Date: 20060817
Docket: T-440-04
Citation: 2006 FC 994
Ottawa, Ontario, August 17, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
JURA
SKOMATCHUK
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Mr.
Jura Skomatchuk, the Defendant, is now 85 years old. Born in Zabje (Kolomea), Poland, now part of
Ukraine, Mr.
Skomatchuk is an ethnic Ukrainian. He arrived in Canada in May 1952
and became a Canadian citizen on October 19, 1957. Mr. Skomatchuk has lived in
Ontario continuously since his arrival in Canada; he is now
retired from the mining industry and living in Ontario.
[2] The
Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to
revoke the Canadian citizenship of Mr. Skomatchuk on the basis that he was
admitted to Canada and obtained his citizenship by false representations or
fraud or by knowingly concealing material circumstances. Specifically, the
Minister alleges that Mr. Skomatchuk failed to disclose the following
activities during World War II:
(a) his
collaboration with German authorities;
(b) his
engagement, in 1943, as a guard at the Poniatowa Labour Camp, a forced labour
camp in occupied Poland, after training at the SS Trawniki training camp; and
(c) his
engagement, in 1943, as a guardsman in an SS guard unit, at concentration camps
in the German Reich.
[3] From a procedural
perspective, these proceedings began with a Notice, dated November 13, 2003, in
which the Minister at that time (the Honourable Denis Coderre) advised Mr.
Skomatchuk that he intended to ask the Governor in Council to revoke his
Canadian citizenship on the basis of the above-noted allegations. Mr.
Skomatchuk exercised his right to ask that the matter be referred to the
Federal Court. The matter was then referred to the Federal Court by the
issuance of a Statement of Claim filed March 1, 2004 by the Minister.
[4] The hearing of this
matter was held together with that of Canada (Minister
of Citizenship and Immigration) v. Josef Furman (Court File No.
T-560-04), because of the similarity in the evidence for both individual
matters. However, these reasons and decision relate only to Mr. Skomatchuk.
[5] For
the reasons that follow, I am satisfied, on a balance of probabilities, that
Mr. Skomatchuk was an SS Guardsman of the Third Reich and, as such, was engaged
as a concentration camp guard. Mr. Skomatchuk failed to disclose that
information to immigration officials at the time he came to Canada. In other
words, Mr. Skomatchuk obtained his Canadian citizenship by false representation
or fraud or by knowingly concealing material information. Given this
conclusion, there is no need to consider the allegation of collaboration also
put forward, but not strongly argued, by the Minister.
II. Approach to Analysis
[6] As
discussed in more detail below, the task that is assigned to this Court is to
decide whether Mr. Skomatchuk obtained his Canadian citizenship by false
representation or fraud or by knowingly concealing material circumstances (s.
18(1)(b), Citizenship Act, R.S.C. 1985, C-29 (the Citizenship Act,
1985)). Having heard and reviewed the evidence presented in these
proceedings, I have concluded that my decision requires that I make a series of
findings of facts that address the following questions.
- Was an individual
named “Skomatschuk” trained as an SS Trawniki Guardsman at the SS Trawniki
Training Camp and did this individual participate, as a guard, at the
Poniatowa Labour Camp, in occupied Poland, and as
a guard at concentration camps in the German Reich?
- Was Mr. Skomatchuk
the same Guardsman Skomatschuk referred to in 1?
- If it is shown that
Mr. Skomatchuk is the same “Skomatschuk” Guardsman described in 2, above,
did Mr. Skomatchuk conceal these wartime activities from Canadian
immigration officials prior to coming to Canada?
- If I find that Mr.
Skomatchuk did not disclose his wartime position as a Guardsman with the
German SS to Canadian immigration officials, what impact would that have
had on his immigration to Canada and later
acquisition of Canadian citizenship?
[7] Before
addressing these specific questions, it would be helpful to the reader to
understand the legal framework under which this proceeding has been commenced.
Further, as the most serious allegations by the Minister involve activities as
a concentration camp guard, it may also be useful to have an overview of the
system of concentration camps and labour camps in the territories held by the
Third Reich. More specifically, since the alleged activities are associated
with the SS Trawniki Training Camp, I will include an overview of the history
of and procedures for training and use of Trawniki guardsmen.
[8] These reasons
are organized as follows, with each section commencing at the paragraph noted.
I. Introduction……………………………………………………………………..[1]
II. Approach to Analysis…………………………………………………………....[6]
III. Legal Framework ……………………………………………………………….[9]
A. Procedural
Rights…………………................................................................[9]
(1) Section
10(1) of the Citizenship Act, 1985................................................[10]
(2) Deeming
Provision of s. 10(2) of the Citizenship Act, 1985.....................[12]
(3) Section
18 Notice………………………………………………………...[13]
(4) Effect
of Court’s Determination under s. 18……………………………..[15]
B.
Substantive Rights…………………………………………………….……....[16]
(1) Section 10(1) of the
Citizenship Act, 1948.....................................................[17]
(2) Meaning of “lawfully
admitted”…………………………………………...[18]
C. Burden and
Standard of Proof…………………………………………………[21]
IV.
Historical Context………………………………………………………………...[26]
A.
Witnesses..............................................................................................................[26]
B. Concentration
and Labour Camp
System
of the Third Reich…………………[32]
(1) General Description
of Camps….…………………………………………[32]
(2) Administration of
the Camps in the General Government……………...….[38]
(3) Camp System in
the Lublin region of
the General Government………...…[44]
(4) Operation Harvest
Festival……………………………………………..….[47]
(5) Trawniki Training
Camp and Sources of Guardsmen …………………..…[49]
(6) Trawniki Processing
of and Documentation for Guardsmen Trainees…..…[55]
(7) Role of
Guardsmen………………………………………………………...[61]
(8) Integration with SS
Death’s Head Units…………………………………...[65]
V. Background
and Role of Mr. Skomatchuk in World War II………………………[68]
A. Guardsman
Skomatschuk.…………………………………………………….[74]
(1)
Transfer Lists…………………………………………………………..….[75]
(2)
Arrival at SS Trawniki Training Camp…………………………………....[78]
(3)
Transfer to Poniatowa……………………………………………………..[82]
(4)
Transfer to Trawniki………………………………………………………[86]
(5)
Transfer to Sachsenhausen………………………………………………...[91]
(6)
Transfer to Mauthausen Concentration Camp……………………………..[95]
(7)
Conclusion…………………………………………………………………[99]
B. Identity
of Guardsman Skomatschuk..…………………………………………..[101]
(1)
Birth Record………………………………………………………………[103]
(2)
Links between Mr. Skomatchuk and Guardsman Skomatschuk……..……[116]
C.
Conclusion…………………………………………………………………….....[135]
VI. Immigration
of Mr. Skomatchuk to Canada………………………………………….[136]
A. Evolution of Canada’s
Immigration Policy………………………………………[140]
B. Role of
RCMP……………………………………………………………………[147]
C. Grounds for
Rejection…………………………………………………………….[155]
D. RCMP Security
Screening by Mr. Owens…………...……………………………[173]
E. Officer’s
Exercise of Discretion…………………………………………………..[186]
F. Conclusion………………………………………………………………………..[191]
VII. Summary
of Findings………………………………………………………………...[192]
VIII. Overall
Conclusion……………………………………………………………...........[193]
III. Legal Framework
A.
Procedural Rights
[9] With respect to the
legislation that governs these proceedings, the procedural rights of Mr.
Skomatchuk are governed by the legislation in force when the citizenship
revocation proceedings are initiated. In this case, the relevant provisions are
ss. 10 and 18 of the Citizenship Act, 1985. These provisions are
set out in full in Appendix A to these reasons.
(1) Section 10(1) of the Citizenship
Act, 1985
[10] Pursuant to s. 10(1) of
this Act, the Minister may make a report to the Governor in Council to
the effect that a person has obtained their citizenship “under this Act” by
false representation or fraud or by knowingly concealing material
circumstances. If the Governor in Council is then satisfied that the person
obtained their citizenship in such a manner, “the person ceases to be a
citizen”.
[11] It
is settled that the expression “under this Act”, where it appears in s. 10(1)
of the Citizenship Act, 1985, must be interpreted as “under this
Act, the Citizenship Act, as enacted from time to time” (Canada (Minister
of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J.
No. 1428 (QL) at para. 113). That is, a misrepresentation under a former Citizenship
Act is caught by s. 10(1) of the Citizenship Act, 1985.
(2) Deeming
Provision of s. 10(2) of the Citizenship Act, 1985
[12] It
may be the case that a person did not directly lie or conceal information at
the time of obtaining Canadian citizenship but did so to the overseas
immigration officer who approved him for entry into Canada. This
situation is addressed in s. 10(2). Pursuant to this provision, a person is
deemed to have obtained his citizenship by fraud or by knowingly concealing
material circumstances if he was “lawfully admitted to Canada for
permanent residence by false representation or fraud or by knowingly concealing
material circumstances” and, because of that admission, subsequently obtained
his citizenship.
(3) Section 18
Notice
[13] Section
18 of the Act requires that, before the Minister makes a report to the
Governor in Council, he must give notice of his intention to do so to the
person concerned. That person may then request that the question of whether he
obtained his citizenship by false representation or fraud or by knowingly
concealing material circumstances be referred to this Court. If this Court
decides in the positive, the Court’s decision will form the basis of the
Minister’s report.
[14] In
this proceeding, Notice under s. 18 was signed by the Minister on November 13,
2004 and provided to Mr. Skomatchuk. By Notice of Request, Mr. Skomatchuk
requested that the Minister refer this case to the Federal Court.
(4) Effect of
Court’s Determination under s. 18
[15] The
Court’s determination does not, in itself, constitute a decision to revoke or
terminate the citizenship of a person. Rather, the decision of this Court
provides the Minister with a factual basis for the report and may constitute the
foundation of a decision of the Governor in Council. Only the Governor in
Council has the duty and power to decide whether to revoke citizenship. While
the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship
Act, 1985, s. 18(3)), a decision of the Governor in Council may be
judicially reviewed (see for example, Oberlander v. Canada (Attorney
General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL)).
B.
Substantive Rights
[16] With
respect to substantive rights in relation to the acquisition of citizenship, I
must examine the legislation in force at the time citizenship was acquired.
Citizenship, in this case, was acquired in 1957. Accordingly, the two Acts that
govern are the Canadian Citizenship Act, R.S.C. 1952, c. 33, proclaimed
in 1948, (the Citizenship Act, 1948) and the Immigration Act,
R.S.C. 1952, c. 325, also proclaimed in 1948 (the Immigration Act, 1948).
(1) Section
10(1) of the Citizenship Act, 1948
[17] Section
10(1) of the Citizenship Act, 1948 sets out the criteria that
were to be satisfied, in 1957, in order to be granted a certificate of
citizenship. The provision is set out in full at Appendix A. Of particular
relevance to these proceedings, Mr. Skomatchuk had to satisfy the Minister that
he had been “lawfully admitted to Canada for permanent residence” (s. 10(1)(b))
and that he was of “good character” (s. 10(1)(d)). Obviously, there are other
criteria such as adequate knowledge of English and French and adequate
knowledge of responsibilities and privileges of Canadian citizenship; they are
not at issue in this case. In effect, the lawfulness of admission to Canada is a
condition precedent to the acquisition of Canadian citizenship.
(2) Meaning of
“lawfully admitted”
[18] To
establish what is meant by the term “lawfully admitted”, I must turn to the Immigration
Act, 1948. In s. 2(n), “landing” is defined as “the lawful admission
of an immigrant to Canada for permanent residence”.
[19] For
admission to Canada, an
individual was required to undergo an examination before an immigration officer
to determine whether he “is or is not admissible to Canada” (Immigration
Act, 1948, s. 20(1)). Section 20(2) requires that the person “shall
answer truthfully all questions put to him . . . and failure to do so . . .
shall, in itself, be sufficient ground for deportation”. Of further interest is
s. 50(f) which stipulated that every person who "knowingly makes any false
or misleading statement at an examination or inquiry under this Act or in
connection with the admission of any person to Canada or the application for
admission by any person” was guilty of an offence under the Immigration Act,
1948.
[20] In
sum, the scheme in 1957 was clear; misrepresentation during the examination for
landing was not to be condoned. A person who lied or withheld material facts
from the immigration officers before whom he appeared for examination was not
“lawfully admitted” to Canada (Canada (Minister of Citizenship
and Immigration) v. Bogutin, [1998] F.C.J. No. 211 (QL) (F.C.T.D.)
at para. 126) and, thus, was in breach of the Citizenship Act, 1948.
C.
Burden and Standard of Proof
[21] The
burden of proof clearly rests with the plaintiff Minister.
[22] For
purposes of defining the appropriate standard of proof, it is important to note
that this is a civil proceeding rather than criminal.
[23] In
one of the first cases of this type – Canada (Secretary
of State) v. Luitjens (1991), 40 F.T.R. 267, [1991] F.C.J. No. 1041
(F.C.T.D.) – the Court found that the standard of proof that the plaintiff had
to meet was what the Court called “high degree of probability”. This has been
rejected in the jurisprudence that has followed where the standard of proof has
now been held to be that of balance of probabilities Bogutin, above at
para. 110; Canada (Minister of Citizenship and Immigration) v.
Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 (QL) at para. 7; Canada
(Minister of Citizenship and Immigration) v. Baumgartner, 2001
FCT 970, [2001] F.C.J. No. 1351 (QL) at para. 8; Canada (Minister of
Citizenship and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J.
No. 286 (QL) at para. 13; Canada (Minister of Citizenship and
Immigration) v. Oberlander, [2000] F.C.J. No. 229 (QL) (F.C.T.D.) at
para. 187; Canada (Minister of Citizenship and Immigration) v.
Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824 (QL) (F.C.T.D.) at
para. 5; and Canada (Minister of Citizenship and Immigration)
v. Katriuk (1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 (QL) (F.C.T.D.) at
para. 38).
[24] Thus,
it is well established that, for a proceeding of this nature, the standard of
proof is the civil standard of balance of probabilities. In a case, such as
this, however, where the allegations of conduct are morally blame-worthy and
have serious consequences for the defendant, the jurisprudence teaches that I
take great care in assessing the evidence (see, for example Odynsky,
above at para. 13).
[25] The
balance of probabilities standard will be met if the Court is satisfied, on the
evidence, that the existence of a fact in dispute is more probable than not. In
other words, based on the evidence before this Court, I must find that the
event or fact in dispute is not only possible but probable (Obodzinsky,
above at paras. 8-9). In this context of serious allegations and
consequences for the individual, the inherent probability or improbability of
an event is itself a matter to be taken into account (Re H (minors),
[1996] A.C. 563 (H.L.)).
IV. Historical Context
A.
Witnesses
[26] Two
witnesses presented by the Minister were particularly helpful with respect to
the historical context of these proceedings.
[27] The
first of these witnesses was Dr. Johannes Tuchel, an historian. In these
proceedings, he was qualified as an expert witness to testify with respect to
the following:
·
the
terror apparatus of the Third Reich;
·
the
history of World War II;
·
general
information about concentration camps and the concentration camp system,
including camps at Trawniki, Poniatowa, Flossenbürg, Sachsenhausen and
Mauthausen and related satellite camps;
·
the
role of Trawniki guards in the Third Reich; and
·
the
liquidation or “cleansing” of the ghettos of Warsaw and Bialystok.
[28] In
addition to Dr. Tuchel’s oral testimony, the Minister presented into evidence a
document entitled “The Deployment of SS Guardsmen (SS-Wächmanner) from Trawniki
in National Socialist Concentration Camps”, dated October 2005 and prepared by
Dr. Tuchel (the Tuchel Report).
[29] The
second witness was Dr. Jack Terry. Dr. Terry was born March 10, 1930 in
Belzyce, Poland, about 20
kilometres from Lublin. He testified as to the conditions in labour
and concentration camps of the Third Reich and as to the role of Ukrainian
guardsmen.
[30] Dr.
Terry is a Jew. On May 8, 1943, the remaining residents of his town were
rounded up by a team consisting of an SS member named Reinhold Feix and 24 Ukrainian
guards. Those
who were not fit for labour, such as older women and children, were executed
outright. Others were forced to dig their graves and sent to labour camps. Dr. Terry was
sent to Budzyn where he remained until April 1944. At that time, he was transferred
to Wieliczka, a salt mine near Krakow, where he worked 600 metres below ground
in a Nazi airplane factory. His last destination was the Flossenbürg
concentration camp where he arrived on August 4, 1944. At this camp, he worked
in a stone quarry for two weeks and, thereafter, in an underground
Messerschmitt factory. When the camp was liberated on April 23, 1945 by the
American Army, it appears that Dr. Terry was the only surviving Jew at the
camp; all others were evacuated and “taken on the death march” in the days
preceding the liberation.
[31] Dr.
Terry’s direct and compelling testimony affirmed the well-known view of the
brutal treatment of inmates in concentration camps during World War II.
Further, his testimony reminds us of why persons associated with the
administration of the camps were not welcome in Canada.
B. Concentration and Labour Camp
System of the Third Reich
(1) General Description of Camps
[32] Dr. Tuchel provided a
robust history of the purpose and structure of the concentration camp system in
the Third Reich, and drew to the Court’s attention the distinction between the
main camp system within the expanding borders of Germany itself, and a separate
system located in the German-occupied region of Poland known as the “General Government”
(Generalgouvernement). The Nazi government utilized concentration camps as a
tool of control and oppression from the early 1930s onward. As early as
February 1933, the second commandant of the Dachau concentration camp, Theodor Eicke, had established
“a standardized system of violence… to ensure a maximum of systematic brutality
against the inmates” (Tuchel Report at 60).
[33] There were three general
types of war-time camps:
· Labour camps – Jews
performed forced labour in these camps, supporting German industry, but were
not necessarily confined to the camps. Initially, these camps were not part of
the concentration camp system. Two labour camps, located at Poniatowa and
Trawniki, in occupied Poland, are of relevance to
these proceedings.
- Concentration camps – These were
incarceration camps. Many types of prisoners were confined to these camps,
including Jews, Poles, Russians, and Germans. By 1942, forced labour was
introduced to these camps. Many inmates died from starvation, disease, and
murder. Of particular importance to this inquiry are two concentration
camps:
- Sachsenhausen, located at Oranienburg,
near Berlin, constructed in
1936; and
- Mauthausen, located near Linz in Austria, built in 1939.
- Extermination camps – the sole purpose of
these camps was to exterminate all Jews that arrived through their gates.
These camps are distinguished from concentration camps by their single,
genocidal purpose. Extermination camps were located in the General
Government (occupied Poland).
[34] Ghettos were a fourth
type of confinement for Jews in the area of the General Government. In this
system, Jews were restricted to a relatively small section of a city. Ghettos
served as a source of slave labour for German industries, but also as a way to
concentrate Jews and make it easier to transport them to labour, concentration
or extermination camps.
[35] In the pre-war period,
and until 1942, the objectives of the camps were to suppress political enemies
and suppress opposition in occupied countries. It was in 1942 that
concentration camps also became labour camps, and inmates were forced to work
for the German arms industry. Dr. Terry testified that “living conditions” was
the wrong term for life in the concentration camps; the conditions were
anything but suitable for life. Starvation was the norm and hygiene was
impossible. Dr. Terry explained that the German camp policy was “extermination
through work.”
[36] It is clear from the
evidence of both Dr. Tuchel and Dr. Terry that mass murder was the overall goal
of the camp system. As Dr. Tuchel testified, extermination camps had “only one
purpose, to kill people”. SS documents recovered after the war indicate the
deliberate brutality of the camp conditions; the Jewish labour was to be
“literally exhaustive… The working hours are not subject to any limitations”
(Tuchel Report at 63).
[37] From 1942 onward,
concentration camps continued to grow with the influx of Eastern European
prisoners. The major camps grew in size and a network of “satellite camps” sprang
up; these smaller camps were located near a major concentration camp and fell
under its administration. For example, the Gusen camp was an Austrian satellite
camp attached to the larger Mauthausen concentration camp.
(2) Administration of the Camps in the General Government
[38] All of the camps in Germany and German-occupied
lands fell under the responsibility of Heinrich Himmler, Reichsführer SS and
Chief of German Police and Gestapo (secret police).
[39] In the General
Government, the Head SS and Police Leader (HSSPF) had jurisdiction over the
exploitation of Jewish forced labour generally, and over the labour and
concentration camp system in that region. The General Government was divided
into several administrative districts, one of which was the Lublin district. Each district
was controlled by an SSPF (SS and Police Leader). The SSPFs directly oversaw
the camps in their regions and answered to the HSSPF and, above him, to
Heinrich Himmler.
[40] In the General
Government, between 1939 and 1941, Jews were consolidated into forced labour
groups and ghettos, and moved to a growing network of labour and concentration
camps. In late 1941, extermination camps were also developed in this region.
The General Government had been chosen as the region to carry out the genocidal
objectives of the Nazi and SS leaders. Since mass executions were proving too
difficult and too public, the “Final Solution of the Jewish Question” was
determined at the Wannsee Conference on July 31, 1941: to evacuate Jews to
eastern occupied Poland, where they could all
be killed in the camps.
[41] This “Final Solution”
was carried out under the code name Operation Reinhard (“Aktion Reinhard”).
This operation saw the construction of, among others, the three extermination
camps in the Lublin region – Belzec,
Sobibor, and Treblinka – and the murder of over 1.7 million Jews. Operation
Reinhard commenced in late 1941 and continued until October 1943. After that
time, the extermination camps in the Lublin area were shut down and disguised as farms, and
a skeleton guard was left at those locations.
[42] It is important to note
that the concentration camp system throughout Germany and the occupied territories was entirely
under the supervision and control of Heinrich Himmler and therefore the SS and
German Police. In autumn 1943, administration of the camps was shifted from the
SSPFs to the newly-formed SS Economic and Administrative Main Office (SS-WVHA,
or “SS-Wirtschafts-Verwaltungshauptamt”), Administrative Group D. This
administrative change emphasized the growing importance of forced labour to the
Third Reich and the escalation of genocidal policies.
[43] German Guard Units in
the camp system were called the “Totenkopfverbande” or “SS Death’s Head Units”
(and later “SS Death’s Head Battalion”) by order of Himmler himself. The SS
Death’s Head Units were specifically separated from the Armed Forces and the
Police; they were to become the core of an SS elite troop. The original German
members of this Unit were marked by “blood” tattoos, which indicated their
blood types.
(3) Camp System in the Lublin Region of
the General Government
[44] The Lublin region contained all
three types of camps. There were labour camps such as Poniatowa, Budzyn, and
the Trawniki labour camp (see below; this labour camp was attached to the
Trawniki Training Camp for guardsmen). There were also concentration camps,
such as the Lublin concentration camp.
Finally, there were extermination camps such as Belzec, Sobibor, and Treblinka.
All of these camps were under the supervision of the SSPF Lublin.
[45] In 1942 and early-to-mid
1943, the process of evacuation or “cleansing” of Jewish ghettos throughout the
General Government took place. The goal was to empty the ghettos and move all
Jews to the camps and, eventually, kill them. Jews were forcibly rounded up and
sent to concentration or extermination camps, including the Poniatowa and Lublin concentration camps and
the Treblinka extermination camp.
[46] In September 1943, the
General Government concentration camp administration was placed under the
SS-WVHA. At this time, many people from the occupied territories were taken
from their homelands and forced to work for Germans in other parts of Europe;
those who protested or did not work hard enough were sent to the concentration
camps. This change also eliminated all labour camps; only concentration camps
and extermination camps were to exist from that point on. Accordingly, all
labour camps in the Lublin region, including
Poniatowa and Trawniki, were converted to concentration camps and placed under
the administration of the larger Lublin concentration camp.
(4) Operation
Harvest Festival
[47] Following
closely on the heels of the change in camp administration, Operation Harvest
Festival (“Aktion
Erntefest” in German) took place on November 3 and 4, 1943, with the intent of
exterminating the Jewish populations in a number of concentration camps. Dr.
Tuchel explained the reasoning behind the timing and motivation of this event:
First,
why did the Germans carried out this Operation Harvest Festival? You have some
uprising, especially in the Sobibor extermination camp in August 1943. Because
the leaders of the SS and Police, especially Himmler himself, had the fear that
there could be other uprisings, they decided to kill all Jews who stayed in the
labour camps.
So you have different decisions in the year 1943. First,
to place all Jews in labour camps. Then in September they made it satellite
camps of a concentration camp. Then one month later, they decided to kill them
all because they had the fear of another uprising in these Jewish camps. Maybe
400 guards - it's a high estimation - maybe a little less than 400 guards for a
camp with 14,000 Jews, so they fear another uprising. That's why they
implemented the Operation Harvest Festival and decided to kill all inmates of
these camps and of the other camps.
[48] At least 14,000 Jews at
Poniatowa and 5,000 to 8,000 Jews at Trawniki were killed in this operation, as
well as many others in the Lublin concentration camp and its satellite camps. According to
Dr. Tuchel (see Tuchel Report at 43, 56 – 57), the regular guards of these
camps, including Trawniki Guardsmen, did not perform the killings. Instead,
Waffen-SS and Police battalions and Security Police came to the camps to carry
out the mass murders. The Trawniki Guardsmen were present during the operation,
stood guard and corralled Jews who tried to escape, and covered the dead bodies
with fir branches for concealment. After Operation Harvest Festival, a skeleton
crew of guards was left at Poniatowa to conceal the now-defunct camp and guard
the remaining buildings; the rest were returned to Trawniki. Dr. Tuchel
indicated that the remaining guards exhumed the bodies two weeks later and
burned them, then scattered the ashes in the surrounding forest.
(5)
Trawniki Training Camp and Sources of
Guardsmen
[49] I turn to a review of
the German facility that is central to these proceedings. Among the various
camps located in the General Government, a unique dual-camp was located at
Trawniki, about 35 km from the town of Lublin and close to the border with Ukraine. This location
contained a labour/concentration camp (Labour Camp Trawniki) as well as an
adjoining training camp for non-German guardsmen (SS Training Camp Trawniki).
Like the other camps in the Lublin region, the Trawniki camps were at first under the
supervision of the SSPF Lublin and, as of September 1943, under the SS-WVHA
organization (at which time the labour camp became a concentration camp).
[50] Guardsmen trainees came
to Trawniki in a number of ways. Some were German volunteers. Many were
prisoners of war who had been captured by the Germans. Of importance to these
proceedings, many guardsmen were recruited from the German-occupied Ukraine region, an area that
bordered on the General Government.
[51] Documentary
evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans
were desperate for extra manpower after their invasion of the USSR in 1941. On
July 25, 1941, faced with severe labour and police shortages in the vast, newly
conquered Eastern European territories, Heinrich Himmler instructed SS and
Police Leaders, including SSPF Globocnik (the first commander of Trawniki
Training Camp), to establish:
. . . protective formations made up of
those population groups in the occupied territories who are friendly towards
us, as has already been done in some cases by the Operational Task Forces
(Einsatzgruppen) of the Security Police. These protective formations should be
formed primarily of Ukrainians, residents of the Baltic countries, and
Byelorussians. They should be selected from among the men who still live in
those regions, and from among non-Communist prisoners of war. [Emphasis
added.]
