities needed to be supplemented by special security investigations".⁷⁴

[93] In August 1947, a third immigration inspection team was added to the first two sent to Germany in March. Each team consisted of an immigration officer, a medical officer and a security officer. A team could be supplemented by an official from the Department of Labour and by interpretation staff.⁷⁵ By August 1948, the Canadian screening organization in Europe included thirteen immigration officers, eleven security officers and ten medical officers. These officials comprised some nine teams directed from headquarters in Karlsruhe, Germany.⁷⁶

[94] In a report presented to the Security Panel on March 30, 1948, the Royal Canadian Mounted Police summarized the category of immigrants subject to security clearance:

Five types of immigrants are dealt with under methods that vary in each case and which have been agreed upon as between Immigration and R.C.M.P. These types are:-

(a) Near Relatives - Sponsors resident in Canada.

(b) Near Relatives - Displaced persons. Sponsors resident in Canada.

(d) Agriculturists - Selected by Railway Colonization officials.

(e) All other immigrants not falling within the first four categories and subject to admission by special Order-in-Council such as clerks, teachers, professional men, scientific workers, etc.

The main distinction in method of examination is found between that followed in respect to types (b) and (c) (displaced persons) and that followed in respect to types (a), (d) and (e).

The displaced persons are examined verbally in their camps. Their papers are studied and such records as may be available are searched.

Applications of other prospective immigrants - type (a), (d) and (e) - are checked against the records of our contacts but the applicant himself is not examined by the security investigator.

Acceptance or rejection by the security investigator is final: Applications to appeal from rejection have been turned down on the grounds that such a procedure is impracticable.⁷⁷

This R.C.M.P. report also provided statistics concerning a backlog of some 8,000 uncleared applications and noted information with respect to "Storm Troopers and Collaborators":

D.P."s bearing the blood grouping tattoo mark of a Mazi [sic] Storm Trooper are rejected on security grounds. Likewise persons from German occupied countries known to have collaborated with the Nazi machine or served voluntarily with the German Forces are rejected.⁷⁸ [Emphasis added.]

This is evidence of a concern to screen collaborators, at least as early as March 1948.

[95] On November 20, 1948, the Royal Canadian Mounted Police, in a memorandum entitled Screening of Applicants for Admission to Canada, set out the grounds for rejection during security investigation:

Any one or more of the following factors, if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission:

(a) Communist, known or strongly suspected.

Communist agitator or suspected Communist Agent.

(b) Member of SS or German Wehrmacht.

Found to bear mark of SS Blood Group (NON Germans).

(d) Criminal (known or suspected).

(e) Professional gambler.

(f) Prostitute.

(g) Black Market Racketeer.

(h) Evasive and untruthful under interrogation.

(i) Failure to produce recognizable and acceptable documents as to time of entry and

residence in Germany.

(j) False presentation; use of false or fictitious name.

(k) Collaborators presently residing in previously occupied territory.

(l) Member of the Italian Fascist Party or of the Mafia.

(m) Trotskyite or member of other revolutionary organization.

NOTE

Any general information to the discredit of the applicant but which is not a security matter, such as nationality, applicant being disciplined or unwilling to work, etc., should be reported to the Immigration Visa Consul or Officer for his attention.⁷⁹ [Emphasis added.]

[96] This list was developed during the summer months of 1948. In a memorandum of July 26, 1948, the officer-in-charge of Special Branch in Ottawa had written to his counterpart in London, England concerning the organization Visa Control and summarized the policy to be adopted:

4. It is felt here, therefore, that the following policy should be adopted. We will clear the individual for security provided there are no other grounds for rejection such as known Communist, criminal, collaborator, etc. The matter of whether or not he or she should be accepted on a straight nationality basis should then be left to the Visa Officer.

...

6. Would you, therefore, have these instructions conveyed to our men in Germany and Austria and also to our personnel situated at Rome, The Hague, Brussels, Paris, etc.⁸⁰ [Emphasis added.]

This memorandum was written upon the observations made by the Assistant Commissioner of the R.C.M.P. when visiting his security officer colleagues in Europe, including Germany. The reference to "collaborator" in the memorandum is further documentary evidence of an early concern for the screening of such persons.

[97] The draft list, prepared by the officer in London, England responsible for overseeing the field work of R.C.M.P. security officers in Europe, did not include paragraphs (k), (l) and (m), supra paragraph 95. It was in response to the original draft from his colleague in London, that the officer-in-charge of the Special Branch in Ottawa noted: "There is one class of undesirable immigrant that was not shown, i.e., collaborators presently residing in previously occupied territory. This type of person would appear to be definitely undesirable as an immigrant and we feel should be included."⁸¹ It was subsequent to this exchange that paragraph (k) was added to the list.

[98] A Security Panel document of March 29, 1949 (Security Screening of Immigrants Present Problems) noted the difficulty in screening behind the Iron Curtain:

16. The R.C.M.P. have now advised Immigration and the Department of External Affairs that attempts to screen persons who desire to come forward from "Iron Curtain" countries are proving impossible to carry out. No security information is obtainable in the country of origin; there is only the London check. This is a hit-and-miss method which may only catch one in several hundred or a thousand and would only show up well known Communists or Nazi collaborators. The R.C.M.P. therefore consider that screening of applications behind the "Iron Curtain" is now impossible. The only exception is Czechoslovakia for which there are good sources outside the country itself. These sources will eventually disappear but for the present are useful.

...

19. It is pointed out that:

(a) Communist organizations abroad are doing everything possible to infiltrate Communists into this country. Other groups are doing the same for former Nazis and Nazi collaborators. There is proof that such operations have been planned and in a number of cases have been successful.

(b) If immigration is to continue at its present volume, it must be clearly understood that security risks are involved and must be accepted. Security screening will necessarily be incomplete and it cannot be assumed that an effective screen exists through which all persons coming to Canada must pass.

(c) If the present situation is considered so serious that effective security screening must be established and maintained, then the present volume of immigrants to Canada must be sharply reduced.

(d) An increase in the number of Canadian Security Officers does not meet the situation in any way for the reason that this country does not maintain an overseas intelligence or security organization and we are dependent upon the records of those friendly countries which do collect and collate such information.⁸² [Emphasis added.]

This Security Panel document, particularly the extract from paragraph 19, written within four months after the R.C.M.P. memorandum of November 20, 1948, indicates that there existed concern with Nazi collaborators being infiltrated into Canada, not only by Communist organizations but also by "other groups". This is documentary evidence that paragraph (k) of the R.C.M.P. memorandum of November 20, 1948, whatever its meaning, may not necessarily indicate that the government"s concern was limited to collaborators "presently residing" behind the Iron Curtain.

[99] On August 22, 1949, Cabinet was advised by the chairman of the Security Panel that: "The only categories under which applicants are rejected on security grounds are: known or strongly suspected communists; members of the Nazi party of Germany; other Fascist parties or any revolutionary organization; collaborators, and users of false or fictitious names or documents."⁸³ Again, one does not see the word "collaborators" limited in the sense noted in paragraph (k) of the R.C.M.P. memorandum.

[100] On October 28, 1949, Cabinet Directive No. 14 (Rejection of Immigrants on Security Grounds) concerning the necessity not to disclose the reason for withholding permission to enter Canada was issued by the Privy Council Office. The document stated in part:

Displaced persons and certain classes of prospective immigrants desiring to enter Canada are investigated under established procedures by the R.C.M. Police. Persons in specified categories (i.e., Communists, members of the Nazi or Fascist Parties or of any revolutionary organization, "collaborators", and users of false or fictitious names or documents) are regarded as inadmissible under the Immigration Act and are refused a visa.⁸⁴

A Cabinet Directive, circulated to several government institutions, is a document to which I would attach greater importance than another single memorandum of an individual official. A Cabinet Directive is usually reflective of government policy enunciated after extended review and consideration. Cabinet Directive No. 14 does not limit the government"s concerns with "collaborators" in the same way as paragraph (k) of the R.C.M.P. memorandum.⁸⁵

[101] In 1951, a review of the R.C.M.P. list of November 20, 1948 referred to paragraph (k) in these terms:

Category "K" - Collaborators, present blanket cause for rejection. Recommended collaboration, in itself, be not a cause for rejection, except for those whose crimes are such that they are not desirable.⁸⁶ [Emphasis added.]

[102] In April 1952, the Security Panel was asked to consider narrowing the prohibition on collaborators while noting the dissenting view of the R.C.M.P.:

10. ... Present immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits.

11. The consensus of opinion of missions consulted is that while we should continue to enforce restrictions against those guilty of major crimes, collaboration should now be ignored except where a clear and present danger to Canada or Canadian institutions is involved. ...

12. However, the RCM Police incline to the view that collaboration itself does involve a danger to Canada and Canadian institutions, because they believe that a person who has been disloyal to his country of birth may, if the occasion arrises, be equally or more disloyal to a country of adoption. The RCM Police would therefore be reluctant to accept any relaxation of restrictions at present imposed on former collaborators.

In May 1952, the Security Panel appears to have adopted the view of the R.C.M.P. Screening for collaborators would continue. The category was now defined as: "(c) Former collaborators who should be excluded on grounds of moral turpitude, except minor collaborators whose actions resulted from coercion."⁸⁷

[103] I will return to my assessment of these government documents after considering the testimony of immigration and R.C.M.P. officials.

(ii) The testimony of immigration officials

[104] The respondent entered Canada on January 13, 1949. His travel document was issued by the International Refugee Organization on December 9, 1948 at the I.R.O. Resettlement Centre in Butzbach, Germany. The respondent"s Canada Immigrant Visa was stamped on this I.R.O. travel document on December 20, 1948.

