Date: 20060817

Docket: T-560-04

Citation: 2006 FC 993

Ottawa, Ontario, August 17, 2006

PRESENT:     The Honourable Madam Justice Snider

 

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

  Plaintiff

and

 

 

JOSEF FURMAN

 

Defendant

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I.  Introduction

[1]        Mr. Josef Furman, the Defendant, is 87 years old. Originally from Ukraine, he came to Canada in July 1949 from Germany, where he had lived since 1942. Mr. Furman became a Canadian citizen in 1957. Mr. Furman currently resides in Edmonton in a long-term care facility and suffers from dementia.

 

[2]        The Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to revoke the Canadian citizenship of Mr. Furman on the basis that he was admitted to Canada and obtained his citizenship by false representations or fraud or by knowingly concealing material circumstances. Specifically, the Minister alleges that Mr. Furman failed to disclose a change in his surname and that he failed to disclose the following activities during World War II:

 

(a)    his collaboration with German occupation authorities;

 

(b)   his engagement with the SS Trawniki Training Camp;

 

(c)    his activities, as a Trawniki guardsman, at the Warsaw Ghetto in April and May, 1943 and at the Bialystok Ghetto in August 1943; and

 

(d)   his activities as a concentration camp guard at the Flossenbürg concentration camp in 1943 and 1944.   

 

[3]        From a procedural perspective, these proceedings began with a Notice, dated November 13, 2003, in which the Minister at that time (the Honourable Denis Coderre) advised Mr. Furman that he intended to ask the Governor in Council to revoke his Canadian citizenship on the basis of the above-noted allegations. Mr. Furman exercised his right to ask that the matter be referred to the Federal Court. The matter was then referred to the Federal Court by the issuance of a Statement of Claim filed by the Minister.

 

[4]        The hearing of this matter was held together with that of Canada (Minister of Citizenship and Immigration) v. Jura Skomatchuk (Court File No. T-440-04) because of the similarity in the evidence for both individual matters. However, these reasons and decision relate only to Mr. Furman.

 

[5]        For the reasons that follow, I am satisfied, on a balance of probabilities, that Mr. Furman was an SS guardsman of the Third Reich, during which time he was engaged in the elimination of the Warsaw and Bialystok ghettos and as a concentration camp guard. He failed to disclose that information to immigration officials at the time he came to Canada. In other words, Mr. Furman obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information. However, the Minister has not persuaded me that Mr. Furman failed to disclose the change in his surname from Furmanchuk to Furman. Given these conclusions, there is no need to consider the allegation of collaboration.

 

II.  Approach to Analysis

[6]        As discussed in more detail below, the task that is assigned to this Court is to decide whether Mr. Furman obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (s. 18(1)(b), Citizenship Act, R.S.C. 1985, C-29 (the Citizenship Act, 1985)). Having heard and reviewed the evidence presented in these proceedings, I have concluded that my decision requires that I make a series of findings of fact that address the following questions.

 

1. Was Mr. Furman born “Iosef Furmanchuk”?

 

2. Was an individual named “Furmantschuk” trained as an SS Trawniki guardsman and did this individual participate, as a guard, in activities at the Jewish ghettos of Warsaw and Bialystok and at the Flossenbürg concentration camp?

 

3. What were Mr. Furman’s activities during World War II? The Minister submits that Mr. Furman was the “Furmantschuk” Guardsman referred to in 2, above. Mr. Furman submits that he was brought to Germany on May 1, 1942 and provided forced farm labour in Eltheim, Germany until the end of the war.

 

4. Would Canadian immigration officials have interviewed Mr. Furman and sought information on his World War II activities? As there is no direct testimony by any immigration official who would have interviewed Mr. Furman, the answer to this question involves a review of Canadian immigration and security procedures in place in the relevant time period.

 

5. If it is shown that Mr. Furman is the same “Furmantschuk” Guardsman described in 2, above, did Mr. Furman conceal these wartime activities from Canadian immigration officials prior to coming to Canada?

 

6. If I find that Mr. Furman did not disclose his true name, his status as a Soviet prisoner of war or his wartime position as a guardsman with the German SS to Canadian immigration officials, what impact would that have had on his immigration to Canada and later acquisition of Canadian citizenship?

 

7. If Mr. Furman failed to disclose his change of name upon application for Canadian citizenship, what impact would that have had on his citizenship?

 

[7]        Before addressing these specific questions, it would be helpful to the reader to understand the legal framework under which this proceeding has been commenced. Further, as the most serious allegations by the Minister involve activities as a concentration camp guard, it may also be useful to have an overview of the system of concentration camps and labour camps in the territories held by the Third Reich. More specifically, since the alleged activities are associated with the SS Trawniki Training Camp, I will include an overview of the history of and procedures for training and use of Trawniki guardsmen.

 

[8]        These reasons are organized as follows, with each section commencing at the paragraph noted.

I.     Introduction……………………………………………………………………..[1]

II.   Approach to Analysis…………………………………………………………....[6]

III.  Legal Framework ……………………………………………………………….[9]

A.  Procedural Rights…………………................................................................[9]

(1) Section 10(1) of the Citizenship Act, 1985................................................[10]

(2) Deeming Provision of s. 10(2) of the Citizenship Act, 1985.....................[12]

(3) Section 18 Notice………………………………………………………..[13]

(4) Effect of Court’s Determination under s. 18……………………………..[15]

B.  Substantive Rights…………………………………………………………....[16]

(1) Section 10(1) of the Citizenship Act, 1948.....................................................[17]

(2) Meaning of “lawfully admitted”…………………………………………...[18]

C. Burden and Standard of Proof…………………………………………………[21]

IV.  Historical Context………………………………………………………………...[26]

A.  Witnesses..............................................................................................................[26]

B.  Concentration and Labour Camp System of the Third Reich…………………[32]

(1) Overall Concentration Camp System……………………………………....[32]

(2) Administration of the Camps in the General Government………………….[38]

(3) Camp System in the Lublin region of the General Government……………[44]

(4) Trawniki Training Camp and use of Soviet POWs…………………………[47]

(5) Trawniki Processing of and Documentation for Guardsmen Trainees………[53]

(6) Role of Guardsmen………………………………………………………….[58]

(7) Integration with SS Death’s Head Units…………………………………….[66]

V.   Allegation of Change of Name……………………………………………………..[69]

VI.  Background and Role of Mr. Furman in World War II…………………………….[78]

A.  Undisputed Facts……………………………………………………………….[78]

B.  Mr. Furman’s Evidence………………………………………………………...[81]

C.  Guardsman Furmantschuk……………………………………………………...[95]

D.  Identity of Guardsman Furmantschuk….……………………………………..[121]

E.  Conclusion…………………………………………………………………….[129]

VII. Immigration of Mr. Furman to Canada……………………………………………[130]

A.     Mr. Furman in post-war Germany……………………………………………..[136]

B.     Evolution of Canada’s Immigration Policy…………………………………….[140]

C.     Role of RCMP………………………………………………………………….[143]

D.     RCMP Security Screening Proceedure ….……………………………………..[153]

E.      Grounds for Rejection …………………………………….……………………[158]

F.      Conclusion……………………………………………………………………...[168]

VIII. Screening of Mr. Furman…………………………………………………………..[170]

IX.    Failure to Disclose True Name of Birth……………………………………………[175]

X.     Acquisition of Citizenship………………………………………………………….[180]

XI.    Submissions of Mr. Furman on Decision in Dueck………………………………...[186]

XII.   Officer’s Exercise of Discretion…………………………………………………....[201]

XIII.  Summary of Findings………………………………………………………………[205]

XIV.  Overall Conclusion..………………………………………………………………..[207]

III.  Legal Framework

A.  Procedural Rights

 

[9]        With respect to the legislation that governs these proceedings, the procedural rights of Mr. Furman are governed by the legislation in force when the citizenship revocation proceedings are initiated. In this case, the relevant provisions are ss. 10 and 18 of the Citizenship Act, 1985. These provisions are set out in full in Appendix A to these reasons.

 

            (1)  Section 10(1) of the Citizenship Act, 1985  

[10]      Pursuant to s. 10(1) of this Act, the Minister may make a report to the Governor in Council to the effect that a person has obtained their citizenship “under this Act” by false representation or fraud or by knowingly concealing material circumstances. If the Governor in Council is then satisfied that the person obtained their citizenship in such a manner, “the person ceases to be a citizen”.

 

[11]      It is settled that the expression “under this Act”, where it appears in s. 10(1) of the Citizenship Act, 1985, must be interpreted as “under this Act, the Citizenship Act, as enacted from time to time” (Canada (Minister of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J. No. 1428 (QL), at para. 113). That is, a misrepresentation under a former Citizenship Act is caught by s. 10(1) of the Citizenship Act, 1985.

 

            (2)  Deeming Provision of s. 10(2) of the Citizenship Act, 1985       

[12]      It may be the case that a person did not directly lie or conceal information at the time of obtaining Canadian citizenship but did so to the overseas immigration officer who approved him for entry into Canada. This situation is addressed in s. 10(2). Pursuant to this provision, a person is deemed to have obtained his citizenship by fraud or by knowingly concealing material circumstances if he was “lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances” and, because of that admission, subsequently obtained his citizenship.

 

            (3)  Section 18 Notice

[13]      Section 18 of the Act requires that, before the Minister makes a report to the Governor in Council, he must give notice of his intention to do so to the person concerned. That person may then request that the question of whether he obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances be referred to the Federal Court. If this Court decides in the affirmative, the Court’s decision will form the basis of the Minister’s report.

 

[14]      In this proceeding, notice under s. 18 was signed by the Minister on November 13, 2003 and provided to Mr. Furman. By Notice of Request dated December 13, 2003, Mr Furman requested that the Minister refer this case to the Federal Court.

 

            (4)  Effect of Court’s Determination under s. 18

[15]      The Court’s determination does not, in itself, constitute a decision to revoke or terminate the citizenship of a person. Rather, the decision of this Court provides the Minister with a factual basis for the report and may constitute the foundation of a decision of the Governor in Council. Only the Governor in Council has the duty and power to decide whether to revoke citizenship. While the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)), a decision of the Governor in Council may be judicially reviewed (see, for example, Oberlander v. Canada (Attorney General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL)).

 

B.  Substantive Rights

[16]      With respect to substantive rights in relation to the acquisition of citizenship, I must examine the legislation in force at the time citizenship was acquired. Citizenship, in this case, was acquired in 1957. Accordingly, the two Acts that govern are the Canadian Citizenship Act, R.S.C. 1952, c. 33, proclaimed in 1948, (the Citizenship Act, 1948) and the Immigration Act, R.S.C. 1952, c. 325, also proclaimed in 1948 (the Immigration Act, 1948).

 

            (1)  Section 10(1) of the Citizenship Act, 1948

[17]      Section 10(1) of the Citizenship Act, 1948 set out the criteria that were to be satisfied, in 1957, in order to be granted a certificate of citizenship. The provision is set out in full at Appendix A. Of particular relevance to these proceedings, Mr. Furman had to satisfy the Minister that he had been “lawfully admitted to Canada for permanent residence” (s. 10(1)(b)) and that he was of “good character” (s. 10(1)(d)). Obviously, there are other criteria such as adequate knowledge of English and French and adequate knowledge of responsibilities and privileges of Canadian citizenship; they are not at issue in this case. In effect, the lawfulness of admission to Canada is a condition precedent to the acquisition of Canadian citizenship.

 

            (2)  Meaning of “lawfully admitted”

[18]      To establish what is meant by the term “lawfully admitted”, I must turn to the Immigration Act, 1948. In s. 2(n), “landing” is defined as “the lawful admission of an immigrant to Canada for permanent residence”.

 

[19]      For admission to Canada, an individual was required to undergo an examination before an immigration officer to determine whether he “is or is not admissible to Canada” (Immigration Act, 1948, s. 20(1)). Section 20(2) requires that the person “shall answer truthfully all questions put to him . . . and failure to do so . . . shall, in itself, be sufficient ground for deportation”. Of further interest is s. 50(f) which stipulated that every person who "knowingly makes any false or misleading statement at an examination or inquiry under this Act or in connection with the admission of any person to Canada or the application for admission by any person” was guilty of an offence under the  Immigration Act, 1948.

 

[20]      In sum, the scheme in 1957 was clear; misrepresentation during the examination for landing was not to be condoned. A person who lied or withheld material facts from the immigration officers before whom he appeared for examination was not “lawfully admitted” to Canada (Canada (Minister of Citizenship and Immigration) v. Bogutin [1998] F.C.J. No. 211 (QL) (F.C.T.D.), at para. 126) and, thus, is in breach of the Citizenship Act, 1948.

 

C.  Burden and Standard of Proof

[21]      The burden of proof clearly rests with the plaintiff Minister.

 

[22]      For purposes of defining the appropriate standard of proof, it is important to note that this is a civil proceeding rather than criminal.

 

[23]      In one of the first cases of this type (Canada (Secretary of State) v. Luitjens (1991), 40 F.T.R. 267, [1991] F.C.J. No. 1041 (F.C.T.D.)), the Court found that the standard of proof that the plaintiff had to meet was what the Court called “high degree of probability”. This has been rejected in the jurisprudence that has followed where the standard of proof has now been held to be that of balance of probabilities Bogutin, above at para. 110; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 (QL) at para. 7; Canada (Minister of Citizenship and Immigration) v. Baumgartner, 2001 FCT 970, [2001] F.C.J. No. 1351 (QL) at para. 8; Canada (Minister of Citizenship and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 (QL) at para. 13; Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (QL) (F.C.T.D.) at para. 187; Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824 (QL) (F.C.T.D.) at para. 5; and Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 (QL) (F.C.T.D.) at para. 38).