[52] In 1941 and
1942, the Trawniki Training Camp gained its recruits principally from Soviet
prisoner of war camps among the German-occupied territories. Demand for trained
guardsmen from Trawniki steadily rose, but the supply of prisoners of war did
not. Many prisoners of war died from starvation and disease in the camps, and
the 1941/1942 winter was particularly brutal, killing most of the Soviet prisoners
of war (in particular, the inmate population at the Poniatowa camp was
completely devastated, vacating it for later use as a Jewish labour camp). Thus,
Camp Commandant Karl Striebel (appointed by SSPF Globocnik) began taking in
“volunteers” from the local and surrounding areas.
[53] According
to statements made by Striebel in proceedings against him after the war, “up to
three men applied in Trawniki every day as volunteers”, mainly from the
district of Lublin (Tuchel Report at 27). In 1943, Striebel expanded his
recruitment to Polish and Ukrainian districts, including Galicia and Kolomea.
Men were gathered and medically examined by local Circuit Administrations, then
arrived by transport at Trawniki. In February 1943, more than 300 recruits
arrived by train from Galicia, mainly from the
Stanislau and Kolomea regions. In April, 1943, another transport of recruits
arrived from the Kolomea and Gorodenko regions.
[54] The
term “volunteer”, as applied to the Ukrainian recruits, was the subject of some
discussion. How voluntary was the service of these men? Little evidence was
provided, and little may exist, regarding the recruitment techniques used or by
the motivations of the “volunteers”. Dr. Tuchel testified that the Germans
received a warm welcome in many of the regions that they conquered from the
Soviets – at least, at first. That sentiment for many soon turned to dismay and
horror. It is certainly possible that many of the individuals who came to
Trawniki were lured by anti-Soviet sentiment, by the promise of a steady wage
and family benefits, by fascist or racist beliefs similar to the Nazis, or by
some combination of these factors. On the other hand, it is equally possible
that others signed up for duty under threat or fear of the alternatives.
Ideologically, it is easy to say – today – that persons faced with serving as
concentration camp guards could have and should have deserted or refused to serve.
We were not there and will never know the whole truth unless we hear testimony
from an affected individual. We do know, however, that some men from that
region made other choices; some served as front line troops for the Third
Reich, and some deserted. In the absence of any evidence to the contrary, it is
reasonable to assume that there was at least some degree of volition by the
Ukrainian recruits who served as Trawniki guards.
(6)
Trawniki Processing of and Documentation for Guardsmen Trainees
[55] Upon
their arrival at Trawniki, new recruits were photographed. In the Camp office,
a personnel sheet (Personalbogen) and personnel card (Personalkarte) was kept
for each individual. Each recruit was assigned a registration number which “was
to stay with the recruit and future guard for as long as he served in Trawniki
or at a location or commando to which he was assigned from Trawniki” (Tuchel
Report at 25).
[56] Dr. Tuchel provided
evidence that this registration number was a feature of the Trawniki Training
Camp that was not used in the German concentration camp system. A registration
number was unique to a guardsman. No number was ever assigned to another
individual, even if a guardsman died. Once Trawniki men were transferred out of
the Trawniki camp system and into the German concentration camp system, their
registration numbers were no longer used for identification. Dr. Tuchel
testified that, with this information, he could track an individual guardsman
among camp documents such as the Transfer Lists, which are discussed in detail
below.
[57] Dr. Tuchel also
testified that the registration numbers were given out in a sequential basis
upon recruitment, beginning with the number 1 and progressing upward. About
5,000 guardsmen were trained at Trawniki. Dr. Tuchel also explained how he
could estimate when a recruit arrived at the camp. By examining the few
surviving Personalbogen and Personalkartes of Trawniki guardsmen, which
indicate their date of arrival, and by examining the registration numbers on
various Transfer Lists, which are also dated, Dr. Tuchel could pinpoint a time
frame in which a guardsman with a given registration number must have arrived
at the Training Camp.
[58] Every
recruit signed a service pledge (Dienstverpflichtung), which makes it evident
that the guardsmen were considered to be part of the SS. As of the spring of
1942, the pledge had the following wording:
. . . I hereby declare that I pledge to
serve in the Guard Units of the SS and Police Leader in the District of Lublin
for the duration of the war, and that I subject myself to the existing service
regulations and disciplinary regulations.
[59] Dr. Tuchel’s evidence
was that, when transferred out of the Lublin district (for example, to a concentration camp
within the German Reich itself), the identity documents of the individual
guardsman were sent with him. Thus, the Personalbogen and Personalkarte of a
guardsman sent to a camp beyond the Lublin district would not remain at Trawniki. This
becomes important in this case because no personal identification documents
have been located for Guardsman Skomatschuk, Registration No. 3321. Thus, there
is no direct evidence as to when this person arrived at Trawniki and no
photograph that could link this person to the Defendant, Mr. Skomatchuk.
[60] Dr. Tuchel provided a
cogent explanation for the absence of many personal identification documents
for Trawniki guardsmen, in both his Report (Tuchel Report at 89) and his oral
testimony. In the face of pending defeat, the Nazi regime, “especially the
staff of concentration camps”, had made every effort to destroy records that
would implicate concentration camp soldiers and guards. Thus, only a few of the
Personalbogen of Trawniki guardsmen transferred to concentration camps in the
German Reich survived. Some documents (including the Transfer Lists referred to
below) from Trawniki survived only because they were seized by the Soviet army
as they liberated the camp.
(7)
Role of Guardsmen
[61] As Dr. Tuchel explained
in both his report and testimony, the Trawniki guardsmen were used for many
purposes. They acted as guards for labour, concentration, and extermination
camps; they assisted in guarding important non-military locations such as
saw-mills; and they participated in clearing Jewish ghettos. Later on, they
were mixed with German guard units and some were transferred to concentration
camps within the Third Reich. Trawniki guardsmen were each issued a simple
rifle and a bayonet in order to fulfill their duties.
[62] Trawniki guardsmen began
their training by guarding the Trawniki Labour Camp. The guardsmen’s role was
to watch over the Jewish inmates, to escort them to and from their work, and to
shoot any attempted escapees. The guardsmen carried out these same duties when
sent to other labour camps, including Poniatowa.
[63] Dr. Tuchel indicated
that, according to reported accounts from the camps, the Trawniki guardsmen
also interacted with inmates in various unsavory ways. Some Trawniki guardsmen
beat the inmates or forced them to assault each other. The guards at Poniatowa
sometimes took money from Jews in return for some privileges, such as being
allowed to communicate with relatives through the barbed wire fence around the
camp and obtain food, but this practice varied with the strictness of the camp
commander. Dr. Terry testified that, at Flossenbürg, Ukrainian guards (who very
likely were Trawniki men) would bait inmates into attempting to escape and then
shoot them; the guards were often rewarded for killing “escapees.”
[64] Documentary evidence
canvassed by Dr. Tuchel indicates that Trawniki guardsmen were involved in the
clearing of the Warsaw and Bialystok ghettos,
and other ghettos in the Lublin area. Some Trawniki men
also served in the extermination camps where they performed guard service,
sealed off arriving transports, unloaded railway cars carrying Jews, and
escorted Jews to the gas chambers. Documentary evidence shows that Trawniki men
participated in gassing of Jews at Treblinka, by starting the motors that
pumped gas into the death chambers.
(8) Integration
with SS Death’s Head Units
[65] In 1943, the Trawniki
guardsmen were comprised of former Soviet prisoners of war and of volunteers.
Up to this time, the Trawniki men had been somewhat unreliable; there had been
a significant number of desertion attempts. To solve this problem, the Lublin
SSPF suggested to Himmler that the Trawniki men be integrated into the regular
German guard units, known as the SS Death’s Head Battalions. Beginning in 1943,
Trawniki men were exchanged with German guardsmen from concentration camps
within Germany itself. German records
show that every effort was made to treat the Trawniki guardsmen as members of
the SS Death’s Head Guard Battalion: they were to be treated as comrades; they
received the same pay and benefits as German soldiers; and their duties were
the same as German guards.
[66] German records,
including two of the Transfer Lists that are central to this inquiry, show the
transfer of hundreds of Trawniki guardsmen to German concentration camps such
as Flossenbürg and Sachsenhausen. According to Dr. Tuchel’s Report,
“approximately 870 Trawniki SS Guardsmen can be identified by name who were
transferred from Trawniki to the SS Death’s Head Guard Battalions in
concentration camps between April and November 1943” (Tuchel Report at 80). Dr.
Tuchel indicated in testimony that, once in Germany, the Trawniki men were deliberately broken
up from their company and distributed among the Death’s Head Units.
[67] In my view, there is
little doubt that the Trawniki guardsmen were not only members of the SS, but,
as of 1943, also members of the SS Death’s Head Guard Units. While it appears
that they did not carry the Blood grouping tattoo that was borne by the German
members, in every other regard, they were part of those Units.
V. Background and Role of Mr. Skomatchuk in
World War II
[68] With
this background, I move to consider the particular circumstances of the
Minister’s allegations.
[69] A
number of facts concerning Mr. Skomatchuk are either set out in the Agreed
Statement of Facts filed by the parties or are not in dispute.
(a) Mr. Skomatchuk is an
ethnic Ukrainian, born February 26, 1921 in Zabje (village), Kolomea raion
(district) within the Ivano-Frankivsk oblast (region). (Both Zabje and Kolomea
appear throughout the documents with a variety of spellings, all of which can
be accounted for by the translations from Cyrillic writing.) In 1921, the
Ivano-Frankivsk oblast was part of Poland. In 1939, this region became part of the USSR and, in 1941, was
occupied by Germany and became part of the
General Government.
(b) From May 1945
to March 1948, Mr. Skomatchuk was in the Wels district of
Austria.
(c) On March 23, 1948, Mr.
Skomatchuk arrived in the United Kingdom, where he worked as part of a British
labour program; he never obtained permanent resident status or citizenship in
the UK.
(d) On May 17, 1952, Mr.
Skomatchuk left Southampton, UK for Canada, arriving in this
country on or about May 26, 1952.
[70] The
critical question is what Mr. Skomatchuk was doing between 1943 and 1945. Mr.
Skomatchuk claims that he was conscripted to perform forced labour for the Nazi
regime and did so in this period. The Minister contends that Mr. Skomatchuk was
a Guardsman with the German SS and was engaged, for at least part of that time,
as a concentration camp guard. It is evident that not both of these stories can
be true.
[71] The
next phase of my analysis consists of two steps. First I must consider whether
the evidence establishes that someone with the name of Skomatschuk was a
Trawniki guardsman who engaged in the activities claimed by the Minister. The
second part of the analysis (beginning at para. 101) involves determining
whether the evidence establishes, on a balance of probabilities, that Mr.
Skomatchuk, the Defendant, is the same Trawniki guardsman.
[72] It
should be made clear that the Minister does not assert that, during this
period, Mr. Skomatchuk carried out any particular acts of violence. Rather the
Minister’s submission relates to Mr. Skomatchuk’s alleged engagement as a
Trawniki guardsman.
[73] For
both parts of the analysis, the evidence presented by Dr. Tuchel is
particularly relevant. Dr. Tuchel testified, as described above, as to the role
of the Trawniki Training Camp and its guardsmen. Further, he provided evidence
about the important Transfer Lists and other documents that relate to Guardsman
Skomatschuk.
A.
Guardsman Skomatschuk
[74] The Minister asserts
that the evidence establishes that there was an SS Guardsman Jura Skomatschuk,
Registration No. 3321, whose movements can be determined from his arrival as a
recruit at Trawniki to a final assignment at the Mauthausen concentration camp.
(1) Transfer
Lists
[75] No
personal identity documents from the Trawniki Training Camp exist for this
particular Guardsman. The key references that we have to a Guardsman
Skomatschuk are on documents known as Transfer Lists. The Transfer Lists are
photocopies of original documents being held in the Central Archives of the
Federal Security Service (FSB) of the Russian Federation, in Moscow. The
photocopies are of varying quality and, in one case, two separate copies of the
same original document have been provided.
[76] All
of these documents are similar in content and design. They are typewritten in
German, sometimes with German handwriting on some portions. Each document also
contains handwritten Cyrillic notations. The lists record the transfer of
guardsmen between "Training Camp Trawniki" and other labour camps,
concentration camps or SS formations. The documents each contain a list of
names and corresponding registration numbers, organized by rank. In some cases,
the documents also state the birth date and birth location of the guardsmen.
The documents are dated and, in most cases, signed. In Canada (Minister
of Citizenship and Immigration) v. Skomatchuk, 2006 FC 730, [2006]
F.C.J. No. 928 (QL), after hearing a motion on the admissibility of the
Transfer Lists, I determined that the Transfer Lists should be admitted as
evidence in these proceedings. As noted in that decision, there are a number of
indicia of the reliability of these documents:
- The lists were
prepared as part of the administration of the concentration camps and the
movement of guards from one location to another within the system;
- The documents
contain lists of names and other factual information; in other words, they
consist of objective information and not opinions or reports of a
subjective nature;
- The lists were
prepared by persons with no interest in these proceedings; they were not
prepared in contemplation of litigation;
- The documents were
prepared contemporaneously with the events, as stated by Dr. Tuchel;
- The lists all have
common elements, such as a uniform design, structure and purpose; they are
consistent as to form and content, with a few minor exceptions;
- Six of the seven
lists are signed by senior officers of the SS or German police, as
identified by Dr. Tuchel;
- Some of the
information contained in the lists is corroborated by other documents of
German origin that have been examined by Dr. Tuchel at the FSB Archives
and elsewhere; and
- The Transfer Lists
are consistent with 30 to 40 such lists that have been seen by Dr. Tuchel.
[77] I
admitted these documents subject to the condition that Mr. Skomatchuk could
present further evidence and argument regarding their reliability. The only
objection by Mr. Skomatchuk related to the fact that the documents had been
held by Soviet authorities since the end of the war. The suggestion is that the
documents could have been altered in some way. Mr. Skomatchuk did not present
any evidence as to how or why any such alterations would have been made. There
is nothing on the record that would indicate that the Soviet or Russian
authorities changed the typewritten German text of the Transfer Lists. Mr.