[105] The applicant introduced three sample I.R.O. application for assistance forms.⁸⁸ These application forms were being used by the I.R.O. or its predecessor Provisional Council by 1947.⁸⁹ Each required applicants to disclose their residence and place of employment for the last twelve years. Handwritten markings, on an I.R.O. document instructing officials on the use of the application for assistance forms, noted the difficulties that would be encountered in attempting to obtain this information.⁹⁰

[106] The Eligibility Directive, issued by the P.C.I.R.O. on June 25, 1947, included among persons who would "not be of the concern of the Organisation", the following:

(a) War criminals, quislings and traitors:

(b) Any other person who can be shown: -

(i) to have assisted the enemy in persecuting civil populations of countries, Members of the U.N.;

(ii) to have voluntarily assisted the enemy forces since the outbreak of the Second World War in their operations against the U.N. Mere continuation of normal and peaceful duties not performed with the specific purpose of aiding the enemy against the allied or against the civil population of territory in enemy occupation, shall not be considered to constitute "voluntary assistance". Nor shall acts of general humanity, such as care of wounded or dying, be so considered except in cases where help of this nature given to enemy nationals could equally well have been given to Allied nationals and was purposely withheld from them.⁹¹

This same document also provided the I.R.O. definition of displaced person:

The term "displaced person" applies to a person who, as a result of the actions of the authorities of the Nazi and Fascist regimes has been deported from or has been obliged to leave his country of nationality or of former habitual residence, such as persons who were compelled to undertake forced labour or who were deported for racial, religious or political reasons.⁹²

[107] Between June 1948 and April 1952, Roger St. Vincent served with Canada"s immigration mission in Karlsruhe, Germany. Very shortly after his arrival in June 1948, he was assigned to accompany a team of three Canadians, an immigration officer, a medical officer and a security officer, to screen potential immigrants from the processing centre of the International Refugee Organization in Funk Kaserne, just north of Munich. After observing some five cases, he took over the functions of the immigration officer on that team.

[108] Mr. St. Vincent stated that the Application for Immigration to Canada form would be filled out by persons who worked in the Canada section of the I.R.O. camp and would be based on the information provided in the I.R.O. application form. The Canadian application form included the person"s surname, first name, date of birth, place of birth, sex, occupation, family members in dependance, and education, employment and residential information to cover the period beginning in 1938-39.

[109] The potential immigrant would first be interviewed by the security officer. If the security clearance was not given, the person would be referred to the immigration officer. It was Mr. St. Vincent"s practice, upon verification of the file material, to advise the person that the requirements for immigration to Canada had not been met. He would decide to forego the medical examination in these circumstances. Where the person was security cleared, the medical officer would proceed with his examination prior to the final interview with the immigration officer. When he was fully satisfied with the answers he received, Mr. St. Vincent"s interview with the immigrant would last somewhere between ten and fifteen minutes. Where the applicant was not cleared for security, the immigration officer had no discretion other than to refuse the application. If the person was cleared for security, the immigration officer had the discretion, in the light of all the information, to decide to accept or refuse the application. For Mr. St. Vincent, the threefold interview process was the same in all the cases he was involved in.

[110] Concerning the respondent"s I.R.O. travel document, Mr. St. Vincent testified that he knew Mr. Ed Schramec. He had visited the I.R.O. processing centre in Butzbach on two occasions. He stated that the interview process carried out in Butzbach was the same as in other I.R.O. centres. He confirmed that his interview would never be limited to asking the sole question: "Where are you going to?"⁹³

[111] Mr. St. Vincent confirmed that the same procedures were followed in all the camps. Immigration officers never sat in on interviews conducted by security officers. The immigration officer could refer an application back to the security officer, even where the latter had provided clearance, if the immigration officer felt that there were too many vague responses during the last interview.

[112] Mr. St. Vincent was a credible witness. He appeared to have little difficulty in recollecting the events concerning his work as an immigration officer. His evidence concerning the timing of the security officer"s receipt of the immigrant"s application forms was at variance with that of Mr. Donald Cliffe. I attach little significance to this discrepancy.

[113] Andrew C.A. Kaarsberg was a second immigration officer to testify. During the Christmas period of 1948, he arrived in Karlsruhe, Germany. He served as an immigration officer on the three-person team screening immigration applications, until August 1950.

[114] It was also his recollection that the security officer would first see the applicant. Immigration officers never attended or participated with the security officer in this meeting. The applicant would then be met by the medical officer and finally would be interviewed by the immigration officer. He confirmed that if the security officer refused clearance, the immigration officer had no option but to refuse the visa application. If the clearance was afforded, the immigration officer could still exercise discretion in accordance with the applicant"s perceived ability to adapt in Canada.

[115] Mr. Kaarsberg stated that the team process in which he began participating in early January 1949 had been in place for some months prior to his arrival in Germany. He never visited the processing centre in Butzbach, Germany. He stated that there were some eight or nine teams in operation in Germany when he arrived.⁹⁴

[116] He confirmed that Mr. Schramec, who signed the respondent"s I.R.O. travel document, worked in Germany shortly before his own arrival and may have remained for more than one term.

[117] Mr. Kaarsberg confirmed that, even prior to the introduction of the application form OS-8, a similar type of document setting out the applicant"s personal data and his work history would be available.⁹⁵ Mr. Kaarsberg did not recognize the I.R.O. application forms but confirmed that the historical information dating back to 1938 was available to the immigration officer during the interview with the applicant.

[118] During cross-examination, Mr. Kaarsberg was asked if he could recognize the I.R.O. application forms. He answered in the negative but after examining the I.R.O. form and its request for residential and employment information dating back to 1939, he added:

THE WITNESS: I can say quite -- the information there, I do not think this was the format altogether, but the information that we wanted from IRO about the man is here.

There is some room for education, there is room for a short history of what he had done over the past 12 years. This is the sort of thing which we were dealing with. And we would make our own notes on a file. But I cannot voucher that this was the document, and I don"t think it was.

...

THE WITNESS: But I can tell you right off this was not the document. This was the application to IRO to be accepted by them. We never saw that, or I never saw them, I should say.

The form that IRO gave me, as I recall, if I may just explain, was a form giving his name, date and place of birth, if he was married his wife"s name, his education, to give us a picture of what the man could do, and also the skills, if he had any.

And then an employment history, what there was, during his period in Germany, but also before, having fled to Germany from whatever country he came.

So we would have a picture of a man or a family who -- what we were interested in was, could this man adapt and establish himself in Canada? This was my operation.⁹⁶ [Emphasis added.]

As I understand Mr. Kaarsberg"s testimony, as an immigration officer, he received information including the immigrant"s employment history over the past twelve years, but in a form other than the I.R.O. application document.

[119] Mr. Kaarsberg is 86. His responses were clear, forthright and he demonstrated a generally competent recollection of his role as an immigration officer in Germany between January 1949 and August 1950. His credibility was not in issue.

[120] On the basis of this evidence, I find that when the respondent was issued an immigration visa on December 20, 1948 in Butzbach, Germany, there was in place a screening process involving three-person teams of an immigration officer, a medical officer and a security officer. There were eight or nine of these teams in Germany at that time. According to the evidence of Messrs. St. Vincent and Kaarsberg, which I accept, displaced persons seeking visas to enter Canada should not have been met by the medical officer and the immigration officer without first having been interviewed by the security officer.

[121] Aldard W. Gunn is a third immigration officer who testified. He first served in Canada, generally interviewing incoming immigration visitors, until he was appointed to Belgium in 1953, some five years after the respondent"s arrival in Canada. Accordingly, his testimony concerning his experience in Europe is less pertinent to this case than that of Messrs. St. Vincent and Kaarsberg. However, he did confirm, in general, the threefold interview process concerning prospective immigrants. In cross-examination, he stated that the Canadian application form in place prior to December 1950, which he described as Imm-362, requested residential and employment information since 1938.⁹⁷

(iii) The testimony of R.C.M.P. officials

[122] The respondent"s application for an immigration visa was processed in Butzbach, Germany in December 1948. The applicant did not call as a witness any security officer with field experience from Karlsruhe, Germany in late 1948 or early 1949.

[123] Donald D. Cliffe was a security officer who served in Germany, principally in the Funk Kaserne processing centre of the International Refugee Organization near Munich, in 1953-54. He arrived in Europe in March 1951 as a security officer in Italy. He confirmed the same three-person interview of each visa applicant, as described by Messrs. St. Vincent and Kaarsberg. He also confirmed his interest in the displaced person"s ten-year residential and employment history, particularly during the period of the war.⁹⁸

[124] The applicant"s written submissions accurately describe Mr. Cliffe"s interpretation of subparagraph (k) of the definition of "collaborator" found in R.C.M.P. and Security Panel documents in late 1948 and early 1949: "Collaborators presently residing in previously occupied territory":

Mr. Cliffe was asked what was his working definition of collaboration in regard to the rejection criteria, Exhibit A-3-152, subparagraph (k) "Collaborators presently residing in previously occupied territory". He gave two scenarios. In the Western scenario, in the case of a Frenchman, a Belgian, a Dutch, a Dane, and a Norwegian:

"a collaborator would be a person of that nationality that, when the Germans invaded, they decided to assist the Germans. And I don"t mean by delivering groceries to them, but I"m talking about actively involved to the peril of their fellow countrymen."

Mr. Cliffe added: "I mean, they placed their fellow people in jeopardy of their own lives." In cross-examination Mr. Cliffe was asked regarding clause "k": "..if a collaborator was lucky enough to get across the Rhein, from France, your security exclusion would not apply to him as I read the clause." His response was as follows:

"No, the way that we interpreted this was that, if the Germans invaded a country, the Baltic countries included, and the Ukraine, and if a national of those countries decided to collaborate with the Germans, then he was known as a collaborator. Now, as I have said to you before, if they collaborated with the Germans and the Russians started to come forward, quite naturally the collaborator who sided with the Germans retreated into Germany to save himself from the Russians. And, consequently, there is no way he could stay in his own home country, like the Frenchman or the Belgian or the Dutch."

Mr. Cliffe"s interpretation of "collaborator" was not limited by the wording in subparagraph (k). In his words "... I would be looking for people who actively supported the Germans, after they invaded their country, and who assisted the Germans in rounding up some of their own fellow countrymen. ... That"s a collaborator."⁹⁹

[125] For Mr. Cliffe, an auxiliary policeman in Ukraine was a collaborator. If the visa applicant acknowledged being an auxiliary policeman, Mr. Cliffe would have asked supplementary questions concerning his duties, rank and the reason for his selection for that position. If there was any doubt in his mind at the end of the interview: "Canada got the benefit of the doubt." He also confirmed that none of his interviews was limited to the single question "where are you going to reside?"¹⁰⁰

[126] William Kelly, a former deputy commissioner of the Royal Canadian Mounted Police, served in London, England between June 1951 and August 1954. One of his functions was to oversee the work of the security officers screening visa applicants in Western Europe. His instructions to his field officers were clearly at variance with the literal meaning of "collaborators presently residing in previously occupied territory". In Mr. Kelly"s words:

A. I think what they were trying to tell us was that the man had to be interviewed in some territory away from -- or -- "...collaborators permanently (sic) residing in previously occupied territories."