 

[24]      Thus, it is well established that, for a proceeding of this nature, the standard of proof is the civil standard of balance of probabilities. In a case such as this, however, where the allegations of conduct are morally blame-worthy and have serious consequences for the defendant, the jurisprudence teaches that I take great care in assessing the evidence (see, for example Odynsky, above at para. 13).

 

[25]      The balance of probabilities standard will be met if the Court is satisfied, on the evidence, that the existence of a fact in dispute is more probable than not. In other words, based on the evidence before this Court, I must find that the event or fact in dispute is not only possible but probable (Obodzinsky, above at paras. 8-9). In this context of serious allegations and consequences for the individual, the inherent probability or improbability of an event is itself a matter to be taken into account (Re H (minors), [1996] A.C. 563 (H.L.)).

 

IV.  Historical Context

A.  Witnesses

[26]      Two witnesses presented by the Minister were particularly helpful with respect to the historical context of these proceedings.

 

[27]      The first of these witnesses was Dr. Johannes Tuchel, an historian. In these proceedings, he was qualified as an expert witness to testify with respect to the following:

 

·        the terror apparatus of the Third Reich;

 

·        the history of World War II;

 

·        general information about concentration camps and the concentration camp system, including camps at Trawniki, Poniatowa, Flossenbürg, Sachsenhausen and Mauthausen and related satellite camps;

 

·        the role of Trawniki guards in the Third Reich; and

 

·        the liquidation or “cleansing” of the ghettos of Warsaw and Bialystok.

 

[28]      In addition to Dr. Tuchel’s oral testimony, the Minister presented into evidence a document entitled “The Deployment of SS Guardsmen (SS-Wachmänner) from Trawniki in National Socialist Concentration Camps, with particular Emphasis on the Flossenbürg Concentration Camp”, dated November 2005 and prepared by Dr. Tuchel (Tuchel Report).

 

[29]      The second witness was Dr. Jack Terry. Dr. Terry was born March 10, 1930 in Belzyce, Poland, about 20 kilometres from Lublin. He testified as to the conditions in labour and concentration camps of the Third Reich and as to the role of Ukrainian guardsmen.

 

[30]      Dr. Terry is a Jew. On May 8, 1943, the remaining residents of his town were rounded up by a team consisting of an SS member named Reinhold Feix and 24 Ukrainian guards. Those who were not fit for labour, such as older women and children, were executed outright. Others were forced to dig their graves and sent to labour camps. Dr. Terry was sent to Budzyn where he remained until April 1944. At that time, he was transferred to Wieliczka, a salt mine near Krakow, where he worked 600 metres below ground in a Nazi airplane factory. His last destination was the Flossenbürg concentration camp where he arrived on August 4, 1944. At this camp, he worked in a stone quarry for two weeks and, thereafter, in an underground Messerschmitt factory. When the camp was liberated on April 23, 1945 by the American Army, it appears that Dr. Terry was the only surviving Jew at the camp; all others were evacuated and “taken on the death march” in the days preceding the liberation.

 

[31]      Dr. Terry’s direct and compelling testimony affirmed the well-known view of the brutal treatment of inmates in concentration camps during World War II. Further, his testimony reminds us of why persons associated with the administration of the camps were not welcome in Canada.

 

B.  Concentration and Labour Camp System of the Third Reich

            (1)  Overall Concentration Camp System

[32]      Dr. Tuchel provided a robust history of the purpose and structure of the concentration camp system in the Third Reich, and drew to the Court’s attention the distinction between the main camp system within the expanding borders of Germany itself (the German Reich), and a separate system located in the German-occupied region of Poland known as the “General Government” (Generalgouvernement). The Nazi government utilized concentration camps as a tool of control and oppression from the early 1930s onward. As early as February 1933, the second commandant of the Dachau concentration camp, Theodor Eicke, had established “a standardized system of violence… to ensure a maximum of systematic brutality against the inmates” (Tuchel Report at 52).

 

[33]      In general, there were three types of war-time camps:

 

·      Labour camps – Jews performed forced labour in these camps, supporting German industry, but were not necessarily confined to the camps. Initially, these camps were not part of the concentration camp system. Two labour camps, located at Poniatowa and Trawniki, in occupied Poland, are of relevance to these proceedings.

 

• Concentration camps – These were camps of incarceration. Many types of prisoners were confined to these camps, including Jews, Poles, Russians, and Germans. By 1942, forced labour was introduced to these camps. Many inmates died from starvation, disease, and murder. Of particular importance to this inquiry was the concentration camp located at Flossenbürg in Bavaria, near the Czech border.

 

• Extermination camps – the sole purpose of these camps was to exterminate all Jews that arrived through their gates. These camps are distinguished from concentration camps by their single, genocidal purpose. Extermination camps were located in the General Government (occupied Poland).

 

[34]      Ghettos were a fourth type of confinement for Jews in the area of the General Government. In this system, Jews were restricted to a relatively small section of a city. Ghettos served as a source of slave labour for German industries, but also as a way to concentrate Jews and make it easier to transport them to labour, concentration or extermination camps.

 

[35]      In the pre-war period, and until 1942, the objectives of the camps were to suppress political enemies and opposition in occupied countries. In 1942, concentration camps also became labour camps, and inmates were forced to work for the German arms industry. Dr. Terry testified that “living conditions” was the wrong term for life in the concentration camps; the conditions were anything but suitable for life. Starvation was the norm and hygiene was impossible. Dr. Terry explained that the German camp policy was “extermination through work.” 

 

[36]      From 1942 onward, the camps continued to grow with the influx of Eastern European prisoners. The major camps grew in size and a network of “satellite camps” sprung up; these smaller camps were located near a major concentration camp and fell under its administration.

 

[37]      It is clear from the evidence of both Dr. Tuchel and Dr. Terry that mass murder was the overall goal of the camp system. As Dr. Tuchel testified, extermination camps had “only one purpose, to kill people”. SS documents recovered after the war indicate the deliberate brutality of the camp conditions; the Jewish labour was to be “literally exhaustive… The working hours are not subject to any limitations” (Tuchel Report at 55).

 

            (2)  Administration of the Camps in the General Government

[38]      All of the camps in Germany and German-occupied lands fell under the responsibility of Heinrich Himmler, Reichsführer SS and Chief of German Police and Gestapo (secret police).

 

[39]      In the General Government, the Head SS and Police Leader (HSSPF) had jurisdiction over the exploitation of Jewish forced labour generally, and over the labour and concentration camp system in that region. The General Government was divided into several administrative districts, one of which was the Lublin district. Each district was controlled by an SSPF (SS and Police Leader). The SSPFs directly oversaw the camps in their regions and answered to the HSSPF and, above him, to Heinrich Himmler.

 

[40]      In the General Government, between 1939 and 1941, Jews were consolidated into forced labour groups and ghettos, and moved to a growing network of labour and concentration camps. In late 1941, extermination camps were also developed in this region. The General Government had been chosen as the region to carry out the genocidal objectives of the Nazi and SS leaders. Since mass executions were proving too difficult and too public, the “Final Solution of the Jewish question” was determined at the Wannsee Conference on July 31, 1941: to evacuate Jews to eastern occupied Poland, where they could all be killed in the camps.

 

[41]      This “Final Solution” was carried out under the code name Operation Reinhard (“Aktion Reinhard”). This operation saw the construction of, among others, the three extermination camps in the Lublin region – Belzec, Sobibor, and Treblinka – and the murder of over 1.7 million Jews. Operation Reinhard commenced in late 1941 and continued until October 1943. After that time, the extermination camps in the Lublin area were shut down and disguised as farms, and a skeleton guard was left at those locations.

 

[42]      It is important to note that the concentration camp system throughout Germany and the occupied territories was entirely under the supervision and control of Heinrich Himmler and therefore the SS and German Police. In autumn 1943, administration of the camps was changed from SSPF control to the newly-formed SS Economic and Administrative Main Office (SS-WVHA, or “SS-Wirtschafts-Verwaltungshauptamt”), Administrative Group D. This administrative change emphasized the growing importance of forced labour to the Third Reich and the escalation of the genocidal policies.

 

[43]      German Guard Units in the camp system were called the “Totenkopfverbande” or “SS Death’s Head Units” (and later “SS Death’s Head Battalion”) by order of Himmler himself. The SS Death’s Head Units were specifically separated from the Armed Forces and the Police; they were to become the core of an SS elite troop. The original German members of this Unit were marked by “blood” tattoos, which indicated their blood types.

 

            (3)  Camp System in the Lublin region of the General Government

[44]      The Lublin region contained all three types of camps, until late 1943. There were labour camps such as Poniatowa, Budzyn, and the Trawniki labour camp (see below; this labour camp was attached to the Trawniki Training Camp for guardsmen). There were also concentration camps, such as the Lublin concentration camp. Finally, there were extermination camps such as Belzec, Sobibor, and Treblinka. All of these camps were under the supervision of the SSPF Lublin.

 

[45]      1942 and early-to-mid 1943 saw the evacuation or “cleansing” of Jewish ghettos, including major ghettos in the cities of Warsaw and Bialystok. Jews were forcibly rounded up from the ghettos and sent to one of several concentration or extermination camps, including the Lublin concentration camp and the Treblinka extermination camp.

 

[46]      In September 1943, the General Government concentration camp administration was placed under the SS-WVHA. At this time, many people from the occupied territories were taken from their homelands and forced to work for Germans in other parts of Europe; those who protested or did not work hard enough were sent to the concentration camps. This change also eliminated all labour camps; only concentration camps and extermination camps were to exist from that point on. Accordingly, all labour camps in the Lublin region, including Trawniki, were converted to concentration camps and placed under the administration of the larger Lublin concentration camp.

 

            (4)  Trawniki Training Camp and Use of Soviet POWs

[47]      I turn to a review of the German facility that is central to these proceedings. Among the various camps located in the General Government, a unique dual-camp was located at Trawniki, about 35 km from the town of Lublin and close to the border with Ukraine. This location contained a labour/concentration camp (Labour Camp Trawniki) as well as an adjoining training camp for non-German guardsmen (SS Training Camp Trawniki). Like the other camps in the Lublin region, (such as Poniatowa) the Trawniki camps were at first under the supervision of the SSPF Lublin and, as of September 1943, under the SS-WVHA organization (at which time the labour camp became a concentration camp).

 

[48]      Guardsmen trainees came to Trawniki in a number of ways. Some were German volunteers. However, of particular interest to this case, many were prisoners of war who had been captured by the Germans.

 

[49]      In early 1941, the first selected Soviet prisoners of war arrived in Trawniki and undertook several weeks of training as guardsmen. These trainees were selected from POW camps, initially those in the districts of Cracow and Lublin and, somewhat later, from POW camps in the Ukraine. For these prisoners of war, the situation in POW camps was difficult; a large percentage did not survive. For example, according to Dr. Tuchel, about 22,000 Soviet prisoners of war interned at Poniatowa died over the 1941-1942 winter. Additionally, many Eastern Europeans, including Ukrainians, had suffered under the Soviet regime; this was true of former Soviet conscripts as much as anyone else. Thus, it is understandable why these men were seen as a potential source of manpower for the German war machine and why they would not refuse to train and serve.

 

[50]      Documentary evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans exploited Soviet prisoners of war after the attack on the USSR, in 1941. On July 25, 1941, faced with severe manpower shortages in the vast, newly conquered Eastern European territories, Heinrich Himmler instructed SS and Police Leaders, including SSPF Globocnik (the first commander of Trawniki Training Camp), to establish:

 

. . . protective formations made up of those population groups in the occupied territories who are friendly towards us, as has already been done in some cases by the Operational Task Forces (Einsatzgruppen) of the Security Police. These protective formation should be formed primarily of Ukrainians, residents of the Baltic countries, and Byelorussians. They should be selected from among the men who still live in those regions, and from among non-Communist prisoners of war. [Emphasis added.]

 

[51]      Formation of these non-German forces was so necessary to the German war effort that possible Communist ties were not to be a problem except in the case of “fanatically inclined Bolsheviks, political commissars, and other dangerous functionaries” (according to Operational Order No. 8 issued by Reinhard Heydrich, Chief of the SD, on July 17, 1941; see footnote 40 at page 16, Tuchel Report). In short, the Germans were not being very discriminating about who they chose, and the selected prisoners of war were not necessarily supportive of the Nazi regime.

 

[52]      The evidence also indicates that Soviet prisoners of war did not volunteer for service in the German units, at least not in all cases. Heydrich’s Operational Order No. 8, for instance, established two duties for the SD units assigned to the prisoner of war camps: (i) to select prisoners of war with “intolerable” characteristics for execution; and (ii) to select prisoners of war for service in the auxiliaries. Although I have no detailed information about the selection process, I feel no hesitation inferring that the only viable choice given to the selectees was service. Indeed, Dr. Tuchel specifically and emphatically commented at trial that he would never refer to the Soviet prisoners of war who joined the Trawniki Training Camp as “volunteers”.

 

            (5)  Trawniki Processing of and Documentation for Guardsmen Trainees

[53]      Upon their arrival at Trawniki, new recruits were photographed. In the Camp office, a personnel sheet (Personalbogen) and personnel card (Personalkarte) was kept for each individual. Each recruit was assigned a registration number which “was to stay with the recruit and future guard for as long as he served in Trawniki or at a location or commando to which he was assigned from Trawniki” (Tuchel Report at 24).