Skomatchuk’s objection to the Transfer Lists on this basis is without
substance. Accordingly, I conclude that the Transfer Lists are a reliable
source of information on the existence and movement of SS Guardsmen from the
Trawniki Training Camp.
(2) Arrival at SS Trawniki
Training Camp
[78] I begin with Dr.
Tuchel’s evidence that a number of recruits arrived for training at the
Trawniki training camp on April 7, 1943. How is this fact established? In his
research, Dr. Tuchel was able to examine the Personalbogen for a number of
individual guardsmen whose arrival date at the camp was set out as April 7,
1943. These guards were assigned registration numbers that fell between 3301
and 3398. From Dr. Tuchel’s evidence that registration numbers were assigned
sequentially and that no two guardsmen were ever given the same number, it
follows that a guard with the number 3321 would have arrived at Trawniki on the
same day – that is, April 7, 1943.
[79] A further piece of
relevant evidence is that Dr. Tuchel found that all of the men whose
Personalbogen he was able to locate within this sequence of registration
numbers arrived from the Kolomea region of Ukraine.
[80] The registration number
of 3321 is set out in three Transfer Lists. And, in each case, the number is
associated with a man named “Jura Skomatschuk”. One list refers to a “Jura
Skomatachuk”; this is almost certainly a simple typographical error of no
importance. In my view, the inescapable conclusion is that: (a) a person named
Skomatschuk arrived at Trawniki on April 7, 1943 and was registered with number
3321; and (b) the Transfer Lists that include a guardsman with registration
number 3321 are referring to the same person. It is also more probable than not
that this guardsman was from the Kolomea area of Ukraine.
[81] To establish the history
of Guardsman Skomatschuk, I turn to the Transfer Lists.
(3) Transfer to Poniatowa
[82] The first Transfer List
of relevance is that dated May 25, 1943 (the May 1943 Transfer List). This list
documents the transfer of guardsmen from the Trawniki Training Camp to the
Poniatowa labour camp. Listed at number 21 is “Skomatschuk, Jura” with
Registration No. 3321. Dr. Tuchel testified that the information in this list
is consistent with what was going on at Poniatowa at that time. First, there
were Jews there who had been transferred to this labour camp or who had come
there from the Warsaw ghetto clearing. More
guards were needed to cope with the increased numbers of inmates at the camp.
This date of transfer is also consistent with Dr. Tuchel’s evidence that
training for Trawniki guards lasted about six weeks.
[83] The third internal
consistency is that there is an almost perfect correlation of registration
numbers for the guardsmen on the May 1943 Transfer List and those whose
Personalbogen confirmed their arrival in Trawniki on April 7, 1943. As stated
above, Dr. Tuchel was able to locate some Personalbogen for guardsmen who had
arrived at Trawniki on April 7, 1943. Almost all of those guardsmen were
included on the May 1943 Transfer List.
[84] The fourth internal
consistency is that Dr. Tuchel testified that the name and signature on the
list was that of Rudolph Heinze, the Commandante of the Trawniki training camp
at this time.
[85] In sum, the May 1943
Transfer List establishes that Guardsman Skomatschuk, Registration No. 3321,
was transferred from the Trawniki training camp to the Poniatowa labour camp on
or about May 25, 1943.
(4) Transfer to Trawniki
[86] The second relevant
Transfer List (the November 17, 1943 Transfer List) shows a transfer of about
120 guardsmen from Poniatowa back to Trawniki. Listed at number 82 is
“S k o m a t s c h u k, Jura” with Registration
No. 3321. Because of the identical registration number, I am satisfied that
this was a transfer to Trawniki of the same Guardsman Skomatschuk who had been
sent to Poniatowa on or about May 25, 1943.
[87] Dr. Tuchel testified
that this transfer of approximately 120 guardsmen from Poniatowa to Trawniki on
or about November 17, 1943 is internally consistent with a significant event
that took place at Poniatowa on November 2 and 3, 1943. That event, known as
“Operation Harvest Festival”, is described above and resulted in the murder of
most of the inmates of the camp. The transfer of guardsmen from Poniatowa to
Trawniki, about two weeks after the slaughter, is consistent with that event.
[88] Another sign of
consistency is that Dr. Tuchel also testified that he recognized the signature
of the head of the Commandos at Poniatowa as “Erlinger”.
[89] As noted above, in
September 1943, the training camp and the labour camps that were associated
with Trawniki, including Poniatowa, became affiliated with a concentration camp
at Lublin, the major city in the
area. From that date, Poniatowa was a concentration camp and the SS Guardsmen
stationed there became concentration camp guards.
[90] I am satisfied that this
Transfer List establishes that Guardsman Skomatschuk was serving as a guard at
Poniatowa as of November 17, 1943 and was transferred from Poniatowa to
Trawniki on or about that date. This transfer list also establishes that
Guardsman Skomatschuk was a guard at Poniatowa during the time that it was a
concentration camp.
(5) Transfer to Sachsenhausen
[91] The third relevant Transfer
List (the November 20, 1943 Transfer List) is dated November 20, 1943. Referred
to at number 21 is “S k o m a t a c h u k, Jura”, registration no. 3321 with
“geb.am [birth date] 21.2.21 in Schabie, Kolomea”. This Transfer List shows
that, three days after the guardsmen listed on the November 17, 1943 Transfer
List were transferred back to Trawniki from Poniatowa, these guardsmen were
sent to Sachsenhausen, near Berlin, Germany.
[92] This transfer is
consistent with Dr. Tuchel’s evidence that, beginning in 1943, Trawniki men
were exchanged with German guardsmen from concentration camps within Germany itself (discussed above
beginning at para. 65). As Dr. Tuchel testified, once the guardsmen left the
Trawniki camp system for duty in the German Reich, records were kept by name,
birth date and place of birth. The Personalbogen for these guards would also
have been moved to Sachsenhausen. As we now know from Dr. Tuchel’s evidence
(and as referred to above at para. 60), the only reason that we have a copy of this
Transfer List is that a copy was retained in the Trawniki records. While much
of the documentation in concentration camps in the German Reich was destroyed
by the camps’ authorities in anticipation of the arrival of the allied forces,
many documents at Trawniki were seized by the Russians upon the camp’s
liberation.
[93] This November 20, 1943
Transfer List also describes the men listed therein as having been recruited
from the Lublin and Galicia (also referred to as Kolomea) area, some seven and
a half months earlier as volunteers. As translated, the notation on the list
states that:
The
above mentioned men are volunteers from the districts of Lublin and Galicia and [?] recruits who were mustered,
called up and trained by the local office.
[94] On the basis of this
evidence, I am satisfied that Guardsman Skomatschuk was transferred from
Trawniki to the concentration camp at Sachsenhausen on or about November 23,
1943.
(6) Transfer to Mauthausen
Concentration Camp
[95] The Minister presented
no further Transfer Lists but submitted that the evidence supports a conclusion
that Guardsman Skomatchuk was transferred from Sachsenhausen to the
concentration camp at Mauthausen in Austria.
[96] The research of Dr.
Tuchel into the November 20, 1943 transfer of guardsmen to Sachsenhausen is
described in his Report at 93 -109. He testified as to the circumstances of the
transfer and was the subject of cross examination. In summary form, his
evidence is as follows:
- Sachsenhausen was a “transit station”,
meaning that the guards were sent to other camps from this location;
- Of the 224 guardsmen who were sent to
Sachsenhausen from Trawniki (in two transfers, one of which was the
November 20, 1943 transfer), most were transferred to other camps; and
- A review of 43 surviving Personalbogen
demonstrates that 34 of those 43 Trawniki men were sent to the Munthausen
concentration camp or to Gusen, a satellite camp of Munthausen in the
weeks after their transfer to Sachsenhausen.
[97] In light of this
evidence, Dr. Tuchel expressed his opinion that:
It
is highly probable that [Guardsman Skomatschuk] went together with other men
from Trawniki, that he was sent to the Mauthausen concentration camp.
[98] The opinion of Dr.
Tuchel does not, in my view, establish conclusively that Guardsman Skomatschuk
was sent to Mauthausen or Gusen. Nevertheless, a transfer to Mauthausen is
plausible and supported by the evidence presented by Dr. Tuchel. While not, on
its own, persuasive, the evidence related to the movement of Trawniki guardsmen
to these camps may assist me in coming to an overall conclusion with respect to
the Defendant.
(7) Conclusion
[99] Upon careful review of
the evidence and the testimony of Dr. Tuchel, I am satisfied, on a balance of
probabilities, that there was a Guardsman Jura Skomatschuk, Registration No.
3321, who:
(a) was from the Kolomea
district of Ukraine;
(b) trained as an SS
Guardsman at the SS Trawniki training camp, commencing in April 1943;
(c) was deployed as a guard
at the Poniatowa Labour Camp from May 1943, which camp became a concentration
camp in September 1943;
(d) served as a
concentration camp guard at Poniatowa for at least some time prior to November
17, 1943 when he was transferred back to Trawniki; and
(e) was transferred to
Sachsenhausen concentration camp on or about November 20, 1943.
[100] At this point in my
analysis, I have insufficient evidence to establish that Guardsman Skomatchuk
was transferred to Mauthausen. Nevertheless, such a transfer is plausible and
may be supported by other evidence.
B.
Identity of Guardsman Skomatschuk
[101] My
finding that there was a Guardsman Skomatschuk who trained at the SS Trawniki
Training Camp and served as a concentration camp guard does not dispose of this
inquiry. The next question is whether this is the same individual who is now
the Defendant in these proceedings.
[102] As
a general observation, I would note that the record shows different spellings
of the surname “Skomatchuk”. Even documents produced by the Defendant provide a
variation on the spelling; for example, “Skomaczuk”. I am satisfied that these
differences can be explained by the translation of the name from Cyrillic
writing to either English or German. Phonetically, “Skomatchuk”, “Skomatschuk”,
“Skomachuk” and “Skomaczuk” are identical; use of a different spelling does not
necessarily indicate a different person.
(1) Birth Record
[103] I will begin with an
examination of the evidence related to Mr. Skomatchuk’s birth. There is
agreement that Mr. Skomatchuk was born February 26, 1921 in or near Zhabye, Poland. This region of
Poland is now part of Ukraine. Mr. Skomatchuk
produced no documents related to his birth, although it was open to him to do
so.
[104] The Minister produced a
document claiming to be a Birth Record. This Birth Record, as translated,
contains the following information.
Surname SKOMACHUK
First name YURIY
Birth date 26 February
1921
Birth place town
(village) village of I’ltsi
District
Verkhovins’kyi
Region
(country) Ivano-Frankivs’ka
Information on father Surname SKOMACHUK
First
name IVAN
Patronymic ILLICH
Information on mother Surname SKOMACHUK
/née Stefurak
First
name EVDOKIYA
Patronymic LUK”YANIVNA
[105] This Birth Record was
produced as a certified true copy, signed by P. Rashkovs’ka, and issued from
the District Justice Directorate in the region of Ivano-Frankivs’k, Register
Office, Ukrainian Ministry of Justice. I have no reason to doubt its
authenticity or the truth of its contents. The question, of course, is whether
this document is the birth record of Mr. Skomatchuk.
[106] Some of the information
contained in this birth record matches that contained in other documents before
me. One such document referred to by the Minister was issued by the Municipal
Authority of the City of Wels, Austria some time in 1946. Mr. Skomatchuk
acknowledges being in this area after the end of World War II. On this
document, as translated, Mr. Skomatchuk’s father is identified as “Ivan” and
his mother as “Jodnha”, maiden name as “Stefirak”. While the mother’s first
name appears to be different, the other names are the same (subject to spelling
variations that can be accounted for by the translation from Cyrillic writing).
This document shows a birth date of February 26, 1921 and describes the town/city
of his birth as Kolomeja in the district of Kosin in Ukraine.
[107] One other document
(Exhibit D-3), dated March 3, 1948, refers to Mr. Skomatchuk’s parents as
“Ivan” and “Jawdoka”, to his place of birth as “Zabje” and to his date of birth
as February 26, 1921.
[108] References to Mr.
Skomatchuk’s date and place of birth are also contained in a Landing Document
completed upon Mr. Skomatchuk’s arrival in the city of Quebec on May 26, 1952.
In this document, Mr. Skomatchuk identifies his country and place of birth as “Ukraine, Zarje” and his date of
birth as February 26, 1921. Mr. Skomatchuk’s citizenship application, dated
June 13, 1957, also identifies him as being born in “Zabje, Ukraine” on February 26, 1921.
[109] A review of the
geography associated with this area of Ukraine shows that places often carry more than one
name. Further complications arise due to the variations of spellings. For
example, Kolomeja referred to above may be spelled as Kolomyia, Kolomyja,
Kolomea or Colomeea. The region of Ivano-Frankivs’ka, in which all of the
relevant places are located, is part of an area that is historically known as Galicia. The towns of I’ltsi
(also known as Il’tsya, Il’ci) and Zabje (also referred to as Zarje, Zhabye,
Zabie and Schabje) are two small villages in the district of Verkhovyna in the
region of Ivano-Frankivs’ka, within a few kilometers of each other. The
district of Verkhovyna also contains a city (or “urban village”) named
Verkhovyna. Overall, the district is also known as Kolomea.