He had to be residing in previously occupied territory. Well, if he wasn't residing in previously occupied territory, this item didn't apply.

Well, as far as my interpretation was, and the interpretation that I passed to the Visa Control Officers, which they didn"t need, because they had been operating on the same basis as I am going to describe. ... A collaborator was a collaborator regardless of where he was being interviewed. ... Or where he committed the collaboration. If he had committed collaboration with the German authorities, it was collaboration, period, and it was grounds for rejection.

Q. And, again, I think this is what you said, but, that, irrespective of whatever interpretation of it was, it was your experience that the latter manner was the way in which it was being applied, when you got on the scene?

A. Yes, yes.

...

A. And our people had been in operation for nearly two years, maybe over two years, when this letter [of November 20, 1948] was written.

Q. Yes?

A. So they would have had quite a little experience of collaboration.¹⁰¹ [Emphasis added.]

[127] Mr. Kelly was cross-examined on this same issue concerning his understanding of the definition of a collaborator in view of paragraph (k) of the R.C.M.P. memorandum of November 20, 1948, which he confirmed as "one of the documents that had been used in the process":¹⁰²

Q. ... we have looked at Section (k) repeatedly, and if one uses a very, very technical, narrow, literal reading of it, would you not agree that one could interpret that, if one was a classic ship lawyer, that once somebody who had collaborated and crossed over into Germany, they, under the strict reading of that clause, would be exempt from being excluded?

A. I agree.

Q. Because it's only people in previously occupied territories. Germany was never occupied, except by us, of course, but they were never occupied by German forces, it was their own forces.

So if one read that, if one were a '90s lawyer coming before you in the '50s, one could argue, well, my client doesn't fall into that category.

A. Well, I knew that there was a different interpretation in the reading and the interpretation of our action. But somebody had to make a decision. It had always been interpreted as a collaborator, regardless of where he collaborated, and it didn't make any difference where he was being interviewed.

And I agreed with that interpretation. That if he collaborated, regardless, he was a collaborator.

Q. Could I ask you, then, and this is -- I'm not -- obviously, my learned friend didn't qualify you as an expert, and I'm not trying to push you into the role of an expert, but you are a very, very experienced Security Officer over these years, and a very high ranking one.

Could you give us your opinion why it would have come out in that form of words, when it would have been very simple to say a collaborator is a person who helped the enemy.

A. No, I couldn't, except I think, if you read the Parsons letter, he's got the same wording in there as is in this document here.

Q. I see.

A. And I don't know why that is the case, because it doesn't seem to be reasonable that, if a man collaborated in one country, because he was able to be interviewed by Immigration in another, they'd forget about collaboration altogether.¹⁰³ [Emphasis added.]

[128] Mr. Kelly"s interpretation of "collaborator", is broader than the wording in subparagraph (k). He testified that the understanding of field officers, both prior and subsequent to late 1948 when the language of subparagraph (k) was circulated, was the same as his. Similarly, he confirmed that his interpretation of "collaborator" was the one being used in the field when he was posted to London in mid-1951.¹⁰⁴

[129] I am reluctant to draw firm conclusions from any single government document, particularly when introduced through someone other than its author. This is substantially the same kind of hearsay evidence as that of Deputy-Commissioner Kelly who testified concerning his knowledge of the security officers" interest in collaborators, even prior to his arrival in Europe in 1951. An assessment must be made on the totality of the evidence of persons speaking of their own experiences and the hearsay evidence from the documents and certain witnesses.

[130] With this in mind, and on the evidence before me, I find that in December 1948, Nazi collaborators would have been screened as undesirables or security risks by the visa control officers. I make this finding despite the wording of paragraph (k) ("collaborators presently residing in previously occupied territory") in the R.C.M.P. memorandum of November 20, 1948.

[131] In my view, too many other documents, prior and subsequent to December 1948, speak of the concern with respect to Nazi collaborators, without any qualifying words concerning where they were presently residing.¹⁰⁵ On the basis of these documents, the I.R.O. application forms requesting residential and employment information since 1938 and the evidence of Messrs. Kelly and Cliffe,¹⁰⁶ some of which is hearsay and must be closely scrutinized, I find that, in December 1948, Canada"s immigration screening was as much concerned with Nazi collaborators being processed through I.R.O. displaced person centres in Butzbach, Germany and elsewhere, as with Nazi collaborators "presently residing in a previously occupied territory".

THE RESPONDENT"S IMMIGRATION VISA, HIS ENTRY INTO CANADA AND HIS CANADIAN CITIZENSHIP

[132] The respondent resided in Bad Nauheim, Germany between 1945 and 1948.

[133] On November 3, 1948, a church group under the name of Caritas, wrote to the respondent from its offices in Stuttgart, Germany to advise him as follows:

[TRANSLATION] As we have been informed, you have received your immigration permit from Canada on the basis of a work contract with a Canadian company. Your serial number is PG 1344.

We would ask you to complete the enclosed questionnaire with a typewriter or by printing clearly and to return it to us immediately so that we can initiate the further steps necessary for your immigration.¹⁰⁷

[134] According to the respondent"s recollection, he did not think that he had taken any steps to initiate this letter and it was a surprise for him to receive it. He received at least two subsequent letters from Caritas.

[135] Prior to receiving the Caritas correspondence, the respondent had established contact with his father"s brother who resided near St. Catharines, Ontario. His uncle, together with his second wife, left Ukraine for Canada shortly before the war. At the same time as Caritas was writing to the respondent, he was receiving letters from his uncle concerning his attempts to arrange and pay for his entry into Canada. His uncle owned a small, five-acre farm near St. Catharines.

[136] In December 1948, the respondent left Bad Nauheim for Butzbach, Germany to obtain his visa for his trip to Canada. When asked if he had to bring documents or letters with him to Butzbach, the respondent answered: "I think they had already there all mine. ... I remember that first I sent somewhere my photograph only."¹⁰⁸

[137] The respondent identified the International Refugee Organization travel document that was issued to him in Butzbach. The travel document is dated December 9, 1948, below the signature of the I.R.O. resettlement officer apparently responsible for its issuance. He identified his photograph on the document as the one that he had previously forwarded. The document notes the respondent"s occupation as "farm help". He is described as "DP Status". It is useful to note more fully the respondent"s personal information on the travel document. The responses were typewritten on the form document:¹⁰⁹

FAMILY CHRISTIAN

NAME KISLUK NAMES Serhij

MAIDEN NAME (where applicable)

DATE OF BIRTH 22.Oct.1922 SEX M DP NO. DP Status

PLACE AND COUNTRY OF BIRTH Swinarin, Poland

NATIONALITY Pol.Ukrainian

OCCUPATION farm help

FATHER"S NAME

MOTHER"S MAIDEN NAME

Description of Holder

Height 173 cm Weight 65 kg

Hair dark

Eyes brown

Nose normal

Shape of Face round

Special Characteristics none

...........................................................

Elsie W. Poole

Resettlement Officer

(Signature and Position

of I.R.O. Certifying Officer)

Date: 9.Dec.1948

Place IRO Resettlement Center

Butzbach

[138] The respondent did not recall having met an individual by the name of E.L. Schramec, the Canadian immigration officer who signed the visa stamped on his I.R.O. travel document on December 20, 1948. The respondent remembers having met one official in an office in Butzbach, a person who spoke to him in German. He does not recollect having completed any form at the interview in Butzbach. The following is the respondent"s exchange with his counsel:

Q. Do you recall now what questions you were asked?

A. I only remember that they asked me whether I was in SS and who I am going to.

Q. Do you recall what answers you gave to that?

A. I said that I was not in SS and that I"m going to my uncle.¹¹⁰

He does not recollect having been in communication with the I.R.O. prior to this interview, other than the one occasion he obtained assistance from the U.N.R.R.A.

[139] During cross-examination, the respondent was confronted with his answers on discovery concerning the questions he was asked when interviewed in Butzbach:

Q. ... are you interviewed by anyone from Canada?

A. I was asked who am I going to.

Q. Do you recall the name of the person who interviewed you?

A. I do not know. I do not.

Q. Was it a man or woman?

A. Yes, it was a man. I said that I was going to an uncle and that was it.

Q. This person asked you no more questions?

A. No, didn"t ask anything else.

Q. So your position is that when you were interviewed by this person from Canadian authorities he asked you only one question and that is who are you going to?

A. I think that was so because my way was paid. For those who were going for contract maybe they were asked more questions but since my way was paid for that was the only question.

...

Q. That was your answer, you were going to your uncle and to the farm?

A. Yes.

Q. That was the extent of the questioning?

A. Yes.¹¹¹

[140] Nowhere, in his responses on discovery, did the respondent refer to a question during the interview other than the one asking him "who am I going to". During his direct examination, the respondent added that he was also asked a second question as to whether or not he was a member of the SS. When asked to explain the discrepancy between the evidence on discovery and at the hearing, his response was that "... there should be a mistake in the stenography or something because I did say that".¹¹² On the basis of the stenographic evidence introduced by the applicant, it is clear that on discovery the respondent stated that he had been asked only one question during the interview, and no reference was made to any question concerning the SS.

[141] The respondent"s I.R.O. travel document also bears the stamp of the Department of National Health and Welfare, dated December 17, 1948, with the note "passed" written in by an unidentified official. The respondent acknowledged that he underwent a medical examination and an X-ray, "probably" in Butzbach and maybe one day earlier than his meeting the official who asked him one or two questions. He guessed that he remained in Butzbach some two or three days before continuing his trip to Canada.¹¹³

[142] The respondent"s travel document with his personal information was apparently signed by the I.R.O. re-settlement officer on December 9, 1948, some days prior to his arrival in Butzbach. His visa was issued on December 20, 1948, after his short stay in the I.R.O. processing centre. It is probable, as the respondent himself suggested ("I think they had already there mine", supra paragraph 136), that he would have completed some form of I.R.O. application prior to December 9, 1948. This is consistent with the process described by the immigration officials.