 

[54]      Dr. Tuchel provided evidence that this registration number was a feature of the Trawniki Training Camp that distinguished this facility from others in the German concentration camp system. A registration number was unique to a guardsman. No number was ever assigned to another individual, even if a guardsman died. Once Trawniki men were transferred out of the Trawniki camp system and into the German concentration camp system, their registration numbers were no longer used for identification. Using this information, Dr. Tuchel testified that he could track an individual guardsman among camp documents such as the Transfer Lists (which are discussed in detail below).

 

[55]      Dr. Tuchel also testified that the registration numbers were given out in a sequential basis upon recruitment, beginning with the number 1 and progressing upward. About 5,000 guardsmen were trained at Trawniki. Dr. Tuchel also explained how he could estimate when a recruit arrived at the camp. By examining the few surviving Personalbogen and Personalkartes of Trawniki guardsmen, which indicate their date of arrival, and by examining the registration numbers on various transfer lists, which are also dated, Dr. Tuchel could pinpoint a time frame in which a guardsman with a given registration number must have arrived at the Training Camp.

 

[56]      Every recruit signed a service pledge (Dienstverpflichtung), which makes it evident that the guardsmen were considered to be part of the SS. As of the spring of 1942, the pledge had the following wording:

 

. . . I hereby declare that I pledge to serve in the Guard Units of the SS and Police Leader in the District of Lublin for the duration of the war, and that I subject myself to the existing service regulations and disciplinary regulations.

 

[57]      Dr. Tuchel’s evidence was that, when transferred out of the Lublin district (for example, to a concentration camp within the German Reich itself), the identity documents of the individual guardsman were sent with him. Thus, the Personalbogen and Personalkarte of a guardsman sent to a camp beyond the Lublin district would not remain at Trawniki. This becomes important in this case because no personal identification documents have been located for Guardsman Furmantschuk, Registration No. 1538. Thus, there is no direct evidence as to when this person arrived at Trawniki and no photograph that could link this person to the Defendant, Mr. Furman.

 

            (6)  Role of Guardsmen

[58]      As Dr. Tuchel explained in both his report and testimony, the Trawniki guardsmen were used for many purposes. They acted as guards for labour, concentration, and extermination camps; they assisted in guarding important non-military locations such as saw-mills; and they participated in clearing Jewish ghettos. Later on, they were mixed with German guard units and some were transferred to concentration camps within the German Reich. Trawniki guardsmen were each issued a simple rifle and a bayonet in order to fulfill their duties.

 

[59]      Trawniki guardsmen began their training by guarding the Trawniki Labour Camp. The guardsmen’s role was to watch over the Jewish inmates, to escort them to and from their work, and to shoot any attempted escapees. The guardsmen carried out these same duties when sent to other labour camps, including Poniatowa.

 

[60]      Dr. Tuchel indicated that, according to reported accounts from the camps, the Trawniki guardsmen also interacted with inmates by beating them, or forcing inmates to assault each other. The guards at Poniatowa sometimes took money from Jews in return for slight privileges, such as being allowed to communicate with relatives through the barbed wire fence around the camp and obtain food, but this practice varied with the strictness of the camp commander. Dr. Terry testified that, at Flossenbürg, Ukrainian guards (who very likely were Trawniki men) would bait inmates into attempting to escape and then shoot them; the guards were often rewarded for killing “escapees.”

 

[61]      Documentary evidence canvassed by Dr. Tuchel indicates that Trawniki guardsmen were involved in the clearing of the Warsaw and Bialystok ghettos, and other ghettos in the Lublin area.

 

[62]      At the Warsaw Ghetto, between 200 and 250 Trawniki guardsmen participated in deporting Jews to the Treblinka extermination camp in 1942 and 1943. Heinrich Himmler ordered the complete evacuation of the Warsaw ghetto in late 1942, but the first effort to clear the ghetto in January 1943 failed; a Jewish resistance managed to fight off the German effort, although several thousand Jews were still deported to Treblinka at this time. In April 1943, the Germans assembled a larger force made up of Waffen-SS units, Security Police personnel, and three companies of Trawniki guardsmen. They succeeded in evacuating the entire ghetto, after a full month of fighting. Trawniki men sent to Warsaw were rolled into Warsaw Command (“Kommando Warsaw” in German) for the duration of the operation and were active in the evacuation. A report by SS-Brigadefuhrer Jurgen Stroop, with a title that translates to "The Jewish District in Warsaw No Longer Exists!" (the Stroop Report), indicates that many of the guardsmen were wounded or killed during the operation. Trawniki guardsmen were often deployed as “cordon personnel” at the ghetto wall, to prevent Jews from escaping. They also conducted searches inside the ghetto, gathered Jews for deportation, and guarded transport trains heading to concentration or extermination camps. Other documentation indicates that the guardsmen were repeatedly involved in acts of violence while carrying out these duties.

 

[63]      The clearing of the Bialystok ghetto followed after Warsaw. A large force was used at the start, including about 200 Trawniki men. The clearing encountered less resistance than in Warsaw and was completed in 5 days. Trawniki guardsmen fulfilled the same role as before, and were involved in several documented accounts of violence against Jews.

 

[64]      Jews rounded up in the clearing of these ghettos were either moved directly to extermination camps or to labour or concentration camps. Of the Jews evacuated from Warsaw and Bialystok, very few survived to the end of the war.

 

[65]      Some Trawniki men also served in the extermination camps. They performed guard service, sealed off arriving transports, unloaded railway cars carrying Jews, and escorted Jews to the gas chambers. Documentary evidence shows that Trawniki men participated in gassing at Treblinka, by starting the motors that pumped gas into the death chambers.

 

            (7)  Integration with SS Death’s Head Units

[66]      In 1943, the Trawniki guardsmen were comprised of former Soviet POWs and of volunteers. Up to this time, the Trawniki men had been somewhat unreliable; there had been a significant number of desertion attempts. To solve this problem, the Lublin SSPF suggested to Himmler that the Trawniki men be integrated into the regular German guard units, known as the SS Death’s Head Units. Beginning in 1943, Trawniki men were exchanged with German guardsmen from concentration camps within Germany itself. German records show that every effort was made to treat the Trawniki guardsmen as members of the SS Death’s Head Guard Battalion: they were to be treated as comrades; they received the same pay and benefits as German soldiers; and their duties were the same as German guards.

 

[67]      German records, including two of the Transfer Lists that are central to this inquiry, show the transfer of hundreds of Trawniki guardsmen to German concentration camps such as Flossenbürg and Sachsenhausen. According to Dr. Tuchel’s report, “approximately 870 Trawniki SS Guardsmen can be identified by name who were transferred from Trawniki to the SS Death’s Head Guard Battalions in concentration camps between April and November 1943” (Tuchel Report at 72). Dr. Tuchel indicated in testimony that the Trawniki men were deliberately broken up from their company once in Germany and distributed among the Death’s Head Units.

 

[68]      In my view, there is little doubt that the Trawniki guardsmen were not only members of the SS, but, as of 1943, were also members of the SS Death’s Head Guard Units. While it appears that they did not carry the Blood grouping tattoo that was born by the German members, in every other regard, they were part of those Units.

 

V.  Allegation of Change of Name

[69]      With this background, I move to consider the particular circumstances of the Minister’s allegations. The first and fundamental question that arises is that of Mr. Furman’s name. The Minister alleges that Mr. Furman was born “Furmanchuk” but represented his name as “Furman” to officials after the war. The importance of this assertion is that, if true, Mr. Furman’s failure to disclose his true name may have constituted misrepresentation both at the time he was considered for immigration to Canada and when he applied for Canadian citizenship in 1957. Further, and of critical importance, unless that Minister establishes this assertion, there is no evidence to link Mr. Furman with the activities of a Trawniki guardsman named “Furmantschuk” in German records.

 

[70]      It is clear, from all the documents produced after 1945, that Mr. Furman was consistently using the name “Furman” as of 1945 (although I note that, from time to time, the spelling used is “Furmann”). However, what evidence do I have regarding Mr. Furman’s name at birth?

 

[71]      I begin with the Agreed Statement of Facts that Mr. Furman was born March 8, 1919 in the village of Korochenki, Chudniv, Zhitomir Region. The date and place of birth were confirmed during a limited examination of discovery of Mr. Furman. At that time, he gave his birth place as “Korochanki” and his parents’ names as “Leon” and “Daria”. While he could not produce a birth certificate, Mr. Furman acknowledged that his birth “should have been recorded at the church”.

 

[72]      Beyond that, I have nothing further from Mr. Furman regarding his birth, although it was likely open to Mr. Furman to attempt to acquire documentation from the authorities in his place of birth. He did not do so.

 

[73]      The Minister, on the other hand, tendered evidence provided by the Director of the State Archives, Zhytomyr Region of Ukraine. This evidence consists of photocopies of records for the period from January to March, 1919, from the Register of Births of the Orthodox Parish Church of the Resurrection. As set out by the Director and translated into English, this Church is “located in the town of Chudniv, Zhytomyr Povit to the parish of which the village of Korochenki belongs”.

 

[74]      Of immediate interest is that the records include the town and region in Ukraine of Mr. Furman’s birth – subject to minor spelling variations – and the period of his birth date. On “Extract 4” of this record, the following information appears (as translated) for a male child born March 8, 1919:

 

 

Given name of newborn	Occupation, given name, patronymic, surname and religious denomination of parents
Iosif	Peasant from village of Korochenki: Leontii Iosifov[ich] Furmanchuk And his lawful wife Daro[-]eya Ko[n]drat’[ev]na, both of Orthodox faith

 

[75]      Mr. Furman argues that the Register does not provide evidence that Mr. Furman was born “Furmanchuk”. I do not agree.

 

[76]      In my view, the Register of Births provides persuasive evidence of Mr. Furman’s birth. Specifically, I note the following:

 

(a)    the Register is uncontradicted by any other evidence;

 

(b)   the birth date matches exactly that acknowledged by Mr. Furman;

 

(c)    the names of the parents also agrees with those given by Mr. Furman during discovery, albeit with variation in spelling;

 

(d)   Mr. Furman during discovery stated that his place of birth was Korochenki; this matches the information on the Register of Births;

 

(e)    in documents prepared before he came to Canada, Mr. Furman’s religion is identified as “Orthodox”;

 

(f)     Mr. Furman acknowledged that his birth would likely be recorded in Church records;

 

(g)    no evidence of any other village with that name in any other location was offered; and

 

(h)    no other name similar to “Furman” is included in the Register for the months of January, February or March, 1919.

 

[77]      On the evidence before me, it is most improbable that Mr. Furman and the newborn male child “Iosef Furmanchuk” are two different individuals. I find, on a balance of probabilities, that Mr. Furman was born “Iosef Furmanchuk”. At some point he began using “Furman” as his surname. The consequences of presenting himself as “Furman” arise at two different times; when he applied to immigrate to Canada; and when he applied to become a Canadian citizen. These two situations are discussed below.

 

VI.  Background and Role of Mr. Furman in World War II

A.  Undisputed Facts

[78]      A number of facts concerning Mr. Furman are set out in the Agreed Statement of Facts filed by the parties and are supported by documents filed in these proceedings. The following information is agreed or is not in dispute:

 

(a)    Mr. Furman is an ethnic Ukrainian, born on March 8, 1919 in the village of Korochenki, Chudniv, Zhitomir Region. This region became part of the Soviet Union in 1921; was under the control of the Third Reich during portions of World War II; and, is now part of Ukraine.

 

(b)   In 1940, he was conscripted into the Soviet army.

 

(c)    In 1942, he was taken prisoner by the Germans.

 

(d)   Between 1946 and July 1949, when he came to Canada, Mr. Furman lived in Europe as a displaced person. During this time he was one of thousands of ethnic Ukrainians who did not live in a refugee camp; rather he was described as a “free living displaced person” who attempted to make his living directly in the German economy.

 

[79]      The critical question is what Mr. Furman was doing between 1942 and 1945. Mr. Furman claims that he was a farm worker for the relevant period. The Minister contends that Mr. Furman was a guardsman with the German SS and was engaged, for at least part of that time, as a concentration camp guard. It is evident that not both of these stories can be true.

 

[80]      I begin by assessing Mr. Furman’s evidence.

 

B.  Mr. Furman’s evidence

[81]      Mr. Furman did not testify because of his health. However, he asserts that certain documentary evidence establishes that, during the period from 1942 to 1945, he was performing forced farm labour in Germany.

 

[82]      One document produced by Mr. Furman is a Declaration sworn November 27, 1947 by Peter Sikora and Iwan Relonok. The statement is as follows:

 

Mr. Furman Josef, born March 8, 1919 in Koroczany, a Ukrainian national, was brought to Germany – joining a transport under police guard – on May 1, 1942 upon orders of the Employment Labour Office in Tschudnow. As an Eastern labourer, the labour Office in Regensburg assigned him to do farm work for the farmer Theo Schumacher, namely in Eltheim, where he worked for the entire period. After the liberation by the Americans he left this place of employment and is now living in Lower Bavaria.

 

[83]      Although Mr. Furman does not explain why this declaration was required, he asks that I accept the statutory declaration as reliable and credible because it was sworn under oath. In his view, it establishes a credible story that Mr. Furman was brought to Germany in May 1942 and forced to provide farm labour from then until the end of the war at the farm of Mr. Theo Schumacher.