[110] The Minister submits
that no other individuals with the name of Jura Skomatchuk were born in this
area in 1921. In support of this proposition, the Minister refers to
correspondence with Ukrainian officials. When asked about the birth records of
“Skomatchuk”, the response from the Senior Justice Counsellor, Deputy Oblast
Procurator of Ivano-Frankivs’k Oblast, dated September 28, 2004 was that:
According
to data supplied by the Civil Status Records Department of Verkhovyna Raion
Justice Administration, there is no record of a birth of a Citizen JURII
SKOMATCHUK in February 1921 in the village of Zha’ye. However, there is a record of
a Citizen YURII IVANOVYCH SKOMACHUK born February 26, 1921 in the village of Il’tsi, to parents Ivan Illich Skomachuk and Yevdkiya Luk’yanivna
[Skomachuk].
[111] A letter, dated March
25, 2005, from the Ministry of Justice of Ukraine, Verkhovyna Region to
officials in the Minister’s office in Ottawa, was sent in response to a request
from the Minister’s office that a search be made of any other individuals who
were born in this area in the year 1921. As translated, the relevant portions
of the response are as follows:
According
to the data at the Civil Registry Office of the Verkhovyna District’s
Department of Justice, there is no birth record for the citizen Yuriy Skomachuk
of the village of Zhabye (Urban Village of Verkhovyna)
in 1921.
However,
the Civil Registry Office of the Verkhovyna District’s Department of Justice
does possess a birth record for a number of citizens with the surname
Skomachuk, with other given names, registered in the village of Iltsi in Verkhovyna District . . .
[112] The name, date of birth
and patronymic, Ivanovich, match those set out in other documents before me.
The only difference appears to be the place of birth. While the birth records
for the District do not show anyone with the name of Skomatchuk born in Zhabye
in 1921, the records do show that four persons with the surname Skomachuk were
born in Iltsi. The fourth entry is for:
Skomachuk, Yuriy Ivanovych,
26 February 1921
[113] With respect to the
registration at a different village from that later identified by Mr.
Skomatchuk, I note that the two villages are located in the same region within
a few kilometers of each other. Further, the evidence is that Mr. Skomatchuk
lived on a farm in the region, quite likely not within the borders of a town or
village. It is entirely plausible that his parents registered his birth in
Iltsi rather than Zhabje. This is supported by the information from the Ukrainian
officials that there was no Skomatchuk or Skomachuk birth registered in Zhabje.
Unless his birth was not registered (which was not suggested by Mr.
Skomatchuk), the registration in Iltsi of “Skomachuk, Yiriy Ivanovych” is
logically that of Mr. Skomatchuk.
[114] There is one other
apparent inconsistency in the documentation, that being the mother’s first
name. The Birth Record lists the first name, as translated, as “Evdokiya”. One
other reference to Mr. Skomatchuk’s mother is contained in the document issued
in 1946 by the Municipality of Wels; in that
document, the mother’s first name is translated from the German as “Jodnha”.
The maiden name is almost identical. The different first name could be
accounted for by translation from Cyrillic to German to English. It is also
possible that Mr. Skomatchuk’s mother had more than one first name. In the only
other document that make mention of his parents’ names, a 1952 document, Mr.
Skomatchuk’s mother was listed as “Jawdoka”, a first name much closer phonetically
to “Evdokiya”. I do not assign much weight to the different first name; it
certainly does not establish that the person born Yuriy Skomachuk is a
different person from the Defendant in these proceedings.
[115] In my view, on the basis
of this evidence, it is inherently probable that Jura Skomatchuk is the same
person as the Yuriy Skomachuk described in the Birth Record. I am satisfied
that, on a balance of probabilities, the information set out on the Birth
Record accurately reflects the circumstances of the birth of Mr. Skomatchuk,
the Defendant in these proceedings.
(2) Links between Mr. Skomatchuk and
Guardsman Skomatschuk
[116] Having established the
particulars concerning the Defendant’s birth, I turn to the evidence that
arguably links the Defendant to Guardsman Skomatschuk.
[117] The first and most
obvious link is the name. Subject to a minor spelling variation, the two names
of “Jura Skomatchuk” and “Jura Skomatschuk” are identical.
[118] The place of birth is
also the same. On the November 20, 1943 Transfer List, Guardsman Skomatschuk’s
birth place is set out as “Schabie, Kolomea”. The Agreed Statement of Facts set
out the Defendant’s birth place as “Zabje (Kolomea), Poland”. Mr. Skomatchuk did
not dispute that “Schabie” and “Zabje” are the same place. The spelling
differences can be accounted for by the fact that the place name was translated
from Cyrillic writing into either German or English.
[119] The only recorded
difference between Guardsman Skomatschuk and the Defendant is the date of
birth. On the November 20, 1943 Transfer List, the date of birth is recorded as
February 21, 1921. With this exception, the evidence is consistent that his
birth date is February 26, 1921, including on the Birth Record referred to
above. Does this five day difference on the Transfer List lead to a conclusion
that Guardsman Skomatschuk may not be the Defendant? In the absence of other
evidence related to this issue, the difference might be critical. However,
there is evidence before me that leads me to conclude that the different date
on the Transfer List is likely not material. The same November 20, 1943
Transfer List that sets out his birth date as February 21, 1921 also sets out
Guardsman Skomatschuk’s place of birth as Schabie, Kolomea. As noted above, the
evidence, from the Office of the Procurator of Ukraine, is that there were no
other persons with the name Jura Skomatchuk or Skomachuk born in that area in
1921. It follows that the date of February 21, 1943 was most likely entered
onto the Transfer List in error.
[120] Without anything
further, it is a reasonable conclusion that the two individuals are the same.
However, this conclusion must not just be reasonable; it must be more likely
than not.
[121] There has been further
evidence presented that addresses this issue. Some of that evidence provides
support to the identity of Mr. Skomatchuk as the Trawniki guardsman. I
acknowledge that, if considered in isolation, no single piece of this evidence
would be determinative. Nevertheless, the evidence must be considered as a
whole to determine whether the story that it tells is inherently probable.
Further, it is important to examine the evidence to see whether it is
consistent or whether it throws doubt on factual findings. If consistent, it
may help to increase the level of probability or plausibility. If inconsistent
or contradictory, the probability is lessened.
[122] Dr. Tuchel’s evidence,
well supported by the documentary evidence, is that Guardsman Skomatschuk
arrived at the Trawniki Training Camp on April 7, 1943 with a group of recruits
from the Kolomea or Galicia district. A further reference to the Kolomea
district is contained in the November 20, 1943 Transfer List where the men are
described as “volunteers from the districts of Lublin and Galicia”. We know that the region of Kolomea is also
referred to as “Galicia”. This reference to Galicia is consistent with the
timing of Guardsman Skomatschuk’s arrival at the camp.
[123] We also know that the
Defendant was in Zhabje in February 1943. Mr. Skomatchuk presented into
evidence a document dated February 5, 1943 by the Ukrainian Aid Committee in Kolomea,
delegation in Zhabye. In this “Attestation”, the signer acknowledges that
“Skomachuk Jura” born in 1921 and residing in the “Kolomea Distrikt Galicia” is Aryan, of
non-Jewish ethnic origin and belongs to the Ukrainian ethnic group. It is
reasonable to infer that Mr. Skomatchuk was in this area in February 1943. This
is consistent with the Minister’s submission that he arrived in Trawniki from this
region in April 1943.
[124] Further, the evidence is
undisputed that Mr. Skomatchuk was at or near Wels, Austria within days of the end
of the war. Mr. Skomatchuk presented an Employment Booklet issued November 27,
1946 to “Jura Skomaczuk” by the Employment Office at Wels. Mr. Skomatchuk’s
employer signed this document, acknowledging that Mr. Skomatchuk had worked for
this employer in Wels since November 27,
1946. The Minister presented into evidence a document issued by the Municipal
Authority of the City of Wels some time in 1946. That
document notes that Mr. Skomatchuk was registered as being in Ebensee from May
14, 1945 to November 11, 1945, on which day he moved to Wels. The document also
indicates that Mr. Skomatchuk had come to Ebensee from Puchberg. A further
document entered into the record is a confirmation issued April 25, 2002 from
the Upper Austria Regional Health Insurance Plan. This document confirms that
Jura Skomatchuk, born February 26, 1921, was insured from May 28, 1945 to
November 22, 1946 during his employment as a farm labourer by Mr. H.M. Geusau,
Puchberg. In total, the evidence is clear that Mr. Skomatchuk was in the
vicinity of Puchberg or Ebensee as of May 14, 1945.
[125] To
place the importance of this evidence into context, I refer to Dr. Tuchel’s
evidence. He testified that American troops liberated the Mauthausen and Gusen
camps on May 6 and 7, 1945. Ebensee was a satellite camp of Mauthausen; and
Puchsberg was only 50 kilometres from Mauthausen. Thus, some few days after the
liberation of these camps, Mr. Skomatchuk was in Puchsberg, very close to the
Mauthausen camp.
[126] There
are two different explanations put forward for the location of Mr. Skomatchuk
at this time. The Minister asserts that he was in this area at this time
because, up to May 6, 1945, he was an SS Guardsman at Mauthausen or one of its
satellite camps. Mr. Skomatchuk asserts that, from March 1943, he was
conscripted by the Germans to provide forced labour. After the war, he alleges
that he was able to obtain farm work near Wels, Austria. While both
stories have an inherent plausibility, only one can be true.
[127] As
noted earlier, Mr. Skomatchuk did not appear as a witness to speak to the
assertions made in his Statement of Defence. In that document, Mr. Skomatchuk
states that:
For some periods of time during the years
1943 to 1945, he was conscripted by German occupying forces to provide forced
labour. The Defendant states that he was forcibly moved to and from various
locations. He has no knowledge at this time as to his exact whereabouts
during those years. [emphasis added]
[128] He
put forward only one piece of evidence in support of this allegation in his
Statement of Defence. That evidence (Ex. D-3) is a document, dated August 1,
1952 which document has been filed subject to an order of confidentiality. The
experiences set out in that document do not accord with Mr. Skomatchuk’s
version of events set out in his Statement of Defence. While he sets out, in
the Statement of Defence, that he had no knowledge of his exact whereabouts, in
the 1952 document it is clearly set out that, at that time, Mr. Skomatchuk
claimed to have worked on a farm near Wels, Austria for 14 months.
[129] There
is a significant difference between not knowing your whereabouts and working on
a farm in an identified location for 14 months. Given that this is the only
evidence related to Mr. Skomatchuk’s version of his wartime activities, this
internal inconsistency lessens the credibility of Mr. Skomatchuk’s claim.
[130] Even
if I could accept this change of story as one related to the passage of time, I
have other problems with the contents of Exhibit D-3. Mr. Skomatchuk provided
no evidence as to the background of or reason for the document. In my view, it
appears to set out a story as told by Mr. Skomatchuk to an official. It does
not refer to any other documentation that would or could support the claim of
being a farm labourer. The document does not provide independent corroboration
of the claims or evidence that any investigation by a third party was carried
out. Given my concerns with this document, I do not find that it is evidence of
the truth of its contents. The document, absent anything further, adds little
to Mr. Skomatchuk’s unsupported assertions as to his wartime activities.
[131] In
contrast, the Minister’s version of events has evidentiary support. As noted,
there is no explicit evidence linking Guardsman Skomatschuk with the Mauthausen
concentration camp; no Transfer List was found for the transfer of Guardsman
Skomatchuk from Sachsenhausen to Mauthausen. However, we do have the credible,
meticulous evidence of Dr. Tuchel that the majority of the Trawniki guardsmen
that were transferred to Sachsenhausen were transported to Mauthausen or one of
its satellites at Gusen. This would provide a reasonable explanation for
Guardsman Skomatschuk being in this area immediately after the liberation of
the concentration camp; it lends further support for the Minister’s overall
claims. Viewed together with the undisputed location of Jura Skomatchuk in Wels, immediately
following the liberation of the concentration camp nearby, the evidence
presented is persuasive.
[132] It is not strictly necessary that the evidence establish a connection
between the Defendant and the Mauthausen concentration camp. Even
absent compelling, direct evidence of a transfer from Sachsenhausen to
Mauthausen, it is not inconceivable that Guardsman Skomatschuk made his way to Austria from Sachsenhausen, Germany at
or near the end of the war.
[133] One
final thought on the arguments of Mr. Skomatchuk. With the references to
Guardsman Jura Skomatschuk on the Transfer Lists, I am satisfied that such a
person existed. The Lists were not fabricated with fictional names. The
evidence allows me, with some certainty, to trace the movements of this
individual. If I accept Mr. Skomatchuk’s version of his wartime experiences, I
would be accepting that there was more than one person with a name almost
identical to Mr. Skomatchuk; who was born in the same month and year; who was
born in the same village; and who left that village at the same time in 1943 as
Guardsman Skomatschuk. However, we know, from the evidence, that there was only
one person with a name like this was born in that month, in that year and in
that region.
[134] In
sum, I am unable to accept Mr. Skomatchuk’s claims as to his activities during
the period 1943 to 1945. On the other hand, the Minister has presented credible
evidence that links the activities of Guardsman Skomatschuk with the Defendant.
C.
Conclusion
[135] The
evidence before me satisfies the burden born by the Minister in this case. I am
persuaded that it is more likely than not that Mr. Skomatchuk was Guardsman
Skomatschuk, Registration No. 3321. That is, Mr. Skomatchuk was an SS Guardsman
who:
(a) trained at
the SS Trawniki Training Camp, commencing in April 1943;
(b) was deployed
as a guard to the Poniatowa Labour Camp in May 1943, which labour camp became a
concentration camp in September 1943;
(c) was
integrated into the SS
Death’s Head Guard Units as of 1943;
(d) was an SS Guardsman at Poniatowa
concentration camp during
Operation Harvest Festival in November 1943, when thousands of Jews were
slaughtered; and
(e) was a
concentration camp guard in one or both of the Sachsenhausen concentration camp
in Germany and the
Mauthausen concentration camp in Austria, Germany from October
7, 1943.
VI. Immigration of Mr. Skomatchuk to Canada
[136] Mr.