[143] According to the Canadian Government Return,¹¹⁴ the respondent sailed from Cuxhaven, Germany in 1949 aboard the S.S. Scythia and arrived at Halifax on January 23, 1949. The Canada Immigration stamp on the respondent"s I.R.O. travel documents indicates that he was landed on January 24, 1949.

[144] The Canada Government Return form indicates, in handwritten notes, that the respondent"s trade or occupation in his own country was changed from "driver" to "student". The respondent claims that "student" was the correct entry. He insists that no one raised this issue with him during the voyage and he offers no other explanation for the change.

[145] The Return also indicates that his intended trade or occupation in Canada was to be a farm worker on his uncle"s farm in St. Catharines, Ontario. This appears to be at variance with the information on the Caritas correspondence, which indicated that the respondent was to be hired by a Canadian company.¹¹⁵ This different information was not explained in the testimony.

[146] According to Mr. Kisluk"s testimony, upon his arrival in St. Catharines, he helped his uncle on the latter"s farm and, about a month later, he was hired by Alliance Paper Mill Ltd., where his uncle"s son also worked. He was laid off after some eight months. Sometime later, he was hired by General Motors, after falsely representing that he had previous experience with an Opel factory in Germany. He was employed for twelve years at General Motors before starting up a number of his own commercial enterprises. In explaining his false representation, the respondent stated: "... sometimes if you want to defend your life I do have to say non-truth. The entire Soviet Union was based on lie."¹¹⁶

[147] In 1953, as part of his application for Canadian citizenship, the respondent was interviewed by a member of the Royal Canadian Mounted Police in Niagara Falls, Ontario. The respondent stated that he may have been asked if he had been a member of the S.S.¹¹⁷ The officer"s comments on the confidential report he filed with his superiors stated:

Applicant entered Canada at Halifax, N.S., January 24th, 1949 on the S.S. Scythia. From Port of Entry applicant went directly to St. Catharines, Ontario where he has resided to date, working for eight months for Alliance Paper Mills Ltd., Merriton, Ontario as labourer, and to date for the McKinnon Industries Ltd., St. Catharines, Ontario.

Subject entered Germany as forced labour during 1944 he produced at this point a Certificate of Identity for the Purpose of Immigration to Canada, # 19-682, and a landing card, which were examined and appeared to be in order.¹¹⁸

In response to two form questions on the questionnaire, the respondent replied that he had never been suspected of participation in subversive activities and that public opinion would not be adverse to his receiving citizenship. This interview took place on October 14, 1953.

[148] On March 22, 1954, the respondent signed a sworn Petition for Citizenship which included the following typewritten statement attested to by the respondent: "I am of good character." ¹¹⁹

LEGAL AUTHORITY TO PROHIBIT THE ENTRY OF COLLABORATORS

[149] The respondent argues that in December 1948 there was no legal authority to prohibit the entry of potential immigrants, including collaborators, to Canada, either because they were undesirables or represented security risks, when they had otherwise complied with the Immigration Act¹²⁰ and its regulations. Implicit in the respondent"s position is the assumption that the Immigration Act , particularly sections 3 and 38, had displaced the Crown prerogative relating to the exclusion of aliens on the grounds of national security.¹²¹ As I understand this argument, even if the respondent had disclosed his wartime activities as a railway guard and as a member of the auxiliary police force under the Schutzmannschaften, no legal authority existed to prohibit his entry into Canada if he otherwise met the legislative requirements.¹²²

[150] The applicant"s first response is that it is beyond the scope of this Court"s mandate, in a reference under section 18 of the Citizenship Act , to consider this legal authority issue. I have chosen not to make any determination concerning the merits of this submission. In my view, the importance of the issue raised by the respondent in the context of this case warrants consideration.

[151] The applicant"s substantive response to the legal authority issue is twofold. First, the regulations passed under the Immigration Act provided immigration officers with legal authority to prohibit a person"s landing in Canada. In the alternative, such authority could be founded upon the doctrine of Crown prerogative. It is appropriate, in my view, to consider first the issue concerning Crown prerogative.

(a) The doctrine of Crown prerogative and the requisite legal authority

[152] The Crown prerogative to control the admission of aliens to the state was recognized at common law as early as 1820:

Alien friends may lawfully come into the country without any licence or protection from the Crown, though it seems that the Crown, even at common law, and by the law of nations (and independently of the powers vested in it by the Alien Act, 55 G.S. c. 54 which extends even to foreign merchants) possesses a right to order them out of the country, or prevent them from coming into it, whenever his Majesty thinks proper.¹²³

[153] As recently as in Chiarelli v. Canada (Minister of Employment and Immigration),¹²⁴ when considering the rights, under section 7 of the Canadian Charter of Rights and Freedoms, of a permanent resident subject to deportation, Sopinka J. stated: "The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country."¹²⁵

[154] A Crown prerogative is properly defined as "[t]he residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown."¹²⁶ A prerogative may be displaced by statutory enactment.¹²⁷ However, when the effect of related legislation is only incidental, a Crown prerogative may subsist.¹²⁸

[155] Section 17 of the Interpretation Act¹²⁹ provides that no enactment is binding on the Crown or affects the Crown"s prerogatives, "except as mentioned or referred to in the enactment". The words "mentioned or referred to" have been given a broad interpretation and encompass:

... (1) expressly binding words ("Her Majesty is bound"); (2) a clear intention to bind which ... "is manifest from the very terms of the statute", in other words, an intention revealed when provisions are read in the context of other textual provisions ... and, (3) an intention to bind where the purpose of the statute would be "wholly frustrated" if the government were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced. These three points should provide a guideline for when a statute has clearly conveyed an intention to bind the Crown.¹³⁰

[156] In this case, therefore, the issue is whether the Immigration Act , as it existed in 1948, provided a comprehensive legislative scheme controlling the admittance and removal of aliens, thereby displacing the Crown prerogative. In this regard, sections 3 and 38 of the Immigration Act are relevant.

[157] In 1948, section 3 provided that:¹³¹

No immigrant, passenger, or other person, unless he is a Canadian citizen, or has Canadian domicile, shall be permitted to enter or land in Canada ... who belongs to any of the following ... prohibited classes ..."

Nul immigrant, passager, voyageur, ni autre individu, à moins qu"il ne soit citoyen du Canada ou n"ait un domicile au Canada, n"est admis à entrer ou à débarquer au Canada ... s"il appartient à l"une des ... "catégories interdites", ...

There followed a lengthy list of prohibited classes.

[158] It is also useful to set out the relevant portions of section 38, which enabled the Governor-in-Council to pass regulations:¹³²

38. The Governor in Council may, by proclamation or order ...

(c) prohibit or limit in number for a stated period or permanently the landing in Canada, or the landing at any specified port or ports of entry in Canada, of immigrants belonging to any nationality or race or of immigrants of any specified class or occupation, by reason of any economic, industrial or other condition temporarily existing in Canada or because such immigrants are deemed unsuitable having regard to the climatic, industrial, social, educational, labour or other conditions or requirements of Canada or because such immigrants are deemed undesirable owing to their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry. [Emphasis added.]

38. Le gouverneur en son conseil peut, par proclamation ...

(c) Interdire, pendant une période de temps déterminée ou d"une manière permanente, le débarquement au Canada ou le débarquement à tous les ports d"entrée désignés, au Canada, ou limiter le nombre d"immigrants appartenant à quelque nationalité ou race, ou d"immigrants d"une catégorie ou occupation particulière, à cause d"une situation économique, industrielle ou autre régnant temporairement au Canada, ou parce que ces immigrants sont jugés impropres, eu égard aux conditions ou exigences climatériques, industrielles, sociales, éducationnelles, ouvrières ou autres du Canada , ou parce que ces immigrants sont considérés comme non désirables par suite de leurs coutumes, habitudes, modes de vie et méthodes particulières de posséder des biens, et vu leur probable inaptitude à s"assimiler facilement ou à assumer les devoirs et les responsabilités du citoyen canadien dans un temps raisonnable après leur arrivée au pays.

[159] Neither of these provisions is a clear statement expressly binding the Crown.¹³³ Accordingly, the displacement of the Crown prerogative to exclude prospective immigrants on security grounds must arise by necessary implication from the wording of the legislation. In my view, the total displacement of this Crown prerogative, even by implication, is uncertain at best.

[160] First, it is useful to consider the legislative history of the Act in the context of Canada"s contemporary concern with issues of national security. The Immigration Act of 1910 was enacted before Canada became a fully sovereign state in charge of its matters of foreign affairs.¹³⁴ From 1920 until World War II, the Royal Canadian Mounted Police, for which the Minister of Justice was responsible, provided Canada with meagre security and intelligence services.¹³⁵ During these years, security operations focussed on allegedly subversive elements within Canadian society.¹³⁶ The security and intelligence branch of the Royal Canadian Mounted Police only expanded significantly after the beginning of World War II.¹³⁷

[161] When sections 3 and 38 of the Immigration Act were first enacted in 1910 and amended in 1919,¹³⁸ Canada"s national security resources were minimal. It is unlikely, in this historical context, that Parliament turned its mind to the type of security concerns that arose in the late 1940's, when it identified the prohibited classes of immigrants and, more particularly, "the conditions or requirements" for suitable and desirable immigrants.

[162] Second, the words "other conditions or requirements of Canada", found in subsection 38(c ), are part of the larger phrase "... deemed unsuitable having regard to the climatic, industrial, social, educational, [and] labour" conditions of Canada. It is difficult to separate "other conditions or requirements of Canada" from this list of socio-economic factors, which is primarily concerned with the suitability of prospective immigrants and does not appear to be related to issues concerning national security.