 

[84]      I do not question that many foreign nationals were forced into Germany or its occupied regions to provide farm labour during World War II. The question is whether this document establishes that Mr. Furman was one of these persons. I do not think that it does.

 

[85]      I have serious concerns with the credibility and reliability of this document, even though it appears to have been sworn under oath. Mr. Furman offered no explanation as to how or why this document was created in 1947 and what purpose it served. I can only speculate, from the surrounding circumstances, that it was prepared for the purposes of some application for social or economic assistance or for emigration to a third country. I also have no idea of who Peter Sikora and Iwan Relonok were and their relation to Mr. Furman. How could these individuals come to know of Mr. Furman’s life? Why was the declaration not sworn by Mr. Schumacher who would have had first hand knowledge of Mr. Furman?

 

[86]      I also note an inconsistency in the declaration. The document states that Mr. Furman “was brought to Germany – joining a transport under police guard – on May 1, 1942 upon orders of the Employment Labour Office in Tschudnow”. Mr. Furman now admits that he was conscripted into the Soviet army in 1940 and was captured by the Germans in 1942. He did not come to Germany “upon the orders of the Employment Labour Office in Tschudnow” as set out in the declaration. This inconsistency casts doubt on the entire document.

 

[87]      Given these problems, I find that the statutory declaration is not credible or reliable evidence that Mr. Furman spent 1942 to 1945 in forced labour on the farm of Mr. Schumacher.

 

[88]      One other document appears to address Mr. Furman’s activities from 1942 to 1945. It is an Application for Assistance made to the P.C.I.R.O. on December 5, 1947. Under the heading “Places of residence for the last 12 years”, Mr. Furman (or someone on his behalf) entered “Eltheim near Regensburg/Germany” for the period from some time (illegible) in 1942 to August 1945”. Later, under the heading “Employment for the last 12 years, including present”, the following is shown:

 

Date	Type of Work	Employer	Town, province and country	Reason of change
35/38	Carpenter	In common farm	Korozany/U.S.S.R.	Volunteer
38/[ ]42	Driver (tractor)	Motor Factory M.T.S.	Korozany/U.S.S.R.	Deposited to Germany
[ ]42/ v45	Farm worker	With farmer Schumacher	Eltheim/Germany	Liberation
v45/ viii45	Farm worker	With farmer Schumacher	Eltheim/Germany	[ ] to other farmer
viii45/ 47	Farm worker	With farmer Reichl	_____/Germany	Living place

 

[89]      There are two obvious inconsistencies between this document and other evidence in these proceedings. The first arises from Mr. Furman’s admission that he was serving in the Soviet army between 1940 and 1942. In the above noted document, he asserts that he was a Driver (tractor), employed by Motor Factory M.T.S. in Korozany during that period of time. The second inconsistency relates to the post-war period. In a “Confirmation”, dated February 5, 1948 and translated from German, Georg Reichl, (Ex. D-5) states that “farm worker Furmann Josef . . . was employed at the farm of Georg Reichl in Ehring from March 1947 until February 5, 1948”. In contrast, the Application for Assistance sets out that Mr. Furman commenced working for Mr. Reichl in August 1945. Given these two inconsistencies, it is difficult to assign any weight whatsoever to the balance of Mr. Furman’s employment history. The Application for Assistance does not establish Mr. Furman’s whereabouts for the period from 1942 to 1945.

 

[90]      Mr. Furman notes that the statements contained in the statutory declaration or the Application for Assistance could easily have been verified at the time. As stated in final argument, Mr. Furman “would have to be one of the dumbest individuals to apply and provide names and locations of people in Germany. It would be so very simple at that particular time for a screening officer to find out whether or not in fact there was a farmer Schumacher in [Eltheim], Germany”. The intent of this submission, as I understand it, is to establish that the claims of being a farm worker for the relevant period are supported by credible documents. Mr. Furman, knowing that his war time experience could be easily checked by contacting Mr. Schumacher, would be unlikely to provide fraudulent documents. Thus, in Mr. Furman’s view, I should infer that these documents are credible.

 

[91]      I do not find this argument persuasive. Given the lack of infrastructure in Germany after World War II, I am certain that verifying information required more than picking up a telephone and calling Mr. Schumacher or Mr. Reichl. In addition, the numbers of displaced persons likely made it difficult for detailed inquiries into documentation. Individual displaced persons who were submitting and relying on fraudulent documentation would have known these facts. Thus, in these circumstances, submitting a fraudulent document of a non-existent farm labour position would not have been an act of “stupidity”; rather, it would have been a calculated risk.

 

[92]      Finally, I note that it was open to Mr. Furman to attempt to obtain at least some evidence to demonstrate that Mr. Schumacher owned a farm in the region claimed. Surely, historical land ownership records could have been checked. Other than two references to Mr. Schumacher – neither of which I have found to be credible or reliable – I have no evidence upon which to conclude that he existed or that he employed Mr. Furman. There is no evidence before me that addresses the obvious problems with Mr. Furman’s documents.

 

[93]      In my view, it is more probable than not that the statutory declaration and the employment history were fabricated to provide Mr. Furman with a wartime background as a farm worker.

 

[94]      Thus, I find, on a balance of probabilities, that Mr. Furman did not work on the farm of Mr. Schumacher for the period between 1942 and the end of World War II. Of course, this does not constitute a finding of what Mr. Furman did between 1943 and 1945; it is merely a conclusion of what he did not do. Accordingly, I will continue by examining the evidence put forward by the Minister that allegedly establishes Mr. Furman’s war time experiences as an SS Guardsman.

 

C.  Guardsman Furmantschuk

[95]      The next phase of my analysis consists of two steps. First I must consider whether the evidence establishes that someone with the name of Furmantschuk was a Trawniki guardsman who engaged in the activities claimed by the Minister. The second part of the analysis (beginning at para. 121 below) involves determining whether Mr. Furman is the same Guardsman Furmantschuk.

 

[96]      It should be made clear that the Minister does not assert that, during this period, Mr. Furman carried out any particular acts of violence. Rather the Minister’s submission relates to Mr. Furman’s alleged engagement and deployment as a Trawniki guardsman.

 

[97]      For both parts of the analysis, the evidence presented by Dr. Tuchel is particularly relevant. Dr. Tuchel testified, as described above, as to the role of the Trawniki Training Camp and its guardsmen. Further, he provided evidence about the important Transfer Lists and other documents that relate to Guardsman Furmantschuk.

 

[98]      No personal identity documents from the Trawniki Training Camp exist for this particular Guardsman. The key references that we have to a Guardsman Furmantschuk are on documents known as Transfer Lists. The Transfer Lists are photocopies of original documents being held in the Central Archives of the Federal Security Service (FSB) of the Russian Federation, in Moscow. The photocopies are of varying quality and, in one case, two separate copies of the same original document have been provided.

 

[99]      All of these documents are similar in content and design. They are typewritten in German, sometimes with German handwriting on some portions. Each document also contains handwritten Cyrillic notations. The lists record the transfer of guardsmen between "Training Camp Trawniki" and other labour camps, concentration camps or SS formations. The documents each contain a list of names and corresponding registration numbers, organized by rank. In some cases, the documents also state the birth date and birth location of the guardsmen. The documents are dated and, in most cases, signed. In Canada (Minister of Citizenship and Immigration) v. Skomatchuk, 2006 FC 730, [2006] F.C.J. No. 928 (QL), after hearing a motion on the admissibility of the Transfer Lists, I determined that the Transfer Lists should be admitted as evidence in these proceedings. As noted in that decision, there are a number of indicia of the reliability of these documents:

 

1. 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;

 

2. 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;

 

3. The lists were prepared by persons with no interest in these proceedings; they were not prepared in contemplation of litigation;

 

4. The documents were prepared contemporaneously with the events, as stated by Dr. Tuchel;

 

5. 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;

 

6. Six of the seven lists are signed by senior officers of the SS or German police, as identified by Dr. Tuchel;

 

7. 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

 

8. The Transfer Lists are consistent with 30 to 40 such lists that have been seen by Dr. Tuchel.

 

[100]    I admitted these documents subject to the condition that Mr. Furman could present further evidence and argument regarding their reliability. The only objection by Mr. Furman related to the fact that the documents had been held by Soviet authorities since the end of the war. The suggestion is that the documents could have been altered in some way. Mr. Furman did not present any evidence as to how or why any such alterations would have been made. There is nothing on the record that would indicate that the Soviet or Russian authorities changed the typewritten German text of the Transfer Lists. Mr. Furman’s objection to the Transfer Lists on this basis is  without substance. Accordingly, I conclude that the Transfer Lists are a reliable source of information on the existence and movement of SS Guardsmen from the Trawniki Training Camp.

 

[101]    In Dr. Tuchel's expert opinion, a person named “Furmantschuk” arrived at the Trawniki training camp on June 13, 1942, and was given the registration number 1538. Obviously, direct evidence of Mr. Furmantschuk’s arrival could have been ascertained from reviewing his Personalbogen. However, no Personalbogen or other direct identity document exists for Guardsman Furmantschuk. Nevertheless, we do know that registration numbers were assigned sequentially beginning at 1 and going up to about 5,000 representing the number of persons who eventually were trained as Trawniki guards. Dr. Tuchel, during his extensive research, had the opportunity to review the Personalbogen of other Trawniki men, two of which were presented into evidence. One had a registration number of 1536, and one had a registration number of 1932 and both arrived at Trawniki on June 13, 1942. Thus, Dr. Tuchel concluded that a guardsman who was given a number that falls between those two numbers arrived on the same day as guardsmen 1536 and 1932. Based on this evidence, I find that Josef Furmantschuk arrived at Trawniki on June 13, 1942 with a group of other men and was assigned Registration No. 1538.

 

[102]    Additional information may be gleaned from a review of the Personalbogen of Guardsmen No. 1536 and 1932. The Personalbogen of these individuals indicate that they had served in the Red Army. Based on this evidence, Dr. Tuchel concluded that Mr. Furmantschuk would also have come to Trawniki as a prisoner of war from the Soviet Army.

 

[103]    The first Transfer List (April 1943 Transfer List) referencing Josef Furmantschuk shows that he and other members of the 2nd Company were transferred from Trawniki to Kommando Warsaw on April 7, 1943. At line 118 of this Transfer List, I note the inclusion of

“F u r m a n t s c h u k, Josef” and a registration number 1538.

 

[104]    The significance of the transfer date should not be lost. The brutal evacuation of the Warsaw Ghetto is described above. Dr. Tuchel’s evidence was that the Trawniki men on this April 1943 Transfer List were involved in evacuating the ghetto (Tuchel Report at 35). The Stroop Report is very clear as to the involvement of the Trawniki guardsmen at Warsaw. For example, the report lists those guardsmen who were wounded and killed. One of those killed was Guardsman Odartschenko whose name and registration number 1573 were listed on the same April 1943 Transfer List as that of Guardsman Furmantschuk. In this assignment, the guardsmen were fighting, they were collecting Jews and bringing them to collection points and to the trains and from the trains, and they were guarding the trains, which brought the Jews of Warsaw to the Treblinka extermination camp.

 

[105]    The second Transfer List (May 1943 Transfer List) provides evidence of a transfer of guardsmen on May 17, 1943. It is a list from the SS and police leader Lublin, Trawniki Training Camp to transfer men to the Kommando Lublin of the Trawniki Training Camp Lublin. At number 5, in German typewriting, is “Formanziuk, Josef” with entries of a date and place of birth shown as 8.2.19 in Korotschinki/Shitomir; the Registration number is 1538.

 

[106]    This list, Dr. Tuchel testified, was created to transfer men to the Lublin Command of the Trawniki Training Camp. It was all part of the Trawniki Training Camp system. Lublin, Dr. Tuchel testified, is a city in eastern Poland. At that time, there were labour camps at Lublin guarded by SS Guardsmen from Trawniki.

 

[107]    The third Transfer List (August 1943 Transfer List) is a list of men transferred from the Lublin Command of the Trawniki Training Camp to the labour camp Bialystok; it is dated August 14, 1943. Beside number 65 is listed “F o r m a n t s c h u k, Josef (1538)”. Dr. Tuchel testified that the document was important because you could see from the bottom of the list that the men were not only sent to Lublin, but also arrived at Lublin. On one side is written “duly transferred” (as translated); on the other “duly accepted” (as translated).

 

[108]    Dr. Tuchel’s testimony was that these guardsmen were sent to Bialystok to give support to the ghetto cleansing. In late August 1943, Bialystok was one of the last remaining ghettos in Poland. The Jews were rounded up, sent to a collecting point, and then sent to labour extermination camps (Tuchel Report at 34-41).

 

[109]    The August 1943 Transfer List includes a cover letter. The letter, dated August 20, 1943, was sent with a copy of the list to the camp in Trawniki. The letter states that Mr. Basener, head of the Lublin Command, sends a copy of the transfer list of the men who were transferred on August 15, 1943 from the Lublin Command to the command at labour camp Bialystok.

 

[110]    The final Transfer List (October 1943 Transfer List) shows a transfer of 140 Trawniki guardsmen to the concentration camp at Flossenbürg, in Bavaria, near the Czech border, some 800 kilometres from Trawniki. Flossenbürg was one of the major concentration camps in the German Reich. Inmates were forced to work as slave labour for the Nazis, in large stone quarries or many metres underground where armaments were being assembled . The document is dated October 1, 1943 and records, at number 61 on the list, “F u r m a n t s c h u k, Nosef” with a date and place of birth of 8.2.19 in “Korotsch __ki”. The registration number is listed as 1538. Although the print is faint and difficult to read, I am satisfied that this information is a correct reading of the document. Further, I have the confirmation of Dr Tuchel, who saw the original in the FSB Archives, that the registration number is 1538.