Skomatchuk did not come directly to Canada from Austria. Rather, he
came first to the United Kingdom, in March 1948, where he was employed as a
labourer. Some time in 1952, he applied to come to Canada as a landed
immigrant. The question of the processing of his application to come to Canada is of
critical concern to these proceedings.
[137] I
have concluded that Mr. Skomatchuk, on a balance of probabilities, was a
concentration camp guard. The Minister argues that this fact alone would have
made Mr. Skomatchuk inadmissible to Canada in 1952. In brief, the
Minister’s submissions are that SS concentration camp guards were an absolute
prohibited class. According to Dr. Avery’s evidence, such persons were
considered the most “odious” type of person with respect to an examination of
their war time activities. Between 1945 and 1955, the Minister asserts that there
was an absolute prohibition on their entry into Canada, with no
discretion as to whether or not an RCMP officer could consider them to be
admissible to the country based on either coercion, some sort of compassionate
ground or on the fact that they may have been of lower rank. Accordingly, the
Minister’s position is that Mr. Skomatchuk had to have misrepresented his World
War II activities from immigration officials in order to gain entry to Canada in 1952.
[138] The
parties agree that Mr. Skomatchuk was interviewed by an RCMP Officer in
Liverpool prior to coming to Canada. That Officer was Mitchell G. Owens, who
appeared as a witness for the Minister in these proceedings. Although Mr. Owens
does not remember specifically interviewing Mr. Skomatchuk, it is agreed that
he did do so.
[139] There
are a number of subsidiary issues involved in this crucial determination:
- How had Canada’s
immigration policy evolved to the point of time in question?
- In 1952, was
Canada’s policy one that excluded concentration camp guards from admission
to Canada?
- In 1952, in the United
Kingdom,
would Mr. Skomatchuk have been asked by Canadian officials about his
wartime activities?
- In 1952, in the United
Kingdom,
did Canadian security screening officials, including Mr. Owens, follow the
policy of exclusion of concentration camp guards?
A.
Evolution of Canada’s Immigration Policy
[140] To
assist this Court, the Minister filed 1,834 documents, consisting of documents
and communications at every level of Government. These included: Cabinet
Directives; Orders-in-Council; Minutes of the Security Panel (a specially
formed inter-departmental committee reporting to the Cabinet); internal
communications within, from and to the relevant government departments; and memoranda
and other communications to and from the RCMP administration and officers in
the field. In the following sections of these reasons, I refer to only a few of
these documents to illustrate the points being made or to support the evidence
of Dr. Avery.
[141] The
Minister also presented Dr. Donald Avery, an historian, to speak to immigration
policy and practices in Canada. He was qualified as an expert in the
following areas:
- pre-World War II
and post-war immigration policies, and the regulations and Orders in
Council affecting those policies;
- Canada's
post-war immigration policy systems and its implementation;
- the immigration
selection process, including the role of the Royal Canadian Mounted Police
(RCMP) in security clearing and screening prior to, during and after World
War II; and
- the interaction
between Canada and European refugee organizations, including the United
Nations Relief and Rehabilitation Administration (UNRRA), the
Intergovernmental Committee on Refugees, the Preparatory Commission for
the International Refugee Organization, and the International Refugee
Organization (IRO).
[142] Dr.
Avery prepared a report entitled “A Study of Canadian Immigration Policy and
Security Screening, 1945-1956: A Background Report Prepared for the Crimes
Against Humanity and War Crimes Section, Department of Justice (Josef
Skomatchuk Case)”, dated March 2006 (the Avery Report). This report was filed
as an exhibit in these proceedings.
[143] Mr.
Skomatchuk did not dispute any of Dr. Avery’s testimony; the words of his counsel
were clear and unequivocal on that point when he stated, “I am going to ask
that you accept his evidence at the end of the day without reservation” (emphasis
added). Mr. Skomatchuk presented no evidence or witnesses to speak to
immigration policy or practices.
[144] As
evidenced by a number of documents provided by the Minister and referred to by
Dr. Avery, Canada’s policy on
immigration prior to World War II was simple. Beginning in 1931, it was in
effect a policy of exclusion. Only a very narrow class of foreign nationals
were permitted to come to Canada (Order-in-Council P.C. 695, March 21,
1931).
[145] The
end of World War II brought about changed circumstances. Canada was called
upon to accept some of the displaced persons and, beginning in 1946, responded
to that need. A review of the gradual revision to Canada’s policy
demonstrates, however, that the relaxation of the policy of exclusion was
carried out only in a tightly controlled fashion. One early example of the
opening up of admissibility involved family members of Canadians under the
“Close Relative Scheme”. Another was the “Bulk Labour Scheme” intended to bring
persons into Canada to fill
labour shortages.
[146] Thus,
I can say, with confidence, that the situation in 1952 was one of controlled
admissibility of displaced persons. Only after agreement, at the highest levels
of Government, were particular classes of persons considered for immigration to
Canada. Throughout
this gradual opening of Canada’s borders, two themes are consistent and
unchanging. The first is that the RCMP officers in the field were responsible
for security screening of displaced persons and were carrying out this function
through individual screening interviews. The second is that certain classes of
persons were not to be admitted to Canada. I will proceed to
consider each of these.
B.
Role of RCMP
[147] The
role of the RCMP in the screening of Mr. Skomatchuk must be determined. I had
the benefit of hearing testimony from Mr. Mitch Owens, an RCMP Officer who
interviewed immigrants who came through Liverpool from 1952 to
1953. I also have numerous government documents from the period, relating to
the Canadian immigration process in Europe from 1946 to 1955. Finally, I also
had the benefit of hearing testimony and reading the report of one of the
expert witnesses, Dr. Avery.
[148] Generally,
European Displaced Persons, including those residing in the United Kingdom,
such as Mr. Skomatchuk, were cleared by an immigration team before being issued
a visa. This team included an immigration officer, a medical officer, and an
RCMP Screening Officer. The RCMP Officer was exclusively responsible for
investigating each potential immigrant and clearing or rejecting that person on
security grounds. A rejection on security grounds terminated an immigrant’s
visa application. RCMP Officers did not provide the reasons for rejection to
either the other members of the immigration team or the potential immigrant.
Additionally, their decisions were final and could not be appealed or reviewed
(this is in contrast to the immigration officer’s decision, which could be
appealed).
[149] Dr.
Avery testified that, after the war, the opening up of immigration was always
subject to the proviso that only those granted a clearance from the RCMP would
be eligible for landing to Canada. This is evidenced by a Memorandum to
Cabinet, dated October 15, 1945, from J. Allison Glen, Minister of the
Department of Mines and Resources (then responsible for immigration) where he
stated that refugees may be admitted to Canada “subject to the proviso that
only those granted a clearance from the Royal Canadian Mounted Police be
eligible for landing within the meaning of the Immigration Act . . .”
[150] Throughout
the documents, the continued role of the RCMP in conducting the required
security screening was never in doubt (for example, see the Confidential
Memorandum dated December 27, 1946, from Assistant Commissioner Nicholson of
the RCMP to S/Sgt W.W. Hinton, Canada House, London; and Cabinet Directive,
Circular No. 14, “Rejection of Immigrants on Security Grounds”, October 28,
1949).
[151] The
method of investigation employed by RCMP Security Officers put primary emphasis
on the personal interview of the potential immigrant. Security Officers also
made use of any documents available from Europe; however, it was difficult or
impossible to obtain reliable and complete records from the war years (this was
cited as the main reason for the importance of personal interviews in several
reports; for example, the Report from Sgt. Murray to D.C.I., February 26, 1947;
and the Report from Sgt. Murray, March 12, 1947). RCMP in the UK were also
required to clear immigrants through British intelligence sources (Instructions
from RCMP Commissioner Wood to Sgt. Hinton, October 23, 1946; Memorandum from
Director Joliffe to RCMP Inspector Parsons, October 23, 1946; Memorandum titled
“Displaced Personnel in Germany”, October 1946). Additionally, the RCMP
typically established local contacts with the authorities in their regions to check
possible criminal backgrounds.
[152] By
1947, security grounds began to develop in a nuanced fashion, putting further
emphasis on the personal interview as an essential investigation tool for
screening Displaced Persons. For example, Order-in-Council P.C. 4850 (November
6, 1947) required RCMP Officers to distinguish between persons who has served
in the German Army voluntarily or under compulsion.
[153] The evidence shows that, as time marched forward, the security
screening process retained the importance of the interview as the core of a
security investigation that became more streamlined and efficient, and
developed a more comprehensive approach by incorporating numerous sources of
information (see for instance Memorandum of Inspector Kelly to G.R. Benoit,
September 1953; and Report by Kelly to the Special Branch, June 22, 1954).
[154] The
evidence of Mr. Owens confirms that he interviewed each potential immigrant
coming through the Liverpool office during the time he was there. He
indicated that the interview played a key role in his decision, and that his
decision was final, and could not be appealed. He never gave reasons for his
decision to the immigration officer and destroyed all his records before leaving
his position in Liverpool.
C.
Grounds for Rejection
[155] From
the inception of the overseas screening system in early 1947, RCMP Security
Officers received a mixture of verbal and written instructions from
headquarters, in combination with occasional guidelines issued by Cabinet or
through Orders-in-Council. Although immigration policy evolved continuously
after the war, it appears that the security grounds for rejection did not
undergo any significant change between 1947 and 1950. An exact determination of
those grounds has been difficult, because they were rarely recorded in written
form, except in the most general terms. This practice reflected the strong
concerns of the RCMP that the grounds for rejection should not be known to
potential immigrants. The RCMP were opposed to informing rejected immigrants
that they had been screened out on security grounds and they long resisted
distributing a list to the Immigration Branch (see for example a memorandum by
RCMP Assistant Commissioner Nicholson to the RCMP Special Branch, dated July
22, 1948).
[156] However,
at least one written list of rejection criteria was prepared by RCMP
Headquarters, in consultation with the Immigration Branch, and sent to officers
in Europe. Titled “Screening of Applicants for Admission to Canada”, and dated
November 20, 1948, the list included the following “Prohibited Groups” that:
…if disclosed during interrogation or
investigation, will be considered as rendering the subject unsuitable for
admission:
[…]
(b) Member of SS or German Wehrmacht.
Found to bear mark of SS Blood Group (NON Germans).
(c) Member of Nazi Party.
[…]
(h) Evasive and untruthful under
interrogation.
(i) Failure to produce recognizable and
acceptable documents at the time of entry and residence in Germany.
(j) False presentation; use of false or
fictitious name.
(k) Collaborators presently residing in
previously occupied territory.
[157] Overall,
the objective was to deny admission to any person who, “from their known
history and background, would be unlikely to adapt themselves to the Canadian
way of life and our system of Democratic government”. These specific words were
contained in “Orders for Personnel Employed Abroad on Visa Control Duties”,
sent from S.T. Wood, Commissioner, to S/Sergeant Hinton on October 23, 1946.
These Orders once again confirmed the role of the RCMP Screening Officer in
assessing admissibility.
[158] An
awareness of the role of concentration camp guards arose during the development
of Canada’s postwar
security guidelines. One of the first direct references in the documentary
evidence is contained in a Paper entitled “The Nazi Party, its Formation and
Affiliated Organizations”. This paper was prepared by the Criminal
Investigations Section of the RCMP and provided to A.L. Jolliffe, Director of
Immigration of the Department of Mines & Resources, and forwarded to him
under cover letter dated July 25, 1946. In that paper, the SS
Totenkopf-Verbande (Death’s Head Unit) was described in the following terms:
The SS Totenkopf-Verbande was a special
division of the Waffen SS whose duties were confined to the guarding of
concentration camps and as police troops in the Occupied Territories. Members of this organization were of a
particularly loathsome and brutal type.
[159] Canadian
policy was strongly influenced from the beginning by Allied Control Authority
Coordinating Committee Directive No. 38, dated October 14, 1946 and entitled
“Arrest and Punishment of War Criminals, Nazis and Militarists and the
Internment, Control and Surveillance of Potentially Dangerous Germans”. The
Allied Control Authority was the military governing body representing the
Allied Powers who controlled Germany after the war. Their
directives served as policies and regulations for, among other things,
treatment of refugees and displaced persons under the United Nations Relief and
Rehabilitation Association (UNRRA) and International Refugee Organization (IRO)
programs. Under Directive No. 38, war criminals and collaborators were divided
into several categories, including: Major Offenders; Offenders: Militarists;
Profiteers; and others. Of most significance, the Major Offender category
included “Anyone who, in any form whatever, participated in killings, tortures,
or other cruelties in a concentration camp, a labour camp, or a medical
institution or asylum”; and “Anyone who, for personal profit or advantage,
actively collaborated with the Gestapo, SD, SS, or similar organizations…”.
[160] A
reference to substantially the same criteria is found in Cabinet Directive No.
14, issued October 28, 1949, which stated:
…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…
[161] In
1950, substantial changes were made to the security grounds by several
Orders-in-Council. P.C. 1606, issued March 29, 1950, removed the blanket ban on
Volksdeutsche (ethnic Germans) and German nationals, and allowed some of these
people in under certain conditions. P.C. 2856, issued June 9, 1950 granted wide
ranging discretion to admit persons who were “suitable” and were not
“undesirable” based on social and cultural factors. P.C. 4364, issued September
14, 1950 removed the ban on enemy nationals specifically from Germany, provided
they could prove opposition to the Nazi government. None of these
Orders-in-Council had the effect of removing the overarching restriction
against individuals described in Allied Directive No. 38.
[162] In
the midst of these Orders, the Immigration Branch issued Circular No. 72, on
May 20, 1950, clarifying the official policy to members of the Wehrmacht and
Waffen-SS (the armed SS), with a mind to German nationals:
Service in the German Armed Forces during
World War II, with the exception of service in the German Waffen-SS, does not
constitute cause for rejection. German nationals, however, who served in the
Waffen-SS or who are known to have been members of the Nazi Party, traitors,
quislings, or guilty of atrocities are to be denied admission or entry.