[163] Finally, in 1948, the legislation did not create a right to enter Canada for persons in Europe. Prospective immigrants situated overseas were not entitled to enter or land in Canada, even when their entry was not prohibited by section 3 and where they had otherwise complied with the Act. Thus, even if an overseas immigrant was not a member of a prohibited class, no right of entry existed.¹³⁹ The immigrant"s entitlement to be granted landing, which even today is qualified, was first introduced in 1976.¹⁴⁰

[164] The historical context in which the Immigration Act was enacted, the uncertain wording of subsection 38(c) and the absence of an entitlement to be landed in Canada for prospective immigrants put into question, in my respectful opinion, whether the legislation fully displaced the Crown prerogative in relation to the exclusion of aliens on grounds of national security. However, I need not decide whether the legal authority to prohibit entry on security grounds rested solely on the doctrine of Crown prerogative in view of my conclusions concerning the effect of the orders-in-council in force in 1948. I will now turn to the consideration of these orders.

(b) The orders-in-council and the requisite legal authority

[165] In March 1931, to counter the unemployment created by the depression, the Governor-in-Council prohibited the landing of all immigrants of any class or occupation in Canada, subject to four exceptions. The four permitted categories of immigrants included British subjects, citizens of the United States, the wife or unmarried child of a person legally admitted to and resident in Canada, and agriculturalists having sufficient means to farm in Canada. The operative paragraphs of the order-in-council stated:

From and after the 18th March, 1931, and until otherwise ordered, the landing in Canada of immigrants of all classes and occupations, is hereby prohibited, except as hereinafter provided: -

The Immigration Officer-in-Charge may permit to land in Canada any immigrant who otherwise complies with the provisions of the Immigration Act, if it is shown to his satisfaction that such immigrant is: - ...¹⁴¹ [Emphasis added.]

[166] The use of permissive language ("may permit") in the order-in-council granted the immigration officer the discretion to admit persons who came within the permitted categories of immigrants.¹⁴² In my view, the blanket prohibition stipulated in the opening paragraph of the order-in-council, together with its use of the permissive "may", also provided the immigration officer with the discretion to prohibit the entry of immigrants. In other words, membership in an excepted class, as set out in this order-in-council, did not create a right to land in Canada. Neither section 3 of the Act nor this order-in-council created such a right.

[167] For ease of reference, this order-in-council shall be referred to as P.C. 695.

[168] In November 1947, P.C. 695 was revoked and replaced by P.C. 4849.¹⁴³ The operative paragraphs remained the same. The principal difference was the addition of classes of eligible immigrants, namely: additional categories of workers, a person entering Canada to marry a legal resident thereof and a person, honourably discharged from the Canadian Armed Forces, who had previously entered Canada as a non-immigrant.

[169] In June 1949, P.C. 4849 was in turn revoked and replaced by P.C. 2743.¹⁴⁴ Again, the language of P.C. 4849 remained substantially unchanged. The new order-in-council simply added an exception for citizens of France to the blanket prohibition.

[170] In June 1950, P.C. 2743 was revoked and replaced by P.C. 2856.¹⁴⁵ Once more, the blanket prohibition against the landing of immigrants of any class and the discretion given to the immigration officer were maintained. The only substantial change in the new order-in-council was the deletion of all classes of eligible immigrants, except for British subjects, citizens of the United States, citizens of France and persons honourably discharged from the Canadian Armed Forces who had previously entered Canada as non-immigrants. The deleted classes were replaced by the following paraphrasing of paragraph 38(c) of the Immigration Act:¹⁴⁶

4. A person, who satisfies the Minister, whose decision shall be final, that:-

(a) he is a suitable immigrant having regard to the climatic, social, educational, industrial, labour, or other conditions or requirements of Canada; and

(b) he is not undesirable owing to his peculiar customs, habits, modes of life, methods of holding property, or because of his probable inability to become readily adapted and integrated into the life of a Canadian community and to assume the duties of Canadian citizenship within a reasonable time after his entry. [Emphasis added.]

4. Une personne qui fournit, à la satisfaction du Ministre, dont la décision est définitive, les renseignements suivants:

a) Qu"elle est un immigrant convenable, eu égard aux conditions climatériques, sociales, éducatives, industrielles, ouvrières ou autres, ainsi qu"aux besoins du Canada; et

b) Qu"elle n"est pas indésirable en raison de ses coutumes ou de ses habitudes particulières, ou de son mode d"existence ou de son régime de propriété particulier, ou à cause de son incapacité probable de s"adapter promptement à la vie d"une collectivité canadienne, de s"y intégrer et d"assumer les devoirs de la citoyenneté canadienne dans un délai raisonnable après son entrée.

[171] Counsel for the respondent argues that, prior to July 1950 when P.C. 2856 came into force, there existed no legal authority to prohibit the entry of prospective immigrants into Canada on the grounds of national security. As I understand this argument, the words "other conditions or requirements", included in the order-in-council and drawn from subsection 38(c ) of the Act, form the basis for the earliest legal authority to bar the entry of collaborators, either as undesirable persons or as security risks.¹⁴⁷

[172] I respectfully disagree. There is no direct evidence before me that P.C. 2856 was passed to address the legal authority concerns discussed by officials in 1949.¹⁴⁸ Similarly, there is no evidence of any linkage between Cabinet Directive 14 of October 1949¹⁴⁹ and P.C. 2856. More importantly, it is doubtful, in my view, that the words "other conditions or requirements" in paragraph 4(a ) of P.C. 2856 could properly encompass national security if, as noted earlier, Parliament was not likely to have turned its mind to this issue when subsection 38(c), pursuant to which the order-in-council was passed, was first enacted in 1910 and amended in 1919. In my opinion, the legal authority to prohibit the entry of undesirable persons or security risks is created in the discretion given to immigration officers to permit landing in Canada, and not by the words "other conditions or requirements" in P.C. 2856. The same legal authority in P.C. 4849 of November 1947 continued in its successor order-in-council, P.C. 2856 of June 1950.

[173] These four orders-in-council ( P.C. 695, P.C. 4849, P.C. 2743 and P.C. 2856) had the same object and effect. They established a blanket prohibition against the landing of immigrants of all classes and occupations, and afforded the immigration officer the discretion to allow the landing of specified classes, which were the exceptions to the general prohibition. In view of the general prohibition, and the discretion granted to the immigration officer, I find, on the basis of these orders-in-council, including P.C. 4849 which was in force in December 1948, that prospective immigrants who were found to be German collaborators or otherwise posed a risk to national security, could be prohibited from landing in Canada.¹⁵⁰

[174] My view in this regard is supported by a second series of orders-in-council which introduced a requirement that the passports of certain aliens carry the visa of a Canadian immigration officer. If anything, these regulations are more persuasive of the existence of a legal authority to prohibit the entry of prospective immigrants on grounds of national security.

[175] The concept of a visa appears to have been introduced into the Immigration Act in 1921. Section 37 was a statutory provision authorizing the Governor-in-Council to pass regulations concerning monetary and other requirements from specified classes of immigrants. In 1921, section 37 was amended by adding the following phrase:¹⁵¹

... and may provide also that passports shall not be recognized unless issued within a time limited by regulations or unless viséd in the manner required. [Emphasis added.]

... et peuvent aussi porter que les passeports ne seront pas admis s"ils n"ont pas été délivrés dans le délai déterminé par les règlements ou visés de la manière prescrite.

[176] In November 1938, order-in-council P.C. 3016 was adopted with the provision that "the passport of every alien sailing directly or indirectly from Europe, shall carry the visé of a Canadian Immigration officer stationed in Europe".¹⁵² [Emphasis added.]

[177] In November 1947, again pursuant to section 37 of the Immigration Act, P.C. 3016 was revoked and replaced by P.C. 4851.¹⁵³ The sole substantive change in P.C. 4851 was the addition of paragraph 4, presumably to reflect those displaced persons in possession of travel documents issued by the International Refugee Organization. The new order-in-council read in part:

From and after the date hereof every person seeking to enter or land in Canada, shall be in possession of an unexpired passport issued by the country of which such person is a subject or citizen:

Provided:

...

2. That the passport of every alien sailing directly or indirectly from Europe shall carry the visa of a Canadian Immigration Officer stationed in Europe;

...

4. That a travel document establishing the identity of the holder may be accepted in lieu of a passport in the case of an immigrant who has been displaced from his country of origin as the result of the war and who is not in possession of a valid passport. [Emphasis added.]

In the context of this case, P.C. 4851 recognized the respondent"s I.R.O. travel document, in lieu of a passport, subject to the requirement that a visa be issued by a Canadian immigration officer in Europe.

[178] Neither the Act nor the orders-in-council in force in 1948 provided specific criteria for the issuance of visas. Similarly, no enactment provided the prospective immigrant with a right to the visa. In 1948, the issuance of visas was discretionary. Immigration officers were provided with memoranda of instructions and forms concerning the information to be obtained from prospective immigrants, prior to the issuance of visas. As early as 1947, the Cabinet minister responsible for immigration obtained the assistance of experienced investigators from the Royal Canadian Mounted Police to assist immigration officers in the security screening of visa applicants in Europe.¹⁵⁴

[179] It is common ground that a discretionary power may not be exercised in an arbitrary manner or in bad faith.¹⁵⁵ In my view, information provided by a security officer that a potential immigrant, who otherwise complied with the requirements of the Immigration Act and regulations, posed a security risk to Canada in 1948 was a proper ground on which the immigration officer could exercise negatively the discretion in P.C. 4849 and P.C. 4851.¹⁵⁶ This merely reflected the security concerns expressed in the various Cabinet and Security Panel documents.

[180] On the basis of orders-in-council P.C 4849 and P.C. 4851, I am satisfied that in December 1948 immigration officers had the legal authority to prohibit, in effect, the entry and landing into Canada of immigrants on the grounds that they were either undesirables or security risks. This outcome is fully consistent with the prohibition against the entry of "persons who do not fulfill, meet or comply with the conditions and requirements of any regulations ..." found in subsection 3(i ) of the Act.

[181] In view of the conclusion that I have reached, it is not necessary that I consider the applicant"s submissions in relation to the order-in-council of June 6, 1947, P.C. 2180, concerning the selection and transportation to Canada of displaced persons.