 

[111]    This transportation appears to have been part of the Nazi decision to mix ethnic guards with German units in an effort to decrease desertion by the ethnic guards, as discussed above beginning at para. 66. At Flossenbürg, the Trawniki guards, Dr. Tuchel testified, were mixed with the Reich concentration camp guards. They were used as guards to guard prisoners in the camp while at work or on labour details, returning during roll call around the camp and trying to prevent their escapes.

 

[112]    There is clear evidence that this group of guardsmen arrived at the camp at Flossenbürg. A Certificate, signed by the chief of the guards in Flossenbürg, SS Hauptsturmführer Ludwick Budenziek, shows confirmation of receipt of 140 Trawniki men under the command of SS Oberscharführer Majewski. The transport arrived on October 7, 1943.   

 

[113]    The next document is “Weapon and Inventory Book No. 1, Kommandantur, Concentration Camp Flossenbürg” from the year 1944. The weapons inventory book consists of a list of weapons and sets out to whom they were issued. In this book, Dr. Tuchel identified the names of 135 out of the 140 Trawniki guardsmen included in the October Transfer List. The fourth page lists bayonets; on this page can be seen the name “F u r m a n t s c h u k”, as a part of a guard formation. This guardsman received a bayonet on October 8, 1943; as translated, this record states that "Furmantschuk received a bayonet on October 8, 1943." At page 51 of the inventory book, there is reference to “T u r m a n t s c h u k” holding a rifle and a bayonet as of April 1, 1944. Although the name that appears is “Turmantschuk”, this appears to be no more than a typographical error; the “Furmantschuk” referred to at page 4 of the book and the “Turmantschuk” on page 51 are the same person. Dr. Tuchel testified that there were no other names in the book which sounded in any way like Furmantschuk or Turmantschuk or any other spelling.

 

[114]    In summary, reading this inventory book together with the Transfer Lists and related corroborating documents, this evidence demonstrates that a number of men, including Furmantschuk, Registration No. 1538, left Trawniki on October 1, 1943 and arrived at Flossenbürg concentration camp on October 7, 1943. Guardsman Furmantschuk was equipped with a bayonet on October 8, 1943 and, as of April 1, 1944, was in possession of both a rifle and bayonet.

 

[115]    While each of the Transfer Lists contained the guardsman’s registration number, no such number is referred to in the weapons inventory. This was explained, in a very logical way, by Dr. Tuchel. He stated that there was no reference to the Trawniki registration number in the weapons book because these guardsmen were now part of concentration camp guard system in Germany. Only the Trawniki guard administration in the General Government used registration numbers.

 

[116]    Dr. Tuchel also provided a cogent explanation for the almost total absence of personal identification documents for Guardsman Furmantschuk. He testified that he has never seen a Personalbogen from the concentration camp Flossenbürg. In the face of pending defeat, the Nazi regime made every effort to destroy records that would implicate concentration camp soldiers and guards. As one of the last camps liberated by the Allies (the Americans, in this case), those Nazis responsible for the Flossenbürg camp had sufficient time to destroy almost all records; very few survived.

 

[117]    One internal inconsistency in these documents is the spelling of the name of the guardsman that the Minister alleges is Mr. Furman. References in the Transfer Lists and Weapons Inventory show the following:

Reference	Name Shown	Reg. No.	Birth Date	Birth Place
April 1943 Transfer List	Josef Furmantschuk	1538	-	-
May 1943 Transfer List	Josef Furmanziuk	1538	8.2.19	Korotschinki/ Schitomir
August 1943 Transfer List	Josef Formantschuk	1538	-	-
October 1943 Transfer List	Nosef Furmantschuk	1538	8.2.19	Korotsch - - ki …
Weapons Inventory	Furmantschuk and Turmantschuk	-	-	-

 

 

[118]    When questioned about the variation in spellings, Dr. Tuchel explained that the Trawniki officers were dealing with people whose names came from one of four different languages - German, Russian, Polish and Ukrainian – and two different alphabets - Cyrillic and Roman. Dr. Tuchel testified that there is more than one way to translate names from one language or alphabet to another and that no particular method is wrong or right. In his estimation, the spelling differences are not surprising, since the lists were prepared by Germans dealing with guardsmen who may not have spoken the German language. It was his testimony that the registration number system existed in the Trawniki camp system for this particular reason; it allowed German officers and officials to accurately track the Trawniki men without having to worry about the variation in spelling. Dr. Tuchel also testified that the appearance of birth dates and locations on the later Transfer Lists correspond with the movement of the guards from the Trawniki camp system to the German system. In the German system, guards’ identities were verified by their birth date and birthplace, not by identification numbers. The registration numbers assigned at Trawniki would have had no meaning to officers outside of that system.

 

[119]    In this context, several other consistent factors compensate for the spelling variations. First, the spellings themselves are phonetically similar. Second, Dr. Tuchel testified that, in his review of all the transfer lists relating to the Trawniki Training Camp, he did not encounter another surname that was similar to Furmantschuk. Third, and most importantly, the registration number 1538 is consistent among the Transfer Lists. Given the importance that the German officers in the Lublin region put on the registration number, and Dr. Tuchel’s testimony that no registration number was ever assigned to more than one guardsman, I can conclude that the names Josef Furmantschuk, Josef Formanziuk, and Nosef Furmantschuk on the four lists refer to one person.

 

[120]    Beyond the three transfer lists and the weapons inventory, there are no further explicit references to Guardsman Furmantschuk in the historical documents. Thus, I am unable to reach any clear conclusions as to what this person did between April 1, 1944 and the end of World War II. Nevertheless, with the meticulous assistance of Dr. Tuchel and upon my careful review of the evidence, I am satisfied that, on a balance of probabilities, there was a Guardsman Josef Furmantschuk who:

 

(a)    was a Soviet prisoner of war;

 

(b)   trained as an SS Guardsman at the SS Trawniki Training Camp, commencing in April 1942;

 

(c)    was deployed as a guardsman to the Warsaw Ghetto in April 1943 and to the Bialystok Ghetto in August 1943;

 

(d)   was integrated into the SS Death’s Head Guard Units as of 1943; and

 

(e)    was a concentration camp guard in the concentration camp at Flossenbürg, Germany from October 7, 1943 to at least April 1, 1944.

 

D.  Identity of Guardsman Furmanchuk

[121]    My finding that there was a Guardsman Furmantschuk who trained at the SS Trawniki Training Camp and served as a guard during the Warsaw and Bialystok Ghetto cleansings and as a guard at Flossenbürg concentration camp does not dispose of this inquiry. The next question is whether this is the same individual who is now the Defendant in these proceedings. I have determined that Mr. Furman was born Iosef Furmanchuk. Is this the same person as Guardsman Furmantschuk who was assigned Registration No. 1538?

 

[122]    There are a number of facts that support a conclusion that Mr. Furman was Guardsman Furmantschuk, Registration No. 1538.

 

[123]    The first and most obvious link is the name. The person born “Iosef Furmanchuk” shares a name that it almost identical with Guardsman Josef Furmanstchuk. As discussed above, this spelling variation is of little import.

 

[124]    The second area of close correlation is in the place of birth. In the May 1943 and October 1943 Transfer Lists, we have two references to a place of birth of “Korotschinki/ Schitomir” and “Korotsch - - ki …”. In the agreed statement of facts, Mr. Furman’s place of birth is given “Korochenki, Chudniv, Zhitomir”. Once again, the spelling variations are minor and likely related to translation from Cyrillic to Roman writing.

 

[125]    Next, we can see a correlation between the backgrounds of Mr. Furman and Guardsman Furmantschuk in 1942. On Mr. Furman’s admission, he was a Soviet prisoner of war captured by the Germans in 1942. Guardsman Furmantschuk was almost certainly a Soviet prisoner of war. This Guardsman entered the Trawniki Training Camp on June 13, 1942 at the same time as a large number of recruits who had been prisoners of war.

 

[126]    I also have considered the plausibility of a Soviet prisoner of war, such as Mr. Furman, becoming an SS Guardsman. As discussed above, beginning at para. 49, the German authorities, by 1941, were actively recruiting Soviet prisoners of war to serve as guards. In my view, it is very plausible that Mr. Furman, a Soviet prisoner of war, would serve as a guard for the German SS.

 

[127]    To this point, the evidence is compelling that Mr. Furman and Guardsman Furmantschuk are one and the same person. However, there is one further evidentiary issue that must be addressed – the date of birth. Mr. Furman has consistently stated his date of birth as March 8, 1919. For Guardsman Furmantschuk, a birth date of February 8, 1919 is set out on two different Transfer Lists.

 

[128]    I am not persuaded that this one month difference in date is material. I acknowledge that it cannot be readily explained. However, the year of 1919 and 8^th day of the month do match the known birth date of Mr. Furman. Further, the Church records for Korochenki (referred to above at para. 74) do not list anyone with a similar name born on February 8, 1919. In light of this and, more importantly, in view of the other evidence linking Mr. Furman to Guardsman Furmantschuk, I conclude that is more likely than not that the birth date of February 8, 1919 set out in the two Transfer Lists was entered in error.

 

E.  Conclusion

[129]    In conclusion on the issue of Mr. Furman’s activities during World War II, I am not persuaded that Mr. Furman was a farm worker in Germany for the period 1942 to 1945. I find, on a balance of probabilities, that Mr. Furman and Guardsman Furmantschuk are one and the same. That is, Mr. Furman was an SS Guardsman who:

 

(a)    was a Soviet prisoner of war;

 

(b)   trained as an SS Guardsman at the Trawniki Training Camp, commencing in April 1942;

 

(c)    was deployed as a guard to the Warsaw Ghetto in April 1943 and to the Bialystok Ghetto in August 1943;

 

(d)   was integrated into the SS Death’s Head Units as of 1943; and

 

(e)    was a concentration camp guard in the concentration camp at Flossenbürg, Germany from October 7, 1943 to at least April 1, 1944.

 

VII.  Immigration of Mr. Furman to Canada

[130]    The path taken by Mr. Furman in his journey from post-war Germany to Canada is of critical concern to these proceedings. To assist the Court, the Minister filed 1834 documents, consisting of documents and communications at every level of Government. These included: Cabinet Directives; Orders-in-Council; Minutes of the Security Panel (a specially formed interdepartmental advisory council to Cabinet, created in 1946); internal communications within, from and to the relevant government departments; and, memoranda and other communications to and from the RCMP administration and officers in the field. In the following sections of these reasons, I refer to only a few of these documents to illustrate the points being made or to support the evidence of Dr. Avery.

 

[131]    The Minister also presented Dr. Donald Avery, an historian, to speak to immigration policy and practices in Canada. He was qualified as an expert in the following areas:

 

• pre-World War II and post-war immigration policies, and regulations and Orders in Council affecting those policies;

 

• Canada's post-war immigration policy systems and its implementation;

 

• the immigration selection process, including the role of the Royal Canadian Mounted Police (RCMP) in security clearing and screening prior to, during and after World War II; and

 

• the interaction between Canada and European refugee organizations, including the United Nations Relief and Rehabilitation Administration. (UNRRA), the Intergovernmental Committee on Refugees, the Preparatory Commission for the International Refugee Organization, and the International Refugee Organization (IRO).

 

[132]    Dr. Avery prepared a report entitled “A Study of Canadian Immigration Policy and Security Screening, 1945-1956: A Background Report Prepared for the Crimes Against Humanity and War Crimes Section, Department of Justice (Josef Furman Case)”, dated March 2006 (the Avery Report). This report was filed as an exhibit in these proceedings.

 

[133]    Mr. Furman did not dispute any of Dr. Avery’s testimony; the words of his counsel were clear and unequivocal on that point when he stated, “I am going to ask that you accept his evidence at the end of the day without reservation” (emphasis added). Mr. Furman presented no evidence or witnesses to speak to immigration policy or practices.

 

[134]    I have concluded that Mr. Furman, on a balance of probabilities, was a concentration camp guard. The Minister argues that this fact alone would have made Mr. Furman inadmissible to Canada in 1949. In brief, the Minister’s submissions are that SS concentration camp guards were an absolute prohibited class. According to Dr. Avery’s evidence, such persons were considered the most “odious” type of person with respect to an examination of their war time activities. Between 1945 and 1955, the Minister asserts that there was an absolute prohibition on their entry into Canada, with no discretion as to whether or not an RCMP officer could consider them to be admissible to the country based on coercion, on compassionate grounds or on the fact that they may have been of lower rank. Accordingly, the Minister’s position is that Mr. Furman had to have misrepresented his World War II activities from immigration officials in order to gain entry to Canada in 1949.

 

[135]    There are a number of subsidiary issues involved in this crucial determination:

 

• How had Canada’s immigration policy evolved to the point of time in question?

 

• In 1949, in Germany, would Mr. Furman have been the subject of a security screening by an RCMP Officer?

 

• In 1949, was Canada’s policy one that excluded concentration camp guards from admission to Canada?

 

• In 1949, in Germany, did Canadian security officials follow the policy of exclusion of concentration camp guards?

 

• In 1949, in Germany, would Mr. Furman have been asked about his wartime activities?