[163] Having
reviewed the documentary evidence, I am persuaded that it was unlikely that
anyone – either in a policy role or as an RCMP Officer in the field – would
consider a concentration camp guard to be admissible to Canada. As stated by
Dr. Avery,
Certainly anyone who was connected with a
Nazi organization and especially a concentration camp guard would have been
seen as completely inimical to the Canadian way of life and to Canada’s system of democratic
government.
[164] In
a reflection of the growing relaxation towards German nationals and ethnic
Germans, two memoranda discuss removing the rejection of Germans for membership
in the Nazi Party or Waffen-SS, with the caveat of exercising discretion
regarding the circumstances of their wartime activity. Of note, both of these
documents directly reference the terms “minor offenders” and “major offenders”
found in Allied Directive No. 38:
Rejection should not be based on the
simple fact of membership in the Nazi Party or the Waffen S.S. in itself, but
rather on the circumstances of entry and the degree of participation. I would
recommend that the Security Officers be given positive instruction designed to
approve a larger number of minor offenders and to reject only those major offenders
whose voluntary entry and active participation clearly disqualify them as
immigrants to Canada [Memorandum from G. de t. Glazebrook, October 17, 1950;
see also Memorandum from Fortier to the Under-Secretary of State for External
Affairs, October 25, 1950].
[165] These
documents confirm the ongoing use of the criteria set out in Allied Directive
No. 38 and further emphasize the importance of personal interviews in which
Security Officers specifically examine the wartime activities of prospective immigrants.
From this point on, there are numerous references in the Canadian government
documents to “minor offenders” and “major offenders” and Allied Directive No.
38.
[166] Documents
from 1950 to 1952 reference degrees of membership in German military
organizations with more precision than at earlier dates, presumably as a result
of the shifting rejection criteria that focussed more on culpability and
responsibility rather than mere membership. In a Memorandum from RCMP Inspector
MacNeil to Supt. McLellan, dated November 11, 1950, MacNeil gave the following
instructions:
The case of members of the Waffen S.S.,
General S.S., Abwehr, S.D. and Gestapo is
altogether different [from membership in the Nazi Party]. With regard to
Germans who were members of these units, membership was entirely voluntary and
it is felt that their membership there-in should be sufficient reason for
rejection.
Membership in the token Waffen S.S.
regiments formed in the occupied countries was not confined to volunteers.
Individual cases would have to be judged separately on their own merits as
there would be exceptions worthy of consideration.
[167] On
July 5, 1951, the Security Panel indicated that mere membership in the
Waffen-SS would not be a cause for rejection, without investigation of whether
service was voluntary and whether the person had joined prior to January 1,
1943 (Memorandum from Fortier to E.F. Gaskell, Secretary of the Security Panel,
May 23, 1951). At this time a dispute also arose between the Immigration Branch
and the RCMP regarding the rejection of “collaborators”; RCMP Inspector
McClellan responded by stating:
… it has been the policy, where any
doubt exists, to resolve that doubt in the favour of Canada, and as our sources of
information must of necessity be very meagre, it is necessary to develop as
much information as possible during personal interviews [Memorandum to Fortier,
December 11, 1951; emphasis added].
[168] During
1952 and 1953 – around the time period that Mr. Skomatchuk immigrated to Canada
– the RCMP and Canadian government wrestled with suggestions to remove
Waffen-SS and Nazi collaborators from the list of “major offenders”. Chief
Screening Officer Kelly was the primary opponent to these proposed changes
(Memorandum from Inspector Ashley to Kelly, September 10, 1952; and Memorandum
from Kelly to Ashley, November 13, 1952); from 1951 to 1954 he was in charge of
the security screening procedure.
[169] Real
movement for a change in the rejection criteria did not come until 1955. The
Security Panel, in consultation with the RCMP and other departments, removed
the automatic rejection of former members of most of the various Nazi
organizations, requiring that each case be assessed on political and
humanitarian grounds (See Minutes of the 59th Meeting of the
Security Panel, June 29, 1955; Minutes of the 13th meeting of the
Security Sub-Panel, October 18, 1955). Notably, the automatic ban was retained
and affirmed against:
… former members of the Gestapo, concentration
camp guards and persons, who, in the opinion of the examining officer,
would be considered major offenders under Allied Control Council Directive
No. 38.
[170] Although
this final change came after the time that Mr. Skomatchuk would have been
interviewed in Liverpool and admitted to Canada, it shows that, throughout the
relevant time period, an automatic ban was in place against “major offenders”,
as defined in Allied Control Directive No. 38, and that this category included
concentration camp guards.
[171] In
short, there are several references to Directive No. 38 in the Canadian
immigration documents, showing a consistent concern among Canadian government
members and RCMP officials for Nazi war criminals and collaborators. Major
Offenders, as defined by Directive No. 38, were not to be admitted to Canada. Concentration
camp guards were Major Offenders.
[172] While
the policy of exclusion of concentration camp guards appears to be very firmly
rooted in the documentary evidence, the question arises of whether the policy
was implemented in the field. Were prospective immigrants asked about their war
time activities? Would someone who disclosed such a background have been
rejected?
D.
RCMP Security Screening by Mr. Owens
[173] Dr.
Avery was asked whether there was any question in his mind whether, during the
security process, a person would have been asked about his activities during
the war. Speaking as an historian, he responded as follows:
The guidelines were such that it would be
almost inconceivable that those questions about war time activity would not
have been asked. Because we don't have a complete record of all of those
interviews, as a historian, I can't say 100 per cent, but it would be highly
unlikely, extremely unlikely.
[174] This response is
consistent with a number of the filed documents. One example is contained in a
memorandum dated May 10, 1948, from Commissioner Wood to the Deputy Minister,
Immigration Branch, Department of Mines and Resources. In that document,
Commissioner Woods states the following:
We
are interested mainly in obtaining a satisfactory answer to two questions:
first, what were the applicant’s sympathies and activities during the late war,
and second, is he sympathetic to Communism or any other form of subversive
influence opposed to our democratic way of life.
[175] As noted (at para. 138),
the parties agreed that Mr. Mitchell Owens conducted the security screening of
Mr. Skomatchuk. From 1952 to 1953, Mr. Owens was the only RCMP Screening
Officer in Liverpool in the United Kingdom. In this capacity, his testimony was that he
would have interviewed any potential immigrant coming through the Liverpool office in 1952.
Although Mr. Owens does not specifically remember interviewing Mr. Skomatchuk,
it is not disputed that he did so.
[176] Mr.
Owens assisted the Court in his description of how the policies described above
were put into place. Although the documents (and Dr. Avery’s testimony) tend to
support a view that all former concentration camp guards – without exception –
were to be excluded, Mr. Owens’ testimony was not as categorical.
[177] Mr.
Owens testified as to the procedures that he followed during the security
screening. While there were no standard questions or procedures for an
interview, Mr. Owens told us that he would inquire about any military or police
service during the war, if the person “seemed to be eligible” for that service.
He was required to closely scrutinize immigrants with Fascist, Nazi, or
Communist party ties. When asked whether he had specific instructions with
respect to WWII activities:
A. To say that there were
instructions as such, yes, there was a certain ‑‑ for instance,
tattoos of their blood types for the German prisoners, German soldiers and so
on, that was a thing to watch for. If they had any rank at all, I would very
possibly turn them down.
…
Q. Were you aware of any policies or
guidelines that the government had developed in terms of prohibiting certain
groups of people?
A. Yes.
Q. Were you applying those guidelines?
A. Yes. A lot of those organizations, I
don't recall them. For instance, I think about the various groups that were
part of the groups throughout the various countries. Some were on the side of
Germany and some were on the side of Russia
and some were against both. I did know the names at one time. I certainly
cannot remember them now.
[178] Mr. Owens was asked
directly about how he would have dealt with someone who admitted to being a
concentration camp guard.
Q. If someone had told you that they had
trained at an SS camp and then were subsequently transferred to a forced labour
camp, would you have admitted them to Canada?
Would you have security cleared them?
A. I would watch for if the person had any
degree of education, which is probably not the right thing to say, but an
ordinary person, an ordinary country person and so on, you could sense that. I
could tell if they had anything else other than that.
You were aware of that condition,
actually. If there was anybody that came in that had academic background and so
on, and particularly if they didn't have any documents to show that and so on,
I would be very diligent in establishing where they fit.
Q. When you say you would have been very
diligent, what would you have done?
A. I would ask more questions, I guess. I
would have gone more thoroughly to establishing.
Q. If someone had told you that they had
been a concentration camp guard during World War II, what would you have done?
A. The same thing applied actually. If there
was any indicator that they would be in with the German hierarchy and so on, I
would probably turn it down outright as a guard. But if it was an ordinary
individual, ordinary, I would ask more questions.
Q. But if someone told you they were a
concentration camp guard, your evidence is that you would have turned them down
outrightly?
A. Perhaps, yes.
[179] When
asked whether he remembered any person telling him that they had worked in a
death camp, Mr. Owen’s response was:
A. I would be hard put to say that.
Q. But if they had told you that, can you
give us a sense of whether they would have passed stage B or have been
rejected?
A. I would be very suspicious if there was
any suggestion that they were. But nevertheless, you took into account,
particularly I go back to the idea of the education and so on, et cetera. But I
would be more inclined to turn them down than approve them. [Emphasis added.]
[180] Further questioning
established that Mr. Owens would have taken into account the entire record of a
person who admitted to being associated with concentration camp guard duties.
It appears that, in spite of policy directives that might have said otherwise,
he was sensitive to possible mitigating circumstances created by the upheaval
and difficult political situation placed upon individuals during the wartime. For
example, he had some sympathy for the lowest level of guard or for someone who
had not served voluntarily. Mr. Owens stated that he would not be especially
concerned about a young, poorly educated person who might have worked in the
Soviet Army or German labour forces. However, an older individual who had a
direct connection to a concentration camp would be a much greater concern.
[181] Mr. Owens was not able
to recall certain specific documents, such as Allied Control Directive No. 38.
Further, while he did not recall the term “Death’s Head Unit”, he was familiar
with the German name for the unit Totenkopfverbande. He stated that members of
the SS Guard Units, with an identifying tattoo, were to be refused
automatically. He also was not familiar with the term “Trawniki men”.
[182] In summary, Mr. Owens
was a very diligent RCMP Officer. His memory as to certain of the specific
policy directives and relevant documentation appears to have dimmed. He does
not recall interviewing Mr. Skomatchuk. These memory lapses, coming over 50
years after the events, are understandable. Nevertheless, some clear
conclusions can be drawn from Mr. Owens’ testimony:
- He would have asked every prospective
immigrant about his war time activities;
- He would have been very interested in
someone who admitted to being associated with the SS;
- If he had known that a prospective
immigrant was a concentration camp guard, he would have been diligent in
assessing that person’s background and that he would have been “more
inclined” to refuse such a person; and
- In spite of directives and policies to the
contrary, he would have exercised some discretion in certain cases.
[183] However, given that Mr.
Owens did not recall ever interviewing a death camp guard, we cannot establish,
with any certainty, whether Mr. Owens would have rejected Mr. Skomatchuk or
taken his personal circumstances into account.
[184] I turn now to review
what Mr. Skomatchuk told Mr. Owens. Although Mr. Skomatchuk did not testify,
the Minister read in a short portion of his examination for discovery. When
asked about his interview in Liverpool, Mr. Skomatchuk expressed some lack of memory. However, he
did acknowledge certain aspects of his interview:
A. I just remember that only one person
spoke with me about political activities.
Q. And what was that conversation about,
sir?
A. Whether, that was about whether I was
somehow involved in Communist and Communist activities, whether I was involved
with Nazis.
Q. And what did you answer?
A. And my answer was that I didn't have
anything to do with any political parties.
Q. Were you asked by this man what you did
during the war?
A. Oh, yes, where I worked.
Q. And what did you say?
A. Well, I responded to him what I did,
that I worked on trenches and then I worked on the farm.
[185] In
final arguments, counsel for Mr. Skomatchuk expressed the concern with the
Minister’s counsel’s questions on this issue. He suggested that the examining
counsel should have been “fair to the man” and posed more questions. Mr. Skomatchuk
was represented by experienced counsel at the discovery; he could have asked
those further questions. Further, I do not know what additional questions could
have been of assistance. In this read-in, Mr. Skomatchuk, under oath, states
clearly that he told someone who interviewed him about his wartime activities
that “I worked on trenches and then I worked on the farm”. It is unlikely that
he would have changed this answer upon further questioning to include his
experiences as a concentration camp guard. I see nothing improper about this
line of questioning during the discovery. I take this read-in as evidence of
what Mr. Skomatchuk told the RCMP Screening Officer.
E. Officer’s Exercise of
Discretion
[186] There
remains a question of whether, on the facts of this case, Mr. Skomatchuk would
necessarily have been rejected by Mr. Owens, the RCMP Officer who conducted the
security screening. Mr. Skomatchuk argues that Mr. Owens’ testimony establishes
that he would not necessarily have been rejected, even if Mr. Owens had
believed he had been a concentration camp guard.
[187] The
problem with this assertion is that Mr. Skomatchuk never provided the
information to Mr. Owens. In not admitting that he was a concentration camp
guard during the war, Mr. Skomatchuk effectively foreclosed any questioning by
the RCMP Officer regarding the particulars of that background.