THE SUMMARY OF THE FINDINGS OF FACT

[182] After the Soviet occupation of Volhyn, the respondent"s family left Svynaryn in late 1939 for Cholm, Poland. His parents were soon directed to Dresden, Germany. The respondent remained in or near Cholm and served as a railway guard, armed and in a German military uniform, through 1940 and the first months of 1941. The respondent was able to return to Svynaryn for a vacation leave in the spring or early summer of 1941. In August 1941, shortly after his leave, he was dismissed as a railway guard. The respondent then moved back to Svynaryn, where he was recruited to serve as a police officer in Makovichi from late 1941 through 1943.

[183] I understand that the respondent"s personal life was disrupted by the war. His family left their relative comfort in Svynaryn to avoid their apparent harassment by Communist sympathisers. This circumstance may have been beyond the respondent"s control. There is no serious evidence, however, to establish that he was coerced into service either as a railway guard or as a police officer. He acknowledged that he worked as a railway guard, as part of the German police, because he had to work somewhere and had no other option. He was paid and fed. By his own admission, he could have worked on his family farm, upon his return to Svynaryn in 1941. Instead, he was recruited to work as a police officer and again was paid, housed and fed. Even if he may not have sought out this employment, his suggestion that "if you say no, you may end up with a broken arm or leg"¹⁵⁷ is not sufficient evidence of forced or coerced service. He was not recruited from a prisoner of war camp or from a forced labour camp. I find that the respondent voluntarily assisted the German forces by accepting to serve as a railway guard and as a police officer.

[184] I have found that the Ukrainian policemen from Ozeryany guarded the ghetto and marched the Jews to nearby Sushibaba.¹⁵⁸ I have also found that the respondent knew of these events while serving as an auxiliary policeman, a few kilometres away in Makovichi.¹⁵⁹ Further, I have found that the respondent was involved in escorting the Jewish domestic worker for the Makovichi police to her execution. ¹⁶⁰ On the basis of these findings and the testimony of Professor Browning, I do not believe the respondent"s repeated assertions that his role as a police officer in Makovichi was limited to the investigation of petty thefts and domestic abuse. The Ukrainian police in Ozeryany assisted the Germans in substantially more than this. There is no reason to believe that the functions of the auxiliary police in Makovichi, only a few kilometres away, were limited to the kind suggested by the respondent. He himself did not hesitate to use force in circumstances having nothing to do with minor police functions. Even as a railway guard on vacation leave, he used force on at least two occasions.¹⁶¹ I find that police officers in Makovichi, during the time of the respondent"s service, were members of the auxiliary police force organized by the Germans and known as the Schutzmannschaften , as described by Professor Browning.¹⁶²

[185] Through his activities as a railway guard and an auxiliary police officer, I conclude that the respondent collaborated with the Germans between 1940-43. He was a Nazi collaborator, within the meaning of the government documents and as understood by the R.C.M.P. security officers in December 1948.

[186] According to Dr. Browning"s evidence, the Schutzmannschaften was an auxiliary police force in rural villages under the umbrella of the Schutz Staflel or S.S. police structure.¹⁶³

[187] According to the respondent"s evidence, he was asked, when interviewed in Butzbach, Germany, whether he was a member of the S.S. He replied that he was not. There is no evidence establishing whether the respondent knew in 1948 that the Schutzmannschaften or his auxiliary police unit was part of the S.S. However, he did know that the Makovichi police received orders from the German police structure and acted under its direction, authority and power.

[188] On the basis of the contents of the respondent"s International Refugee Organization travel document, I find that he disclosed certain personal information to the I.R.O. prior to December 9, 1948, the date under the signature of the I.R.O. certifying officer. This finding is consistent with the testimony of the Canadian immigration officials that displaced persons seeking entry into Canada were processed by the I.R.O., prior to their screening by Canadian officials.¹⁶⁴

[189] Again, on the basis of the respondent"s I.R.O. travel document and on his own acknowledgment, I find that, on or about December 17, 1948, the respondent was met by a medical officer, acting for Canadian immigration services, and passed the medical examination.

[190] Similarly, on the basis of the visa stamp on his I.R.O. travel document and on the evidence of the immigration officials, I find that the respondent was interviewed by immigration officer E.L. Schramec on or about December 20, 1948.

[191] Earlier in these reasons, I accepted the testimony of the immigration officials that in December 1948 there existed some eight or nine three-person teams to screen displaced persons seeking visas to enter Canada.¹⁶⁵ I also accepted their evidence that visa applicants should not have been met by the medical officer and the immigration officer without first having been interviewed by the security officer. On the basis of this evidence and my findings that the respondent was met in Butzbach, Germany by a medical officer and an immigration officer, I find, on the balance of probabilities after scrutinizing "the evidence with greater care because of the serious allegations",¹⁶⁶ that the respondent was also met by a security officer. He was screened by one of the three-person teams. This finding is supported by the respondent"s statement at trial, but not on discovery, that he was asked whether he was a member of the S.S. I find, on the basis of the evidence of the immigration officials, that this question would not have been asked by the medical officer or immigration officer. This question was within the purview of the security officer who met the respondent.

[192] The respondent changed his testimony on important facts. He provided different years concerning the date of the killing of the domestic worker. When confronted with his change of testimony as to whether he was asked one or two questions when interviewed in Butzbach, he insisted the discovery transcript was incomplete. He changed substantially the time period he worked as an elevator operator for the American military, when faced with the date of his licence to operate a motor vehicle. When challenged on the circumstances of his "capture" by the Germans, he asked counsel when the event occurred and then provided a different explanation for the Germans" presence at that location in the context of the Soviet army advance.

[193] The respondent took the position that the only questions he was ever asked concerning his wartime activities were in Butzbach, Germany ("where are you going?" and "were you in the SS?") and one "unimportant" question by I.R.O. officials. Neither the Germans, when he was captured and when he worked in their military hospital, nor the senior members of the American military, for whom he was an elevator operator and driver, ever expressed interest in his activities between 1940-43.¹⁶⁷ None of this is credible.

[194] Nor was he credible about his functions as a police officer in Makovichi and his lack of involvement in the beating of Moshko Goldshmidt and in the execution of the domestic worker.

[195] Simply put, I do not believe the respondent"s testimony on any contentious issue.

[196] I do not believe the respondent"s testimony on discovery that he was asked only one question when interviewed in Butzbach: "who am I going to?" Nor do I believe his testimony at trial that he was asked only two questions: "... whether I was in S.S. and who I am going to."¹⁶⁸ I accept the testimony of immigration officer Roger St. Vincent and security officer Donald Cliffe that their interviews would never be limited to a single question.¹⁶⁹ I infer from the evidence of immigration officer Andrew Kaarsberg that his interviews were also more extensive than simply asking one or two questions. I also accept the testimony of these same officials that in December 1948 prospective immigrants, screened by one of the three-person inspection teams, were questioned on their employment history since 1939.¹⁷⁰

[197] I find on the balance of probabilities, after carefully scrutinizing the evidence before me, that the immigration officer E.L. Schramec and the security officer who interviewed the respondent questioned him concerning his employment history during World War II. I conclude that the respondent knowingly concealed his role in assisting the Germans as a railway guard and an auxiliary police officer in Makovichi. I also find that his response, during his 1953 R.C.M.P. interview for citizenship, that he "entered Germany as forced labour" concealed material facts. On the basis of my findings concerning the respondent"s involvement in the incidents during 1941-43, I conclude that his sworn statement in his 1954 petition for citizenship, that he was a person of good character, was false.

[198] For these reasons, I find that the respondent Serge Kisluk was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances.

Ottawa, Ontario J.F.C.C.

June 7, 1999

__________________

¹ Citizenship Act, R.S.C. 1985, c. C-29, sections 10 and 18.

² (1998), 144 F.T.R. 1 at paragraph 113. See also Canada (Minister of Citizenship and Immigration) v. Katriuk, [1999] F.C.J. No. 217 (QL) (T.D.) at paragraph 38.

³ Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] F.C.J. No. 1829 (QL) (T.D.).

⁴ Transcript, p. 436.

⁵ Transcript, p. 311.

⁶ Exhibit A-2, pp. 21-22. One of the German documents, relied upon by Dr. Browning, isdated July 31, 1941 and created by The Reichsführer SS and Chief of the German Police which states in part (exh. A-3, document 8): "Officers and leaders [Führer] of the police and SS and qualified Wachtmeister [approx. rank of Corporal] of the Ordnungspoliziei will train and, for the time being, also lead the Schutzmannschaften."

⁷ Exhibit A-2, pp. 26 and 28.

⁸ Exhibit A-2, pp. 44 and 45. See also exhibit A-14.

⁹ Transcript, p. 365. See Exhibit A-3, document 80 for the German documents concerning the treatment of Jews and Gypsies.

¹⁰ Exhibit A-2, pp. 36-43.

¹¹ Exhibit A-3, document 82.

¹² Exhibit A-3, documents 83 and 84. See also Exhibit A-2, at pp. 40-41 concerning the killings in Kovel.

¹³ Exhibit A-2, pp. 47-48.

¹⁴ Transcript, p. 3966.

¹⁵ Transcript, p. 4099.

¹⁶ Transcript, p. 4108.

¹⁷ Transcript, pp. 3978-81 and pp. 4112-13.

¹⁸ Transcript, pp. 3981-83, p. 4114-17. See also pp. 3626-31.

¹⁹ In direct examination, the respondent stated that he was on leave or vacation from hisemployment as a railway guard "in the spring, maybe in May or June" of 1941 (Transcript, p. 3985). On discovery, he said he thought that the vacation was in July or August of 1941. During cross-examination, he acknowledged that he had no precise recollection of the dates of his vacation or leave period from his railway guard job (Transcript, pp. 4126-27).

²⁰ Transcript, pp. 3983-84 and 3989-90.

²¹ Transcript, p. 3994: "I didn"t even know their names or anything."

²² Transcript, p. 3995.

²³ Transcript, pp. 3998-99, p. 4008 and p. 4152.

²⁴ Transcript, p. 3998.

²⁵ Transcript, pp. 3635-36, 4000, 4153 and 4158. The respondent"s references to armbandsand Soviet clothing is consistent with Professor Browning"s description of the Schutzmannschaften dress, supra paragraph 9.