 

A.   Mr. Furman in post-war Germany

[136]    From the Agreed Statement of Facts and from corroborating documentary evidence, we know that, following the end of World War II, Mr. Furman was living in the Regensberg District of Germany. As described by Dr. Avery in his Report at 25-27, he would have been one of two to three million Ukrainians displaced during the war. The United Nations recognized these persons as “Displaced Persons”. By 1946, when the United States and the United Kingdom refused further cooperation with the USSR on forced repatriations, there were about 250,000 Ukrainian displaced persons remaining in Austria and Germany. About two-thirds of these Ukrainians were living in UNRRA camps, primarily those located in the United States military zone of Bavaria. The others – “free living DPs” – were directly involved in the German or Austrian economies. One survey carried out in 1948 showed that there were 44,097 Ukrainians residing in 49 camps in the American zone and 11,165 in private dwellings. Mr. Furman was a “free living DP”, meaning, as I understand it, that he did not live in a camp or receive any significant financial assistance from UNNRA or its successor organization, the IRO.

 

[137]    In very simple terms, the goal of the UNRRA and the IRO was to find homes for all of the displaced persons. Between 1947 and 1951, Canada accepted over 30,000 Ukrainian displaced persons and refugees. Most were drawn from the UNRRA/IRO operated camps. For all Ukrainians hoping to come to Canada, including those living outside the camps, the first step was to obtain IRO approval. Dr. Avery testified that:

 

. . . if you want to immigrate, you have to go through the IRO system. You have to have a letter from the Commandant, the closest camp to you. It was mandatory. You had to go through the IRO eligibility process. Even though you weren’t in the camp, you had to get an IRO permit or identity card you would have to be screened.

 

[138]    As evidenced by a stamp on his IRO “Certificate of Identity for the purpose of immigration to Canada”, Mr. Furman was approved by the IRO for immigration to Canada on June 27, 1949.

 

[139]    To obtain authorization to come to Canada, Mr. Furman obviously must also have gone through some process related to Canadian immigration officials. The question that is important to these proceedings is what that process and its possible outcomes would have been. For example, did the obtaining of an IRO Identity Certificate obviate the need for Canadian security screening?

 

B.  Evolution of Canada’s Immigration Policy

[140]    As evidenced by a number of documents provided by the Minister and referred to by Dr. Avery, Canada’s policy on immigration prior to World War II was simple. Beginning in 1931, it was in effect a policy of exclusion. Only a very narrow class of foreign nationals were permitted to come to Canada (Order-in-Council P.C. 695, March 21, 1931).

 

[141]    The end of World War II brought about changed circumstances. Canada was called upon to accept some of the displaced persons and, beginning in 1946, responded to that need. A review of the gradual revision to Canada’s policy demonstrates, however, that the relaxation of the policy of exclusion was carried out only in a tightly controlled fashion. One early example of the opening up of admissibility involved family members of Canadians under the “Close Relative Scheme”. Another was the “Bulk Labour Scheme” intended to bring persons into Canada to fill labour shortages.

 

[142]    Thus, I can say, with confidence, that the situation in 1949 was one of controlled admissibility of displaced persons. Only after agreement, at the highest levels of Government, were particular classes of persons considered for immigration to Canada. Throughout this gradual opening of Canada’s borders, two themes are consistent and unchanging. The first is that the RCMP officers in the field were responsible for security screening of displaced persons and were carrying out this function through individual screening interviews. The second is that certain classes of persons were not to be admitted to Canada. I will proceed to consider each of these.

 

C.  Role of RCMP

[143]    The role of the RCMP in the screening of Mr. Furman must be determined. I did not have the benefit of hearing testimony from an RCMP Officer who interviewed Mr. Furman or other immigrants in Germany in 1949. Mr. Furman argues that, absent such direct evidence, the Minister has failed to meet its evidentiary burden. The problem with this assertion is that Mr. Furman ignores the documentary evidence from which inferences may be drawn. When supported by clear and compelling evidence, it may be possible to determine, on a balance of probabilities, what screening procedure was followed for Mr. Furman.

 

[144]    Dr. Avery testified that, after the war, the opening up of immigration was always subject to the proviso that only those granted a clearance from the RCMP would be eligible for landing to Canada. This is evidenced by a Memorandum to Cabinet, dated October 15, 1945, from J. Allison Glen, Minister of the Department of Mines and Resources. RCMP documents and reports indicate that they took this role extremely seriously, with an insistence on rigorous screening that eventually raised the ire of the IRO, for not accepting its own security clearances, and the Immigration Branch of the Department of Mines and Resources, who chafed at the inefficiency of the RCMP.

 

[145]    Throughout the documents, the continued role of the RCMP in conducting the required security screening was never in doubt (for example, see the Confidential Memorandum dated December 27, 1946, from Assistant Commissioner Nicholson of the RCMP to S/Sgt W.W. Hinton, Canada House, London; and Cabinet Directive, Circular No. 14, “Rejection of Immigrants on Security Grounds”, October 28, 1949). Dr. Avery testified that there was never any assumption that the Canadian Government was going to permit any kind of international organization to ultimately carry out its screening responsibilities.

 

[146]    There is no evidence whatsoever that Canadian immigration officials relied on the security screening of displaced persons carried out by the IRO. Indeed, the testimony of Dr. Avery was that Canadian officials were concerned about the prevalence of fraudulent IRO documents. Support for this statement is seen in a report dated March 30, 1948 entitled “Security Screening of Prospective Immigrants”. This report, prepared by the RCMP, was sent under a cover memorandum to members of the Security Panel and, inter alia, referred to problems with IRO documents. Again on May 10, 1948, a comment was made by RCMP Commissioner Wood in a memorandum to Mr. H.L. Keenleyside, Deputy Minister, Immigration Branch, Department of Mines and Resources:

 

I think the efforts of our Overseas personnel to check as fully as possible the backgrounds of applicants is perhaps best exemplified by recent reports which we have had from our men in Europe. These indicate that the Canadian Security Officers are unpopular with the P.C.I.R.O. and with the D.P.’s generally due to the fact that they refuse to accept the recommendations of the P.C.I.R.O. without full investigation made by themselves.

 

[147]    The RCMP screening system was not without its problems or controversy. It was plagued with backlogs, although mostly at the London office; the situation in the continental displaced person camps was, by 1949, “satisfactory” (Immigration Branch report titled “Overseas Commissioner: Security”, dated June 20, 1949). As early as January 1947, as the screening system was just being implemented, it was apparent that the RCMP lacked the infrastructure and manpower in Europe to screen the large number of expected displaced persons. It was decided at that time that screening could be waived for certain near relative immigrants from friendly Western European countries, but would remain mandatory for all others and especially for displaced persons coming from former enemy territory (Germany, Austria, and Italy) (See Memorandum from Director Joliffe to Minister J.A. Glen, dated January 27, 1947; and Memorandum from Inspector Parsons to the D.C.I, dated January 23, 1947).

 

[148]    With respect to the practice of RCMP Officers, we know, from a number of documents, that the policy schemes were communicated to the officers in the field and implemented. For example, on April 10, 1947, Inspector Parsons sent detailed instructions to Sgt. Hinton in London, who at that time oversaw the entire security screening system in Europe. Hinton was reminded that “immigrants residing in Germany, Austria, and Italy, previously enemy territory” would have their applications for immigration withheld, “pending a clearance from this Force.”

 

[149]    Reports from the field in that same year indicate that RCMP Security Officers were having a difficult time fulfilling their role. One reason was the time consuming nature of the work, but another reason was the lack of background documentation available for displaced persons. Sgt. Murray’s correspondence indicates that, because of the lack of reliable records, oral interviews were viewed as extremely important. He stated in a March 12, 1947 report:

 

…[Sgt.] Syron and I can carry on with the screening of all persons on approved lists as they arrive in the camps. There are so few records available to check against these people so I have been interviewing everyone on the list and that to my mind is the only way to screen them. [Emphasis added.]

 

[150]    A very unequivocal statement of the role of the RCMP is found in a report dated March 30, 1948 entitled “Security Screening of Prospective Immigrants”. This report, prepared by the RCMP, was sent under a cover memorandum to members of the Security Panel. This report sets out a history of security screening to that date. This report makes it clear that, while some exceptions applied, all “displaced persons were being examined verbally in their camps”. The report also sets out that “[a]cceptance or rejection by the security investigator is final”.

 

[151]    Some further reports from the summer of 1949 – the same time that Mr. Furman immigrated to Canada – indicate that mandatory screening was still the rule in Germany. The June 20, 1949 report from the Immigration Branch, referenced above at para. 147, stated that “[p]roposed immigrants in displaced persons’ camps are screened by the security officers attached to our inspectional teams.”  In a memorandum to the Minister, dated July 7, 1949, Commissioner Wood wrote that:

 

In Germany our men screening D.P’s actually interview the individual. They get some information from Intelligence Agencies but have to depend a great deal on their personal interview. If they find no grounds for rejection, they let the man come along.

 

[152]    In sum, the evidence is consistent and uncontested. As of 1949, each displaced person who applied to come from Germany to Canada underwent a security screening by an RCMP Officer. While I would accept that a few individuals may have slipped through without an interview, such exceptions would likely be rare. Accordingly, I find that it is more probable than not (indeed, almost certain) that Mr. Furman was interviewed and screened by an RCMP Officer.

 

D.   RCMP Security Screening Proceedure

[153]    I continue by considering what questions would have been asked of Mr. Furman by the RCMP Officer in Germany.

 

[154]    When Dr. Avery was asked whether there was any question in his mind whether during the security process, a person would have been asked about his activities during the war, his response was the following:

 

The guidelines were such that it would be almost inconceivable that those questions about war time activity would not have been asked. Because we don't have a complete record of all of those interviews, as a historian, I can't say 100 per cent, but it would be highly unlikely, extremely unlikely.

 

[155]    This response is consistent with a number of the filed documents. One example is contained in a memorandum dated May 10, 1948, from Commissioner Wood to the Deputy Minister, Immigration Branch, Department of Mines and Resources. In that document, Commissioner Woods states the following:

 

We are interested mainly in obtaining a satisfactory answer to two questions: first, what were the applicant’s sympathies and activities during the late war, and second, is he sympathetic to Communism or any other form of subversive influence opposed to our democratic way of life.

 

[156]    Similarly, a memorandum from Deputy Minister Keenleyside to the Cabinet Committee on Immigration Policy, dated September 26, 1947, dealt extensively with the problem of potential immigrants who had served in the armies of enemy nations during the war. Mr. Keenleyside suggested a number of security guidelines, including the following:

 

… (d) that, regarding persons other than enemy aliens now seeking admission, the fact of having served in the armed forces of their own country during the war shall not prevent their admission unless they are recorded on the official list of war criminals and are known to have violated the international rules of warfare;

 

(e) that, regarding persons of neutral or allied countries now seeking admission, the fact of having served in the armed forces of His Majesty’s enemies during the war shall debar them unless they can establish that such service was furnished under physical compulsion…

 

These suggestions were accepted by Cabinet on October 7^th, 1947.

 

[157]    The documents discussed above indicate that a crucial part of security screening was examining a potential immigrant’s activities during the war. It is difficult if not impossible to conceive of how a Security Officer could discern an immigrant’s potential security risk (or lack thereof) without inquiring about the recent years of his life. I cannot but conclude that, during the interview, the RCMP Officer would inquire directly about the displaced person’s whereabouts and activities during the war.

 

E.  Grounds for Rejection

[158]    From the inception of the overseas screening system in early 1947, RCMP Security Officers received a mixture of verbal and written instructions from headquarters, in combination with occasional guidelines issued by Cabinet or through Orders-in-Council. Although immigration policy evolved continuously after the war, it appears that the security grounds for rejection did not undergo any significant change between 1947 and 1950. An exact determination of those grounds has been difficult, because they were rarely recorded in written form, except in the most general terms. This practice reflected the strong concerns of the RCMP that the grounds for rejection should not be known to potential immigrants. The RCMP were opposed to informing rejected immigrants that they had been screened out on security grounds and they long resisted distributing a list to the Immigration Branch (see for example a memorandum by RCMP Assistant Commissioner Nicholson to the RCMP Special Branch, dated July 22, 1948).

 

[159]    However, at least one written list of rejection criteria was prepared by RCMP Headquarters, in consultation with the Immigration Branch, and sent to officers in Europe. Titled “Screening of Applicants for Admission to Canada”, and dated Nov. 20, 1948, the list included the following “Prohibited Groups” that:

 

…if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission:

 

[…]

 

(b) Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (NON Germans).

 

(c) Member of Nazi Party.

 

[…]

 

(h) Evasive and untruthful under interrogation.

 

(i) Failure to produce recognizable and acceptable documents at the time of entry and residence in Germany.

 

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

 

(k) Collaborators presently residing in previously occupied territory.

 

[160]    During preparation of the list, Inspector Parsons commented on the inclusion of the “collaborators” group, writing “this type of person would appear to be definitely undesirable as an immigrant and we feel should be included” (Letter to Major Wright, Sept. 23, 1948).

 

[161]    In the notes from an “Informal Departmental Meeting on Immigration Matters” on February 6, 1946, “Collaborating with the enemy during the war of 1939-1945” is included as “evidence of an unsatisfactory security back ground”. The Notes continued to state that the list of exclusions was not final or exhaustive.

 

[162]    Overall, the objective was to deny admission to any person who, “from their known history and background, would be unlikely to adapt themselves to the Canadian way of life and our system of Democratic government”. These specific words were contained in  “Orders for Personnel Employed Abroad on Visa Control Duties”, sent from S.T. Wood, Commissioner, to S/Sergeant Hinton on October 23, 1946. These Orders once again confirmed the role of the RCMP screening officer in assessing admissibility.