[188] The
Supreme Court of Canada, in Canada (Minister
of Manpower and Immigration) v. Brooks [1974] S.C.R. 850, [1973]
S.C.J. No. 112 (QL), addressed this problem. In that decision, the Supreme
Court was dealing with an immigrant to Canada who had not
disclosed certain information during the application process. The provision of
the Immigration Act, 1948 under consideration was s. 19, which provided
that every person who came into Canada “by reason of any false
or misleading information” is “subject to deportation”. Disclosure of the
information would not necessarily have prohibited the landing of the
individual. Nevertheless, the Court stated as follows:
Lest there be any doubt on the matter as
a result of the Board's reasons, I would repudiate any contention or conclusion
that materiality under s. 19(1)(e)(viii) requires that the untruth or the
misleading information in an answer or answers be such as to have concealed an
independent ground of deportation. The untruth or misleading information may
fall short of this and yet have been an inducing factor in admission. Evidence,
as was given in the present case, that certain incorrect answers would have had
no influence in the admission of a person is, of course, relevant to
materiality. But also relevant is whether the untruths or the misleading
answers had the effect of foreclosing or averting further inquiries, even if
those inquiries might not have turned up any independent ground of deportation.
[Emphasis added.]
[189] The
reasoning of the Supreme Court in Brooks has been followed by the
Federal Court in decisions dealing with proceedings of this nature (see, for
example, Bogutin, above at para. 124; Baumgartner, above at para.
139).
[190] The
point is that Canadian officials responsible for the screening of Mr.
Skomatchuk were foreclosed from making further inquiries. It would have been
impossible for Mr. Owens to question Mr. Skomatchuk on how he came to be an SS
Guardsman or what acts he had committed as a concentration camp guard. Whether
Mr. Owens might have exercised some discretion is irrelevant; he never had the
opportunity to do so.
F. Conclusion
[191] In conclusion, there is
no dispute that Mr. Owens, in his role as an RCMP Security or Screening
Officer, interviewed Mr. Skomatchuk and asked him questions about his war time
experiences. We also know, from the sworn testimony of Mr. Skomatchuk, that he
told Mr. Owens that, from 1943 to 1945, he worked on trenches and on a farm.
Mr. Skomatchuk did not tell Mr. Owens about his membership in the SS as a guardsman
at concentration camps. If Mr. Skomatchuk had disclosed his experience as an SS
Guardsman at one or more concentration camps, that disclosure may well have led
to his exclusion from Canada.
VII. Summary of Findings
[192] At
the outset of these reasons, I identified a series of questions. In summary, I
respond to those questions with the following findings, all of which are made
on a balance of probabilities after careful consideration of the evidence:
- An individual named
“Skomatschuk” trained as an SS Guardsman at the SS Trawniki Training Camp
and participated, as a guard, at the Poniatowa Labour Camp, in occupied Poland, and as
a guard at concentration camps in the German Reich.
- Mr. Skomatchuk is
the same Guardsman Skomatschuk referred to in 1.
- Mr. Skomatchuk
concealed his wartime activities from Canadian immigration officials prior
to coming to Canada.
- It follows that Mr.
Skomatchuk gained entry to Canada and subsequent
Canadian citizenship through false representation or fraud or by knowingly
concealing material circumstances.
VIII. Overall Conclusion
[193] In
conclusion, I find, on a balance of probabilities, after carefully scrutinizing
the evidence before me, that, at the time of his immigration to Canada in 1952,
Mr. Skomatchuk falsely represented to Canadian immigration officials that he
had performed forced labour in the German Reich (Austria) from 1943 to 1945. He
knowingly concealed his wartime association with SS Death’s Head Units,
including as a concentration camp guard.
[194] This
conclusion is, in my view, sufficient to dispose of this matter. It is not
necessary to determine whether he was “lawfully admitted” to Canada. However,
for greater certainty, I also find that Mr. Skomatchuk: was not lawfully
admitted to Canada; did not
acquire Canadian domicile; and, was not a person of good character – all of
which are contrary to the Immigration Act, 1948.
[195] For
these reasons, I find that Mr. Skomatchuk was admitted to Canada and obtained
his Canadian citizenship by false representation or fraud or by knowingly
concealing material circumstances.
[196] The
Minister advised that, if successful, he would not seek costs. Consequently,
there will be no order as to costs.
JUDGMENT
THIS COURT ADJUDGES
AND DECLARES that:
1.
The Defendant Jura Skomatchuk obtained citizenship in Canada by false representation
or fraud or by knowingly concealing material circumstances, within the meaning
of s. 18(1)(b) of the Citizenship Act.
“Judith A. Snider”
___________________________
Judge
APPENDIX “A”
to the
Reasons for Judgment and Judgment dated
August 17, 2006
In
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
and
JURA SKOMATCHUK
T-440-04
Citizenship
Act, 1985
10. (1) Subject to section 18 but
notwithstanding any other section of this Act, where the Governor in Council,
on a report from the Minister, is satisfied that any person has obtained,
retained, renounced or resumed citizenship under this Act by false
representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person
shall be deemed to have had no effect, as of such date as may be fixed by
order of the Governor in Council with respect thereto.
(2) A person
shall be deemed to have obtained citizenship by false representation or fraud
or by knowingly concealing material circumstances if the person was lawfully
admitted to Canada for permanent residence by false representation or fraud
or by knowingly concealing material circumstances and, because of that
admission, the person subsequently obtained citizenship.
…
18. (1) The Minister shall not make a
report under section 10 unless the Minister has given notice of his intention
to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days
after the day on which the notice is sent, request that the Minister refer
the case to the Court; or
(b) that person does so request and the
Court decides that the person has obtained, retained, renounced or resumed
citizenship by false representation or fraud or by knowingly concealing
material circumstances.
(2) The
notice referred to in subsection (1) shall state that the person in respect
of whom the report is to be made may, within thirty days after the day on
which the notice is sent to him, request that the Minister refer the case to
the Court, and such notice is sufficient if it is sent by registered mail to
the person at his latest known address.
(3) A
decision of the Court made under subsection (1) is final and, notwithstanding
any other Act of Parliament, no appeal lies therefrom.
Canadian
Citizenship Act, 1948
10. (1) The Minister may, in his discretion grant
a certificate of citizenship to any person who is not a Canadian citizen and
who makes application for that purpose and satisfies the Court that,
(a) either he has filed in the
office of the Clerk of the Court for the judicial district in which he
resides, not less than one nor more than five years prior to the date of his
application, a declaration of intention to become a Canadian citizen, the
said declaration having been filed by him after he attained the age of
eighteen years; or he is the spouse of and resides in Canada with a Canadian
citizen, or he is a British subject;
(b) he has been lawfully
admitted to Canada for permanent residence therein;
(c) he has resided continuously
in Canada for a period of one year immediately preceding the date of the
application and, in addition, except where the applicant has served outside
of Canada in the armed forces of Canada during time of war or where the
applicant is the wife of and resides in Canada with a Canadian citizen, has
also resided in Canada for a further period of not less than four years
during the six years immediately preceding the date of the application;
(d) he is of good character;
(e) he has an adequate knowledge
of either the English or the French language, or, if he has not such an
adequate knowledge, he has resided continuously in Canada for more than
twenty years;
(f) he has an adequate
knowledge of the responsibilities and privileges of Canadian citizenship; and
(g) he intends, if his
application is granted, either to reside permanently in Canada or to enter or
continue in the public service of Canada or of a province thereof.
Immigration
Act, 1948
2. In this Act
…
(n) “landing” means the lawful
admission of an immigrant to Canada for permanent residence;
…
20. (1) Every person, including Canadian citizens
and persons with Canadian domicile, seeking to come into Canada shall first
appear before an immigration officer at a port of entry or at such other place
as may be designated by an immigration officer in charge, for examination as
to whether he is or is not admissible to Canada or is a person who may come
into Canada as of right.
(2) Every person shall answer truthfully all questions
put to him by an immigration officer at an examination and his failure to do
so shall be reported by the immigration officer to a Special Inquiry Officer
and shall, in itself, be sufficient ground for deportation where so ordered
by the Special Inquiry Officer.
(3) Unless the examining immigration officer is of
opinion that it would or may be contrary to a provision of this Act or the
regulations to grant admission to or otherwise let a person examined by him
come into Canada, he shall, after such examination, immediately grant
admission to or let such person come into Canada.
…
50. Every person who
…
(f) knowingly makes any false
or misleading statement at an examination or inquiry under this Act or in
connection with the admission of any person to Canada or the
application for admission by any person;
…
is guilty
of an offence and is liable on summary conviction, for the first offence to a
fine not exceeding five hundred dollars and not less than fifty dollars or to
imprisonment for a term not exceeding six months and not less than one month
or to both fine and imprisonment, and, for the second offence to a fine not
exceeding one thousand dollars and not less than one hundred dollars or to
imprisonment for a term not exceeding twelve months and not less than three
months or to both fine and imprisonment, and, for the third or a subsequent
offence to imprisonment for a term not exceeding eighteen months and not less
than six months.
|
|
Loi sur la citoyenneté, 1985
10. (1) Sous réserve du seul article 18, le gouverneur en conseil
peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la
conservation ou la répudiation de la citoyenneté, ou la réintégration dans
celle-ci, est intervenue sous le régime de la présente loi par fraude ou au
moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits
essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la
date qui y est fixée :
a)
soit perd sa citoyenneté;
b)
soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse
déclaration ou dissimulation intentionnelle de faits essentiels la personne
qui l’a acquise à raison d’une admission légale au Canada à titre de résident
permanent obtenue par l’un de ces trois moyens.
…
18. (1) Le ministre ne peut procéder à l’établissement du rapport
mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son
intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne
se soit réalisée :
a)
l’intéressé n’a pas, dans les trente jours suivant la date d’expédition de
l’avis, demandé le renvoi de l’affaire devant la Cour;
b)
la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse
déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a
l’intéressé, dans les trente jours suivant sa date d’expédition, de demander
au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis
peut se faire par courrier recommandé envoyé à la dernière adresse connue de
l’intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive
et, par dérogation à toute autre loi fédérale, non susceptible d’appel.
Loi sur la citoyenneté canadienne, 1948
10. (1) Le Ministre peut, à sa discrétion, accorder un
certificat de citoyenneté à toute personne qui n’est pas un citoyen canadien,
qui en fait la demande et démontre à la satisfaction du tribunal,
a) qu’elle a
produit au greffe du tribunal du district judiciaire où elle réside, au moins
un an et au plus cinq ans avant la date de sa demande, une déclaration de son
intention de devenir un citoyen canadien, ladite déclaration ayant été
produite par cette personne après qu’elle a atteint l’âge de dix-huit ans; ou
qu’elle est le conjoint d’un citoyen canadien et réside avec lui au Canada,
ou qu’elle est un sujet britannique;
(b) qu’elle a
été licitement admise au Canada pour y résider en permanence;
(c) qu’elle a
résidé continûment au Canada pendant un an immédiatement avant la date de sa
demande et qu’en outre, sauf si la personne qui présente la demande a servi
hors du Canada dans les forces armées du Canada en temps de guerre, ou si
elle est l’épouse d’un citoyen canadien et réside avec lui au Canada, elle a
résidé au Canada durant une période supplémentaire d’au moins quatre ans au
cours des six années qui ont immédiatement précédé la date de la demande;
d) qu’elle a
une bonne moralité;
e) qu’elle
possède une connaissance suffisante de l’anglais ou du français, ou, si elle
ne possède pas cette connaissance, qu’elle a résidé continûment au Canada
pendant plus de vingt ans;
f) qu’elle a
une connaissance suffisante des responsabilités et privilèges de la
citoyenneté canadienne; et
g) qu’elle se
propose, une fois sa demande accordée, soit de résider en permanence au
Canada, soit d’entrer ou de demeurer au service public du Canada ou de l’une
de ses provinces.
Loi sur
l’immigration, 1948
2. Dans la présente loi, l’expression
…
n)
«réception» signifie l’admission légale d’un immigrant au Canada aux fins de
résidence permanente;
…
20. (1) Quiconque, y compris un citoyen
canadien et une personne ayant un domicile canadien, cherche à entrer au
Canada doit, en premier lieu, paraître devant un fonctionnaire à
l’immigration, à un port d’entrée ou à tel autre endroit que désigne un
fonctionnaire supérieur de l’immigration, pour un examen permettant de
déterminer s’il est admissible ou non au Canada ou s’il est une personne
pouvant y entrer de droit.
(2) Chaque personne doit donner des
réponses véridiques à toutes les questions que lui pose, lors d’un examen, un
fonctionnaire à l’immigration, et tout défaut de ce faire doit être signalé
par ce dernier à un enquêteur spécial et constitue, en soi, un motif
d’expulsion suffisant lorsque l’enquêteur spécial l’ordonne.
(3) Sauf s’il estime qu’il serait ou
qu’il peut être contraire à quelque disposition de la présente loi ou des
règlements d’accorder à une personne par lui examinée l’admission au Canada,
ou de la laisser autrement entrer au Canada, le fonctionnaire examinateur à
l’immigration doit, dès qu’il a terminé cet examen, accorder à la personne en
cause l’admission au Canada, ou l’y laisser entrer.
…
50. Est coupable d’une infraction et
encourt, sur déclaration sommaire de culpabilité, pour la première
infraction, une amende d’au plus cinq cents dollars et d’au moins cinquante
dollars ou un emprisonnement d’au plus six mois et d’au moins un mois ou à la
fois l’amende et l’emprisonnement et, pour la deuxième infraction, une amende
d’au plus mille dollars et d’au moins cent dollars ou un emprisonnement d’au
plus douze mois et d’au moins trois mois ou à la fois l’amende et
l’emprisonnement et, pour la troisième infraction ou une infraction
subséquente, un emprisonnement d’au plus dix-huit mois et d’au moins six
mois, quiconque
…
(f) sciemment
fait une déclaration fausse ou trompeuse au cours d’un examen ou d’une
enquête prévue par la présente loi ou à l’égard de l’admission d’une personne
au Canada ou de la demande d’admission de qui que ce soit;
…
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