²⁶ Transcript, pp. 3992, 4147 and 4172.

²⁷ Paragraph 41 of the respondent"s summary of facts and evidence, infra paragraph 71.

²⁸ Transcript, p. 3633.

²⁹ Transcript, pp. 4174-79.

³⁰ Supra, paragraph 14.

³¹ Transcript, pp. 4158-59 and 4164-65.

³² Transcript, pp. 4004-5 and 4183-84.

³³ Transcript, pp. 4001 and 4002. See also pp. 4154, 4160-69, 4180-81 and 4188-89.

³⁴ Transcript, pp. 293-97 and 310, pp. 4002-3, pp. 4156-57, Exhibit A-7 and Exhibit A-3, document 72.

³⁵ Transcript, pp. 3985-86. There is some uncertainty, in the respondent"s evidence, as to whether this incident occurred in the spring or summer of 1941: supra note 19.

³⁶ Transcript, pp. 3988-89, 4135, 4205 and 4214.

³⁷ Transcript, pp. 1176-78.

³⁸ Transcript, pp. 1178 and 1224.

³⁹ Transcript, pp. 1178, 1180 and 1249.

⁴⁰ Transcript, pp. 4169-70.

⁴¹ Supra, paragraph 31.

⁴² Transcript at pp. 1415-16.

⁴³ Transcript at pp. 1416, 1421 and 4094-95.

⁴⁴ Transcript, pp. 1418 and 1438-39.

⁴⁵ Transcript, p. 4214-15.

⁴⁶ Transcript, p. 4214.

⁴⁷ Transcript, p. 1419. On January 12, 1998, almost six weeks prior to the Commissionevidence, McKeown J. ordered the applicant to pay reasonable travel and accommodation expenses to Ukraine for the respondent and his counsel.

⁴⁸ Transcript, p. 1449.

⁴⁹ Transcript, pp. 1300 and 1308.

⁵⁰ Transcript, pp. 1302-5.

⁵¹ Transcript, pp. 1308-8.

⁵² Transcript, pp. 1307-9.

⁵³ Transcript, pp. 4184 and 4210.

⁵⁴ Transcript, p. 4208.

⁵⁵ Transcript, p. 4207.

⁵⁶ Transcript, p. 4170.

⁵⁷ Transcript, pp. 4000 and 4184. The respondent"s testimony is consistent with his summary of facts and evidence where the domestic servant is described as "a very good cook".

⁵⁸ Transcript, pp. 1306 and 4157. Mr. Shklyaruk says at p. 1306: "They would come to thatstation and they would call them to the Raion station, because they would issue them order, they would give them command."

⁵⁹ Transcript, pp. 4211-12. See also p. 4210.

⁶⁰ Transcript, p. 1343.

⁶¹ Transcript, pp. 4009-12 and 4215.

⁶² Transcript, p. 4219.

⁶³ Transcript, pp. 4012 and 4218.

⁶⁴ Transcript, pp. 4017-18 and 4222-23.

⁶⁵ Transcript, pp. 4232-33.

⁶⁶ Transcript, pp. 4020-21 and 4233-35.

⁶⁷ Transcript, pp. 4022-23 and 4027.

⁶⁸ Transcript, p. 4035.

⁶⁹ Exhibit R-62.

⁷⁰ Transcript, p. 4242.

⁷¹ Transcript, pp. 4243-44.

⁷² Transcript, p. 4051.

⁷³ Transcript, p. 4047.

⁷⁴ Exhibit A-3, document 241.

⁷⁵ Exhibit A-3, document 247.

⁷⁶ Exhibit A-3, document 256.

⁷⁷ Exhibit A-3, document 138 at p. 4 of Annex "A".

⁷⁸ Ibid. at p. 6.

⁷⁹ Exhibit A-3, document 152.

⁸⁰ Exhibit A-3, document 144.

⁸¹ Exhibit A-3, document 148.

⁸² Exhibit A-3, document 258.

⁸³ Exhibit A-3, document 261.

⁸⁴ Exhibit A-3, document 159.

⁸⁵ Exhibit A-16, paragraphs 22-24. Transcript, pp. 854-56.

⁸⁶ Exhibit A-3, document 161, a letter from the deputy-minister of the department responsible for immigration to the secretary of the Security Panel.

⁸⁷ Exhibit A-3, document 163 at p. 3 and document 164.

⁸⁸ Exhibits A-30, A-31 and A-32, which are also produced as Exhibit A-3, documents 166, 167 and 175.

⁸⁹ Exhibit A-3, document 166 and documents 168 through 176. These documents werecreated by the P.C.I.R.O. or the I.R.O. Documents 166, 167 and 175 were introduced during the testimony of Mr. Donald Cliffe. The applicant also sought to introduce, as admissible hearsay evidence, the transcript of the testimony of Michael Thomas, an I.R.O. official who appeared in another proceeding, together with a number of documents he referred to. The respondent objected. Mr. Thomas suffered a stroke shortly prior to the scheduled date for his commission evidence in this proceeding. Upon the submissions of counsel concerning the criteria of necessity and reliability, I have decided to maintain the respondent"s objection concerning Mr. Thomas" testimony but to admit as evidence in this proceeding document 166 and documents 168 through 176 to the extent that they relate directly to exhibits A-30, A-31 and A-32 in (i) placing a time frame for the introduction of the I.R.O. application for assistance forms and (ii) in identifying persons eligible for I.R.O. assistance (see in particular exhibit A-3, document 168). Documents 168 and 169 are both dated June 25, 1947 and appear to be related directly to document 166, introduced through Mr. Cliffe. Document 175 was also introduced through Mr. Cliffe. The two remaining documents 174 and 176 have also been admitted, to accommodate the respondent"s preference that I refer to all the documents, if any one was to be admitted. Documents 174 and 176 were created in late 1948. The relevant portions of document 176, at page 33, are more fully set out in document 168.

⁹⁰ Exhibit A-3, document 169.

⁹¹ Exhibit A-3, document 168.

⁹² Ibid.

⁹³ Transcript, p. 2133.

⁹⁴ Transcript, pp. 1992-93 and 2001. See also exhibit A-3, document 256.

⁹⁵ Transcript, p. 2059.

⁹⁶ Transcript, pp. 2073-74.

⁹⁷ Transcript, pp. 1686-88.

⁹⁸ Transcript, pp. 1800-2 and p. 1811.

⁹⁹ Applicant"s written submissions at paragraph 349. The relevant extracts of Mr. Cliffe"s testimony are from Transcript, pp. 1813-18 and pp. 1861-62.

¹⁰⁰ Transcript, pp. 1814-16 and 1820.

¹⁰¹ Transcript, pp. 2483-84 and 2490.

¹⁰² Transcript, p. 2477.

¹⁰³ Transcript, pp. 2534-36.

¹⁰⁴ Transcript, pp. 2484 and 2488-89.

¹⁰⁵ Supra paragraphs 94, 96, 98 and 99.

¹⁰⁶ Supra paragraphs 124-28. There was no objection to the evidence of Messrs. Kelly and Cliffe.

¹⁰⁷ Exhibit R-33.

¹⁰⁸ Transcript, p. 4063.

¹⁰⁹ Exhibit A-27.

¹¹⁰ Transcript, p. 4063.

¹¹¹ Transcript, pp. 4252-53.

¹¹² Transcript, p. 4255.

¹¹³ Transcript, pp. 4065-67 and 4250-1.

¹¹⁴ Exhibit A-28.

¹¹⁵ Supra, paragraph 133.

¹¹⁶ Transcript, p. 4266.

¹¹⁷ Transcript, p. 4080.

¹¹⁸ Exhibit A-3, document 183.

¹¹⁹ Exhibit A-3, document 184.

¹²⁰ R.S.C. 1927, c. 93.

¹²¹ The issue of legal authority, in the context of this case, suggests the existence of aparallel, and perhaps overlapping, Crown prerogative to ensure national security. The applicant argues that such a prerogative arises implicitly from the Crown prerogative concerning international affairs and national defence. No clear statement of a prerogative in relation to national security was provided by counsel. However, there are numerous instances where national security is mentioned in different contexts: government departmental security clearances (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, and [1981] 2 S.C.R. 90">Lee v. Attorney General of Canada, [1981] 2 S.C.R. 90); the testing of nuclear arms in Canada (The Queen et al. v. Operation Dismantle Inc. et al., [1983] 1 F.C. 745 (C.A.), aff"d [1985] 1 S.C.R. 441); immunity of certain documents held by the Crown (Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.) at 479); the responsibility of the Home Secretary to preserve international security (Regina v. Secretary of State for the Home Department, Ex parte Northumbria Police Authority, [1989] 1 Q.B. 26 (C.A.)); and the extra-territorial application of governmental policies at international law (United States of America v. Ivey (1995), 130 D.L.R. (4th) 674, aff"d 139 D.L.R. (4th) 570 (Ont. C.A.)). None of these decisions speaks to the control and direction of national security and intelligence services. In Canada, prior to the establishment of the Canadian Security Intelligence Service in 1984 (S.C. 1984, c. 21), the Royal Canadian Mounted Police provided security and intelligence services to the federal government. It is at least arguable, in my view, that the Canadian government fulfilled its duty to ensure national security through the exercise of a Crown prerogative, at least prior to 1960 when "such security and intelligence services as may be required by the Minister" was first enacted as among the duties of the R.C.M.P. See P.C. 1960-379, included as part of SOR/72-624, subsection 44(e ) and Canada, Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, vol. 1 (Ottawa: Queen"s Printer, 1981) (Commissioners: D.C. MacDonald, D.S. Rickerd & G. Gilbert) at 64.