 

[163]    An awareness of the role of concentration camp guards arose during the development of Canada’s postwar security guidelines. One of the first direct references in the documentary evidence is contained in a Paper entitled “The Nazi Party, its Formation and Affiliated Organizations”. This paper was prepared by the Criminal Investigations Section of the RCMP and provided to A.L. Jolliffe, Director of Immigration of the Department of Mines & Resources, and forwarded to him under cover letter dated July 25, 1946. In that paper, the SS Totenkopf-Verbande (Death’s Head Unit) was described in the following terms:

 

The SS Totenkopf-Verbande was a special division of the Waffen SS whose duties were confined to the guarding of concentration camps and as police troops in the Occupied Territories. Members of this organization were of a particularly loathsome and brutal type.

 

[164]    Canadian policy was strongly influenced from the beginning by Allied Control Authority Coordinating Committee Directive No. 38, dated October 14, 1946 and entitled “Arrest and Punishment of War Criminals, Nazis and Militarists and the Internment, Control and Surveillance of Potentially Dangerous Germans”. The Allied Control Authority was the military governing body representing the Allied Powers who controlled Germany after the war. Their directives served as policies and regulations for, among other things, treatment of refugees and displaced persons under the UNRRA and IRO programs. Under Directive No. 38, war criminals and collaborators were divided into several categories, including: Major Offenders; Offenders: Militarists; Profiteers; and others. Of most significance, the Major Offender category included “ [a]nyone who, in any form whatever, participated in killings, tortures, or other cruelties in a concentration camp, a labour camp, or a medical institution or asylum;” or “[a]nyone who, for personal profit or advantage, actively collaborated with the Gestapo, SD, SS, or similar organizations…”. 

 

[165]    There are numerous references to Directive No. 38 in the Canadian immigration documents, showing a consistent concern among Canadian government members and RCMP officials for Nazi war criminals and collaborators. Major Offenders, as defined by Directive No. 38, were not to be admitted to Canada. Concentration camp guards and collaborators were Major Offenders.

 

[166]    Having reviewed the documentary evidence, I am persuaded that it was unlikely that anyone – either in a policy role or as an RCMP Officer in the field – would consider a concentration camp guard to be admissible to Canada. As stated by Dr. Avery,

 

Certainly anyone who was connected with a Nazi organization and especially a concentration camp guard would have been seen as completely inimical to the Canadian way of life and to Canada’s system of democratic government.

 

[167]    Correspondence and documents of that time indicate that, not only was this the policy of Canadian officials, but this policy had been communicated to and was being carried out by the RCMP Officers in the field.

 

F.  Conclusion

[168]    In conclusion, when the documentary evidence, the Avery Report and Dr. Avery’s oral testimony are considered as a whole, I am satisfied, to a high degree of probability, that the following captures the elements of security screening of a person such as Mr. Furman, in 1949:

 

• Both Government policy and RCMP practice were that an RCMP Officer, in the field, was to conduct a security screening of all displaced persons;

 

• In Germany, the RCMP did not rely on the IRO screening, but conducted their own screening which included personal interviews;

 

• The RCMP Officer asked questions with the goal of verifying the applicant’s wartime activities; and

 

• Being an SS concentration camp guard would have been grounds for rejection.

 

[169]    It is worth noting that these findings accord with those of  Justice McKay, in Odynsky, above at para. 141. In that case – also a citizenship revocation proceeding – Justice McKay was dealing with a similar fact situation. That is, Mr. Odynsky, who also arrived in Canada from Germany in 1949, was alleged to be a concentration camp guard. With respect to screening procedures, Justice McKay concluded as follows:

 

In my view, there is no doubt that at the highest level of government, Cabinet intended that security screening of prospective immigrants be undertaken with respect to those seeking to come to Canada from Germany, including displaced persons, in the years 1945 to 1950, and indeed thereafter. The intention was implemented in the field by arrangements made between immigration authorities and the R.C.M.P. under the direction of Cabinet. On the evidence from former immigration officers, Messrs. Martineau, St. Vincent, and Kaarsberg, arrangements were in place for security screening of applicants for immigration in Germany in 1949. Those required an interview by an R.C.M.P. officer, whose concern was security screening, as the first step in dealing with an applicant for immigration, including a displaced person.

 

While I did not have the benefit of the testimony of former immigration officers, as did Justice McKay, the documentary evidence before me on the screening policy and procedures is uncontested and persuasive and leads me to the same conclusions.

 

VIII.  Screening of Mr. Furman

[170]    Having concluded that it is more likely than not that Mr. Furman was subjected to a security screening conducted by a member of the RCMP and that the RCMP Officer would have questioned him about his wartime activities, the next question is what Mr. Furman told the Officer. Did he tell the RCMP Officer that he was born “Iosef Furmanchuk”, that he was a Soviet prisoner of war and that he was an SS Guardsman? Or, did he tell the Officer that he remained in Ukraine until 1942 after which he was a farm labourer in the Regensberg District of Germany? No notes exist to directly answer this question. However, logical inferences can be drawn from the evidence before me.

 

[171]    I first refer to three documents that were undisputedly prepared shortly after World War II and which set out Mr. Furman’s explanation of his wartime activities. These are:

 

• the Statutory Declaration of Peter Sikora and Iwan Relonok sworn November 27, 1947, referred to above at 82;

 

• the Application for Assistance made to the P.C.I.R.O. on December 5, 1947; 

 

• the A.E.F. D.P. Registration Record for “Josyf Furman”, which, although undated, was a document prepared and used for Mr. Furman’s application to come to Canada.

 

[172]    Each of these documents uses the name “Furman”. Both the Statutory Declaration and the Application for Assistance describe Mr. Furman’s 1942 to 1945 time as being spent farming on the land of Mr. Schumacher. I have concluded that this story was likely fabricated. In the final document in this group, Box 18 poses the question “Do you claim to be a prisoner of war?” The response entered is “No”. Mr. Furman now admits that he was a prisoner of war. It is highly unlikely that, having given this background for purposes of these documents, Mr. Furman would have presented a different story of his wartime experiences to any official who interviewed him for immigration to Canada. Had he changed his story at that point – after relying on the documents referred to – a completely new story would surely have raised concern with any security or immigration officer.

 

[173]    Further, Mr. Furman was admitted to Canada. He received the necessary security clearance from the RCMP Officer. As stated by Dr. Avery, had Mr. Furman admitted that he was a concentration camp guard “I think one could say almost 100 percent in my opinion they would have been rejected”. The fact that he was admitted to Canada is strong evidence that he did not tell the RCMP Officer of his background.

 

[174]    On a balance of probabilities, I find that Mr. Furman told the RCMP Officer, when asked about his wartime activities, that he had been a farmer. For reasons that I have set out above, I am not persuaded that this story was true. Rather, I find that: Mr. Furman was born “Iosef Furmanchuk”; he served in the Soviet army until captured in 1942; he became an SS Guardsman in 1942; he participated in the evacuation of the Warsaw and Bialystok ghettos; and, served as a member of the SS Death’s Head Unit at the Flossenbürg concentration camp. Other than the change of name, which I discuss directly below, I am satisfied that, on a balance of probabilities, Mr. Furman disclosed none of his background to the RCMP Officer.

 

IX.  Failure to Disclose True Name of Birth

[175]    The Minister submits that the evidence demonstrates that persons seeking to come to Canada in the relevant time period were rejected for “False Presentation; - use of false or fictitious name” (Memorandum dated August 11, 1948 from Major J.A. Wright to the Commissioner of the RCMP, re: Visa Control Policy; Memorandum dated November 20, 1948, Screening of Applicants for Admission to Canada). In Cabinet Directive, Circular No. 14 dated October 28, 1949 and signed by N.A. Robertson, Secretary to the Cabinet, the following is stated:

 

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

 

[176]    The Minister asserts that Mr. Furman misrepresented his identity to the immigration authorities by using the name “Furman” rather than “Furmanchuk”. This may be true. However, unlike the concealment of his background as a concentration camp guard, I am not persuaded that Mr. Furman used a “false or fictitious name” or that failure to disclose “Furmanchuk” as his name of birth – on its own – would have led to his rejection.

 

[177]    The name “Furmanchuk” (or any variation in spelling) is easily related to the name of “Furman” or “Furmann” adopted by Mr. Furman. The omission of the suffix “chuk” is the only difference. Although no evidence was presented on the meaning of “chuk” at the end of a Ukrainian surname, I think that it is entirely possible that, in Ukrainian, “chuk” could be either a patronymic (“son of”) or a surname/family name indicator that would be used for a male member of the family. In either case, it is not clear to me that a person using a surname without the extension would be misrepresenting his surname. I have no evidence to indicate that the inclusion of “chuk” was an important identifying feature of the name. In other words, Mr. Furman may well have believed that the use of “chuk” as an extension to his surname was unnecessary and that “Furman” and “Furmanchuk” reflected the same name in English or German.

 

[178]    In addition, Mr. Furman made no attempt to change his place or date of birth. This is not a situation where an individual attempted to hide his identity by changing his name from “Smith” to “Jones” (or from “Katriuk” to “Schpirkas”, as was the case in Katriuk, above. It is quite plausible that the Officer discovered or that Mr. Furman told the Officer that he was born “Furmanchuk” and that neither of them considered the two names to be different. If the immigration officials did not question his story of being a farm labourer, it is not inherently probable that he would have been rejected solely on the basis of the name change.

 

[179]    I cannot conclude that failure to disclose his birth name as Furmanchuk to the immigration officers (if he did so) was a material representation that would have been cause for his rejection on security grounds.

 

X.  Acquisition of Citizenship

[180]    Mr. Furman was granted Canadian Citizenship in 1957. One of the claims of the Minister (as set out in the Notice and Statement of Claim) is that Mr. Furman failed to divulge the change in his surname to officials responsible for granting Canadian citizenship. Because of this, in the Minister’s submission, Mr. Furman obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances.

 

[181]    The evidence of the Minister on this point consists of Mr. Furman’s Application for Citizenship, a copy of which was filed as an exhibit. The Application was sworn by Mr. Furman on March 11, 1957. Question 11 of the Application poses three questions. Those questions and Mr. Furman’s responses are as follows:

 

Question	Response
If your name has been changed by court order, by Private Bill before a local legislature or by registration, as the case may be, furnish a certificate or certified copy of the court order or of the Bill. Give the date and place of occurrence of the change of name.	Not changed at all.
If your name has been changed by marriage, give maiden name.	Nil.
If your name has been modified, or its spelling has been changed, give name as formerly written or used and date since such change occurred.	Nil.

 

 

[182]    Given my finding that Mr. Furman was born with the surname “Furmanchuk”, it appears that his responses to two of these questions are false. However, I am not satisfied that the Minister has established that this apparent misrepresentation was material or, indeed, a misrepresentation in this case.

 

[183]    As discussed above, at section 9, it is not clear to me that a person using a surname without the extension “chuk” would be misrepresenting his surname. At the time of making his Application, Mr. Furman – who likely spoke very little English – may well have believed that the use of “chuk” as an extension to his surname was unnecessary and that “Furman” and “Furmanchuk” reflected the same name in English.

 

[184]    I also note that Mr. Furman listed his correct date and place of birth. It is inherently improbable that someone attempting to mask his identity would not also have changed those details.

 

[185]    On the evidence before me, I am not satisfied, on a balance of probabilities, that Mr. Furman failed to divulge the change in his surname to officials responsible for granting Canadian citizenship.

 

XI.  Submissions of Mr. Furman on Decision in Dueck

[186]    In final argument, Mr. Furman argued principally that the Minister had not satisfied its burden of proof with respect to the factual basis of the claim. He commended to me the decision in Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203, [1998] F.C.J. No. 1829 (QL) (F.C.T.D.) stating that:

 

It deals exactly with the same time frame. He talks about screening, the lack of screening, and there is another interesting decision that he reaches that the RCMP had no legal authority to reject immigrants based on security grounds. That is not supported by other decision, but that is his decision, and you can look at that and deal with the relevant documents.

 

[187]    Mr. Furman was not specific on which portions of the lengthy decision should apply. Nevertheless, since this decision seemed to form the foundation of the final submissions, I feel that I should address Dueck.

 

[188]    In Dueck, Justice Marc Noël found, inter alia, that the Minister had failed to establish that:

 

[T]here was a consistent process applied to all immigrants from Austria in July of 1948, that the process, if applicable, would have elucidated answers about the applicant's wartime activities, or that collaborators "generally" were prohibited from entering Canada [at para. 154].

 

It appears to me that two findings by Justice Noël need to be addressed:

 

• The Minister’s evidence did not establish that Mr. Dueck necessarily would have been interviewed by an RCMP screening officer; and

 

• There was no legal authority for the Minister or RCMP to prohibit the immigration of Mr. Dueck on security grounds in July 1949.

 

[189]    The first issue is a determination of fact, and as such I must consider whether the factual circumstances in Dueck are comparable to the present case. I begin by noting some important distinguishing characteristics which prima facie distinguish Justice Noël’s conclusion from this case:

 

• In Dueck, the wartime allegations contained in the Notice of Revocation were not made out; the Minister failed to establish that Mr. Dueck had been a member of the “Selidovka District Police” (an auxiliary, Ukrainian police force operating under the German police in the area); thus, the case against Mr. Dueck failed on other grounds, prior to Justice Noël’s discussion of Canadian immigration and security issues (see paras. 147-149);

 

• Mr. Dueck immigrated from Austria in 1948, rather than Germany in 1949, and Justice Noël’s analysis focused on the screening practice in that local area and timeframe;

 

• The defendant in that case testified that he had not been screened by a security officer; in this case Mr. Furman, who did not testify, could not confirm or deny whether he had been interviewed; and

 

• The Minister alleged that Mr. Dueck would have been excluded from admission to Canada under the “collaborator” rejection criterion and for no other reason, such as membership in the SS or service at a concentration camp.

 

[190]    Justice Noël reviewed the history of Canada’s security screening policies and procedures from 1945 to 1950. In short, he found that Cabinet set the immigration eligibility criteria, the Minister of Mines and Resources dealt with immigration matters, and the RCMP had sole authority over security screening procedures, with input from the Security Panel and its sub-committees. My conclusions, in this case and on much of the same evidence, are the same.

 

[191]    However, Justice Noël had before him certain evidence indicating that, in 1947, the screening procedure was still being developed through practice and was not necessarily being applied in all cases. Specifically, Justice Noël referred to immigration records which suggested a deficiency in screening:

 

Statistics prepared for the Immigration/Labour Committee show that 8,728 DP's had arrived in Canada by April 8, 1948. In comparing this number to the 1,611 DP's who had been screened by the RCMP by March 30, 1948, the respondent suggested this would mean that only 18.45% of DP's had actually been screened by the RCMP. While this calculation involves a number of assumptions, the applicant did not challenge these assumptions, the source from which these numbers were derived, the method which was used or the conclusion reached with respect to the number of DP's screened. These numbers do raise a serious question about the extent to which a consistent method of security screening was being applied during the period at issue [at para. 201; citations omitted; emphasis added].

 

[192]    Thus, Justice Noël was not satisfied that all displaced persons coming from Austria in 1948 would have screened by the RCMP. That determination was made on the basis of the evidence presented to Justice Noël. In his view, that evidence suggested that the screening procedure might have contained gaps.

 

[193]    Seven years after the decision in Dueck, I am faced with a different evidentiary record. Although Mr. Furman mentioned Dueck in final argument, he did not point to any specific evidence which might impugn the assertion by Dr. Avery, supported by the documentary evidence, that security screening of displaced persons was mandatory and adhered to in all situations by 1949. On the contrary, counsel for Mr. Furman commended to me the expert opinion of Dr. Avery.

 

[194]    I emphasize the fact-driven nature of this revocation inquiry. The evidence and argument before me tell a different story than that which was before Justice Noël. I have not been made aware of, nor have I located in my review of the voluminous Canadian immigration documents before me, evidence that RCMP screening officers were, except possibly through inadvertence, failing to interview all displaced persons coming from Germany.

 

[195]    I turn then to the second applicable issue from Dueck – the legal authority to screen out European displaced persons on security grounds. Justice Noël determined that, although the Immigration Act, 1927, in force in 1948, granted broad discretion to the Governor-in-Council to prohibit entry to Canada, the Act required that this discretion be exercised through Orders-in-Council, and that no such Order effectively prohibited the entry of immigrants on security grounds until P.C. 2856 was issued in 1950. Prior to that time, there was no legal authority for the Minister or the RCMP to screen out immigrants on security grounds.

 

[196]    If I am correct that Mr. Furman was referring to the jurisdictional finding of Justice Noël, I note that contrary conclusions were reached in Kisluk, above and in Odynsky, above.

 

[197]    In Kisluk, Justice Lutfy concluded that the legal authority in question had existed by virtue of the blanket prohibition on immigration and the discretion vested in immigration officers to allow the landing of specified classes as exceptions to that prohibition (see para. 173). This authority had been established by the Orders-in-Council P.C. 695, P.C. 4849, P.C. 2743 and P.C. 2856. Justice Lutfy also referred to a second series of Orders-in-Council that authorized regulations concerning visas, and found that these regulations also conferred discretion to restrict landing in Canada on security grounds (at para. 179).

 

[198]    I find the reasoning of Justice Lutfy in Kisluk to be persuasive.

 

[199]    Accordingly, I find that legal authority to screen out European displaced persons on security grounds existed by virtue of a number of Orders-in-Council, including P.C. 695, P.C. 4849, P.C. 2743 and P.C. 2856, which established a blanket prohibition against immigration and conferred discretion upon the Minister to allow individuals to be admitted to Canada. This authority existed as early as 1931, when P.C. 695 was passed, and was valid in 1949, when Mr. Furman came to Canada.

 

[200]    In sum, the decision in Dueck does not assist Mr. Furman.

 

XII.  Officer’s Exercise of Discretion

[201]    There remains a question of whether, on the facts of this case, Mr. Furman would necessarily have been rejected by the RCMP Officer who conducted the security screening. Without the direct testimony of the RCMP Officer who would have conducted the interview, there is some degree of speculation. In spite of the direction of his superiors, it is arguable that the Officer may have considered the circumstances under which this former Soviet prisoner of war became an SS Guardsman and exercised his discretion. The problem with this assertion is that Mr. Furman never provided the information to the Officer. In not admitting that he was a Soviet prisoner of war and a concentration camp guard during the war, Mr. Furman effectively foreclosed any questioning by the RCMP Officer regarding the particulars of that background.

 

[202]    The Supreme Court of Canada in Canada (Minister of Manpower and Immigration) v. Brooks, [1974] S.C.R. 850, [1973] S.C.J. No. 112 addressed this problem. In that decision, the Supreme Court was dealing with an immigrant to Canada who had not disclosed certain information during the application process. The provision of the Immigration Act, 1948 under consideration was s. 19, which provided that every person who came into Canada “by reason of any false or misleading information” is “subject to deportation”. Disclosure of the information would not necessarily have prohibited the landing of the individual. Nevertheless, the Court stated as follows:

 

Lest there be any doubt on the matter as a result of the Board's reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information in an answer or answers be such as to have concealed an independent ground of deportation. The untruth or misleading information may fall short of this and yet have been an inducing factor in admission. Evidence, as was given in the present case, that certain incorrect answers would have had no influence in the admission of a person is, of course, relevant to materiality. But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation. [Emphasis added.]

 

[203]    The reasoning of the Supreme Court in Brooks has been followed by the Federal Court in decisions dealing with proceedings of this nature (see, for example, Bogutin, above at para. 124; Baumgartner, above at para. 139).

 

[204]    The point is that Canadian officials responsible for the screening of Mr. Furman were foreclosed from making further inquiries. It would have been impossible for the Officer to question him on his service with the Soviet army or on what acts he had committed as a concentration camp guard. Whether the Officer might have exercised some discretion is irrelevant; he never had the opportunity to do so.

 

XIII.  Summary of Findings

[205]    At the outset of these reasons, I identified a series of questions. In summary, I respond to those questions with the following findings, all of which are made on a balance of probabilities after careful consideration of the evidence:

 

1. Josef Furman, the Defendant in these proceedings, was born “Iosef Furmanchuk”.

 

2. An individual named “Josef Furmantschuk” trained as an SS Trawniki Guardsman and participated, as an SS Guardsman, in activities at the Jewish ghettos of Warsaw and Bialystok and at the Flossenbürg concentration camp.

 

3. Josef Furman, born Iosef Furmantschuk, is the same person as “Josef Furmantschuk”, the SS Guardsman referred to in these reasons.

 

4. Josef Furman, known at that time as Guardsman Josef Furmantschuk, Registration No. 1538, participated, as a guard, in the evacuations of Jews from Warsaw and Bialystok, in 1943, and was a concentration camp guard at Flossenbürg concentration camp from October 7, 1943 to at least April 1, 1944.

 

5. Canadian immigration officials and, in particular an RCMP officer, interviewed Mr. Furman and sought information on his World War II activities.

 

6. Mr. Furman concealed his wartime activities from Canadian immigration officials (in particular, from the RCMP screening officer) prior to coming to Canada, including information that he had been: (a) a Soviet prisoner of war; and (b) an SS Guardsman at the evacuation of Warsaw and Bialystok and at the Flossenbürg concentration camp.

 

7. The information that Mr. Furman had been a Trawniki guardsman and, in particular, a former concentration camp guard, if disclosed, would have been of significant concern to the interviewing RCMP officer and would, in all likelihood, have led to his rejection on security grounds.

 

[206]    As discussed, the Minister has not persuaded me that Mr. Furman provided a false name to Canadian immigration officials or upon his application for Canadian citizenship.

 

XIV.  Overall Conclusion

[207]    In conclusion, I find, on a balance of probabilities, after carefully scrutinizing the evidence before me, that, at the time of his immigration to Canada in 1949, Mr. Furman falsely represented to Canadian immigration officials that he had performed forced farm labour from 1942 to 1945. He knowingly concealed his wartime associations with the Soviet Army and the SS Death’s Head Units, including as a concentration camp guard.

 

[208]    This conclusion is, in my view, sufficient to dispose of this matter. It is not necessary to determine whether he was “lawfully admitted” to Canada. However, for greater certainty, I also find that Mr. Furman was: not lawfully admitted to Canada; did not acquire Canadian domicile; and, was not a person of good character – all of which are contrary to the Immigration Act, 1948.

 

[209]    For these reasons, I find that Mr. Furman was admitted to Canada and obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

 

[210]    The Minister advised that, if successful, he would not seek costs. Consequently, there will be no order as to costs.

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THIS COURT ADJUDGES AND DECLARES that:

 

1. The Defendant, Josef Furman, obtained citizenship in Canada by false representation or fraud or by knowingly concealing material circumstances, within the meaning of s. 18(1)(b) of the Citizenship Act.

 

   “Judith A. Snider”

                                                                                                _____________________________

                                                                                                                        Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX “A”

to the

Reasons for Judgment and Judgment dated August 17, 2006

In

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

and

 

JOSEF FURMAN

 

T-560-04

 

 

 

Citizenship Act, 1985 10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, (a) the person ceases to be a citizen, or (b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto. (2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship. … 18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances. (2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address. (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. Canadian Citizenship Act, 1948 10. (1) The Minister may, in his discretion grant a certificate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose and satisfies the Court that, (a) either he has filed in the office of the Clerk of the Court for the judicial district in which he resides, not less than one nor more than five years prior to the date of his application, a declaration of intention to become a Canadian citizen, the said declaration having been filed by him after he attained the age of eighteen years; or he is the spouse of and resides in Canada with a Canadian citizen, or he is a British subject; (b) he has been lawfully admitted to Canada for permanent residence therein; (c) he has resided continuously in Canada for a period of one year immediately preceding the date of the application and, in addition, except where the applicant has served outside of Canada in the armed forces of Canada during time of war or where the applicant is the wife of and resides in Canada with a Canadian citizen, has also resided in Canada for a further period of not less than four years during the six years immediately preceding the date of the application; (d) he is of good character; (e) he has an adequate knowledge of either the English or the French language, or, if he has not such an adequate knowledge, he has resided continuously in Canada for more than twenty years; (f) he has an adequate knowledge of the responsibilities and privileges of Canadian citizenship; and (g) he intends, if his application is granted, either to reside permanently in Canada or to enter or continue in the public service of Canada or of a province thereof.   Immigration Act, 1948 2. In this Act … (n) “landing” means the lawful admission of an immigrant to Canada for permanent residence; … 20. (1) Every person, including Canadian citizens and persons with Canadian domicile, seeking to come into Canada shall first appear before an immigration officer at a port of entry or at such other place as may be designated by an immigration officer in charge, for examination as to whether he is or is not admissible to Canada or is a person who may come into Canada as of right. (2) Every person shall answer truthfully all questions put to him by an immigration officer at an examination and his failure to do so shall be reported by the immigration officer to a Special Inquiry Officer and shall, in itself, be sufficient ground for deportation where so ordered by the Special Inquiry Officer.   (3) Unless the examining immigration officer is of opinion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let a person examined by him come into Canada, he shall, after such examination, immediately grant admission to or let such person come into Canada.   … 50. Every person who … (f) knowingly makes any false or misleading statement at an examination or inquiry under this Act or in connection with the admission of any person to Canada or the application for admission by any person; … is guilty of an offence and is liable on summary conviction, for the first offence to a fine not exceeding five hundred dollars and not less than fifty dollars or to imprisonment for a term not exceeding six months and not less than one month or to both fine and imprisonment, and, for the second offence to a fine not exceeding one thousand dollars and not less than one hundred dollars or to imprisonment for a term not exceeding twelve months and not less than three months or to both fine and imprisonment, and, for the third or a subsequent offence to imprisonment for a term not exceeding eighteen months and not less than six months.

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; …

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-560-04

 

STYLE OF CAUSE:                          THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. JOSEF FURMAN

 

 

PLACES OF HEARING:                  St. Catharines, Ontario and

                                                            Ottawa, Ontario

 

DATES OF HEARING:                    June 5, 6, 8, 12, 13, 14, 19, 27 and 28, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          SNIDER J.

 

DATED:                                             August 17, 2006

 

 

APPEARANCES:

 

 

Marlene Thomas Jamie Todd Angela Marinos Bruce Hughson	FOR THE PLAINTIFF
Eric Hafemann Paul Williams	FOR THE DEFENDANT

 

SOLICITORS OF RECORD:

 

 

John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE PLAINTIFF
Eric Hafemann, Esq., Waterloo, Ontario	FOR THE DEFENDANT