¹²² The issue of legal authority is referred to in certain government documents produced inthis proceeding. On August 5, 1946, Cabinet decided not to amend the Immigration Act for the purpose of adding "members of the Nazi party, Fascist party, war criminals and similar groups" as classes of persons prohibited from entry or landing in Canada. Cabinet concluded that "[t]he problem could be dealt with by other means" (Exhibit A-3, document 233). The Security Panel interpreted this Cabinet decision as meaning that the question of security screening "... should be dealt with by departmental administrative action rather than by legislation" (Exhibit A-3, document 234). On September 20, 1946, a senior official, reporting to the Cabinet Secretary, opined that security clearance "was an administrative and not a legal requirement" (Exhibit A-3, document 236). The decision to discard the option of amending the Immigration Act was referred to in a draft memorandum of September 16, 1949 for the Prime Minister, where reference was also made to the earlier decisions that the screening of undesirables should be dealt with by "administrative means" (Exhibit A-3, document 263). None of these documents discloses any opinions that may have been prepared by Justice officials. While I have noted these memoranda with interest, I have not attached significant weight to any expression of legal opinion contained therein.

¹²³ J. Chitty, A Treatise of the Law of the Prerogatives of the Crown and the Relative Duties of the Subject (London: Butterworth & Son, 1820) at 49.

¹²⁴ [1992] 1 S.C.R. 711.

¹²⁵ Ibid. at 733.

¹²⁶ Attorney General v. De Keyser"s Royal Hotel, [1920] A.C. 508 (H.L.) at 526.

¹²⁷ Ibid. at 539-40 per Lord Atkinson: "... when ... a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance".

¹²⁸ Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.); aff"d (1995), 89F.T.R. 136 (C.A.); leave to appeal dismissed without reasons [1995] S.C.C.A. No. 103.

¹²⁹ R.S.C. 1985, c. I-21. In French, section 17 states: "Sauf indication contraire y figurant, nul texte ne lie Sa Majesté ni n"a d"effet sur ses droits et prérogatives."

¹³⁰ Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225 at 281.

¹³¹ R.S.C. 1927, c. 93, section 3.

¹³² Ibid. subsection 38(c). It is of interest to note that the French version of "conditions orrequirements" ("conditions ou exigences") precedes and modifies the socio-economic factors which are enumerated.

¹³³ Supra paragraph 155.

¹³⁴ S.C. 1910, c. 27. In [1967] S.C.R. 792">Re: Offshore Mineral Rights of British Columbia, [1967] S.C.R. 792, the Supreme Court of Canada noted that the sovereignty of Canada was "... acquired in the period between its separate signature of the Treaty of Versailles in 1919 and the Statute of Westminster, 1931" at 819.

¹³⁵ Canada, Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, vol. 1 (Ottawa: Queen"s Printer, 1981) (Commissioners: D.C. MacDonald, D.S. Rickerd & G. Gilbert) at 58-60.

¹³⁶ Ibid. at 58, paragraph 38.

¹³⁷ Ibid. at 60, paragraph 46.

¹³⁸ S.C. 1919, c. 25.

¹³⁹ This view was reflected by Prime Minister King in his speech to the House of Commons on May 1, 1947: "I wish to make it quite clear that Canada is perfectly within her rights in selecting the persons whom we regard as desirable future citizens. It is not a "fundamental human right" of an alien to enter Canada. It is a privilege. It is a matter of domestic policy." (Exhibit A-3, document 243)

¹⁴⁰ Immigration Act, S.C. 1976-77, c. 52, sections 4 and 5. The parties did not address, nor have I considered in any definitive way, whether subsection 33(3) of the Act provided a "right to enter" for persons who satisfied an examining officer at a port of entry in Canada.

¹⁴¹ Exhibit A-3, tab 116, which is the order-in-council of March 21, 1931, P.C. 695.

¹⁴² The use of "may" is normally construed as permissive: Interpretation Act , R.S.C. 1985,c. I-21, section 11. See also Stevenson Construction Co. v. Canada (1978), 24 N.R. 390 (F.C.A.) at paragraph 26; McHugh v. Union Bank of Canada, [1913] A.C. 299 at 314-15; and [1953] 2 S.C.R. 95">Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95 at 97. However, "may" will be construed as establishing a duty to exercise a power where the context imposes that interpretation: Julius v. Lord Bishop of Oxford (1880), 5 App. Cas. 214 (H.L.) at 223-23; and Regina v. Moore (1985), 49 O.R. (2d) 1 (C.A.).

¹⁴³ Exhibit A-3, document 134 which is the order-in-council of November 26, 1947, P.C. 4849.

¹⁴⁴ Order-in-council of June 2, 1949, P.C. 2743.

¹⁴⁵ Order-in-council of June 9, 1950, P.C. 2856.

¹⁴⁶ The reader will note the consistency in the English version of subsection 38(c ) of the Act and subsection 4(a) of P.C. 2856. The French versions of the same provisions vary. See also supra note 132.

¹⁴⁷ The respondent relied on the decision in Dueck , supra note 3, in support of his argument.Upon a careful review of reasons in Dueck, I have concluded that the applicant"s submissions in this case differed substantially. In particular, the applicant appears to have placed far greater reliance on P.C. 4849 in this case than in Dueck . Similarly, the respondent"s reference to the statement in Bogutin, supra note 2, at paragraph 73, is of little assistance in this case. A review of the transcript of counsel"s oral submissions in Bogutin discloses that the legal authority issue was not raised in any significant way in that case.

¹⁴⁸ The evidence with respect to the officials" concern with the legal authority issue issketchy, at best. As I mentioned earlier, supra note 122, the evidence did not include any Justice opinions that may have been sought by P.C.O. officials. As is apparent from my reasons, I respectfully do not share the concern that was expressed at the time.

¹⁴⁹ Supra, note 84.

¹⁵⁰ Some might suggest that the blanket prohibition in these four orders-in-council wasultra vires delegated legislation. Subsection 38(c) of the Act, it could be argued, did not allow for the blanket prohibition in the first operative paragraph of each order. This issue was raised by neither party in this case and I need not decide the question. However, even if these orders were invalid, it is my view that the legal authority to prohibit the entry of collaborators as undesirable persons or security risks can also be found in the orders-in-council which established the visa requirement, pursuant to section 37 of the Act, infra paragraphs 174-180.

¹⁵¹ S.C. 1921, c. 32, section 11.

¹⁵² Order-in-council of November 29, 1938, P.C. 3016. This order-in-council revoked and replaced, with only minor amendments, an earlier order-in-council of January 31, 1923, P.C.185.

¹⁵³ Exhibit A-3, document 136 which is the order-in-council of November 26, 1947, P.C.4851. On June 2,1949, P.C. 4851 was revoked and replaced by P.C. 2744 which maintained the same discretionary visa scheme, with amendments not relevant to this proceeding. I noted earlier, supra note 122, that the Cabinet had discarded the option of amending the Immigration Act to add prohibited classes in section 3. At the same time, in the summer of 1946, officials were also considering amendments to the immigration regulations. It is of interest to note that one official was of the view that even legislative amendment would not "... give authority to institute an adequate form of visa control abroad, ..." and that a submission to Cabinet should suggest "... that visa should be refused to persons on security grounds and that Immigration should carry out such refusal by administrative action until the [Security] Panel has had a further opportunity of examining the ways and means of dealing with the problem as a whole". Some sixteen months later, P.C. 4851 was passed with no specific reference to the security interests of Canada. I can only conclude from this that the government continued to address security considerations, with the involvement of the R.C.M.P., through the visa control process authorized by P.C. 3016 and P.C. 4851.

¹⁵⁴ As early as 1945, officials of the Royal Canadian Mounted Police assisted immigrationofficers in granting landing in Canada to persons who entered subsequent to September 1, 1939 under non-immigrant status. (Exhibit A-3, document 236. See also order-in-council of October 26, 1945, P.C. 6687.) As early as 1947, formal instructions to immigration officers concerning the security screening of displaced persons referred to special arrangements with the Royal Canadian Mounted Police: Exhibit A-3, document 128 at page 6. The involvement of the R.C.M.P. is also set out in a memorandum to Cabinet signed by the Minister responsible for immigration on August 8, 1947: Exhibit A-3, document 247.

¹⁵⁵[1959] S.C.R. 121"> Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140 per Rand J.

¹⁵⁶ While this issue was not raised by counsel, some might suggest that the role of theR.C.M.P. officer unduly fettered the immigration officer"s exercise of the discretion to issue a visa set out in P.C. 4851. In my view, a court reviewing the exercise of the discretion to issue a visa in 1948 would not have found that the procedure violated the principles of administrative law. Even thirty years later, in R. v. Home Secretary, ex p., Hosenball, [1977] 3 All E.R. 452 (C.A.), a decision dealing with the issuance of a deportation order, Lane L.J. observed at 464 "[d]ifferent principles and strict principles apply where matters of the safety of the realm are at stake. What is fair cannot be decided in a vacuum: it has to be determined against the whole background of any particular case." See also Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 (C.A.) at 171 and 172.

¹⁵⁷ Supra paragraph 27.

¹⁵⁸ Supra paragraph 55.

¹⁵⁹ Ibid.

¹⁶⁰ Supra paragraph 79.

¹⁶¹ Supra paragraphs 44 and 65.

¹⁶² Supra paragraphs 9-15.

¹⁶³ As I understand his evidence, the Schutzmannschaften would be the most local presence of the S.S. and was composed of citizens of the territory being occupied by the Germans.

¹⁶⁴ Supra paragraphs 108 and 118.

¹⁶⁵ Supra paragraph 120.

¹⁶⁶ Supra, paragraph 5.

¹⁶⁷ Transcript, pp. 4266-67.

¹⁶⁸ Transcript, p. 4063.

¹⁶⁹ Transcript, pp. 1820 and 2133.

¹⁷⁰ Supra, paragraphs 108, 117-18 and 123. The respondent"s version, which I do not believe, is that in response to the single question concerning his wartime activities, he stated he was not a member of the S.S. According to this version, the respondent admits to having been asked a question which was clearly material. His answer was false on my finding that the Schutzmannschaften was part of the S.S. Even if he did not know that the Schutzmannschaften was part of the S.S., the materiality of the question required candour from him. His failure to add that he served the Germans as a member of the auxiliary police was deceptive. As Lord Fraser stated in Khawaja v. Secretary of State for the Home Department, [1983] 1 All E.R. 765 (H.L.) at 772: "Deception may arise from silence as to a material fact in some circumstances." See also [1974] S.C.R. 850">Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850 at 873.

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Canada (Minister of Citizenship and Immigration) v. Kisluk, docket T-300-97

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