Canada (Minister of Citizenship and Immigration) v. Vitols, docket T-310-97

Date: 19980923

Docket: T-310-97

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

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

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

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                           Applicant,

                                                                         - and -

                                             PETERIS (PETER) ARVIDS VITOLS,

                                                                                                                                       Respondent.

                                                      REASONS FOR DECISION

MCKEOWN, J.

[1]         The respondent, Mr. Vitols, was a member of a police battalion and the Waffen SS in Latvia during the German occupation of Latvia during the Second World War. He was taken prisoner by the Western allies at the end of World War II and was in a prisoner of war camp for approximately one year. He was released from the prisoner of war camp and moved to a displaced persons camp at that time. Although he disclosed all his personal information upon his entry into the displaced persons camp, a year later he did not disclose his participation in the Latvian forces in World War II on the form provided by the United Nations Relief and Rehabilitation Administration (UNRRA) which was the predecessor to the International Refugee Organization (IRO). He completed this form during his stay at his first displaced persons camp, and withheld this information on the basis of advice from the commander of the displaced persons camp. Mr. Vitols applied to come to Canada as a refugee in 1950. He arrived later that same year and received his citizenship in 1956.

[2]         At the time he applied to come to Canada, Canada did not permit any persons who were collaborators with the enemy to attain permanent residence. The Minister of Citizenship and Immigration (the "Minister") notified the respondent on December 18, 1996, that she intended to request that the Governor in Council revoke his citizenship on the following grounds:

... you were admitted to Canada and obtained citizenship by false representations or fraud or by knowingly concealing material circumstances in that you concealed or failed to divulge to Canadian Immigration and Citizenship officials your collaboration with the occupying German authorities as a member of the Madona District Police in German-occupied Latvia during the Second World War, your membership and service in the 281st Schutzmannshaft battalion or Schuma 281 during that time, your membership and service in the Waffen SS during the Second World War, and your association with organizations actively engaged in atrocities against the civilian population.

[3]         Pursuant to s. 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, the respondent requested that the Minister refer the case to the Court for a hearing. On February 25, 1997, the Minister referred the case to the Court.

[4]         The applicant Minister did not seek to demonstrate any personal involvement in war crimes by Mr. Vitols, but stated that he was a member of certain Latvian police and military forces which were involved in criminal activity during World War II.

[5]         The respondent denies that he made any misrepresentations to Canadian authorities. The immigration form in use at the time had no questions about wartime activities. He was asked if he had been in the army and acknowledged having been a Latvian officer during the war. He was not asked about service in police units.

[6]         I must decide whether Mr. Vitols obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. The issues are whether he was a collaborator, as understood by security screening authorities at the time, and whether he lied in a material way upon his application for landed immigrant status and citizenship. The respondent has admitted his membership in the three military organizations - the German District Police, the 281st and 277th German Police Battalions, and the Latvian Army or Waffen SS -and accordingly, that is not an issue.

FACTS

I.           Latvian History of the Pre-War Period

[7]         Latvia had become an independent republic in 1918, after having been occupied by major powers - particularly Germany and Russia - over the centuries. From 1918 until 1934 Latvia was a parliamentary republic. Then a putsch occurred and the constitution was suspended by Karlis Ulmanis who became a dictator. According to professor Ezergailis, the respondent's expert witness, the regime was in some respects similar to Mussolini's, except that Ulmanis came from the political centre and represented the stable classes, such as farmers.

[8]         Latvia's independence came to an end in 1939 as part of a secret protocol of the Hitler-Stalin pact of 1939. Hitler collaborated in the Soviet occupation of Latvia and other Baltic states in order to ensure peace on the Eastern front at the start of the war. The treaty also occasioned the exodus of the Baltic Germans to Germany. In June 1940, Soviet tanks rolled into Latvia, establishing the Stalinist regime which lasted for one year, during which time the Latvian state and society were in large measure Sovietized. Class antagonisms were heightened, especially in the countryside. Farmers who owned more than 30 hectares were dispossessed and the confiscated lands were distributed to the landless farm hands. Over 33,000 Latvians were deported to Siberia, including 15,000 in one day, June 14, 1941. Many of them perished. The deportees were mostly members of the stable Latvian classes, the large landowners, rural, political leaders, policemen, aizsargi (home guards) and intelligentsia.

[9]         In 1941 the Germans launched Operation Barbarossa which was designed to destroy the Soviet Union, to conquer new living space in the East, to eliminate the so-called Jewish Bolshevist leadership, and finally, to implement the program of the Final Solution, i.e. extermination of the Jews. The military campaign commenced on June 22, 1941. The Germans quickly overran Latvia and occupied it in July 1941. As stated earlier, the ranks of leading citizens in Latvia had been decimated just before the Nazis arrived. Many Latvians welcomed the Germans as liberators even though, historically, the Germans had suppressed Latvians. Many Latvians shared the illusion that Hitler would permit them independence and that at the end of the war, Latvia would become free just as it had at the end of World War I.

II.          Mr. Vitols - Early Years

[10]       Peter Vitols was born February 26, 1915 in Aiviekste, Latvia. His father worked on a railroad. Mr. Vitols lived around Speegane. He commenced school when he was seven years old and attended several schools. He completed high school in Plyavinas, Latvia in four years, and while attending high school, he worked each summer for a farmer because he had to earn money for his schooling. He wanted to study electronics at the university, but his family did not have enough money to pay for his studies and so he went to work for the railroad as a ticket cashier in Riga, the capital of Latvia. He entered the mandatory military service in the fall of 1936 and served until the fall of 1937 when he completed his exams for the military academy in Riga for Latvian military officers. He graduated from the academy on September 1st, 1939. He joined an infantry division and within three months, he became a junior officer. After that, Mr. Vitols was entitled to be chief of a platoon. He married on February 17th, 1940. On June 17, 1940 the Soviet army entered Latvia and occupied the country.

III.         Mr. Vitols - Soviet Occupation

[11]       Mr. Vitols remained in the Latvian army, although in his opinion the Latvians should have resisted the Soviet invasion. He continued to be paid when the Soviets took over the army. Many members of the army were arrested and shot or deported to Russia. Mr. Vitols, however, continued in the army. In December of 1940, his first daughter was born. His wife was financially dependent on him from the time of their marriage. In his opinion, he could not afford to leave the army.

[12]       In September of 1940, the Russians changed the name of the Latvian army to the People's Army and appointed political commissars for each platoon company and regiment. In 1941, Mr. Vitols was transferred to Cesis and his wife and daughter accompanied him there. Although his fellow officers were transferred to a town called Gulbene, Mr. Vitols remained in Cesis.

[13]       On June 13, 1941, in the evening, Mr. Vitols was on duty as a commanding officer in the barracks located next to the railroad tracks. Around 10 o'clock, he noted that an event was occurring in the railroad yards; children were crying and heavy trucks were going back and forth. He attempted to cross the square, but he was stopped by the Russian patrol. He returned to his office and contacted the chief of the regiment who attended with a Commissar. The Commissar advised them to be silent since no change could be effected. They saw people gathered there being loaded onto the railroad cars; their destination was unknown. Later, it was learned that those gathered were from the township and that similar events were transpiring throughout Latvia. Mr. Vitols' testimony as to the events of June 13, 1941, is supported by the historical evidence. On the whole, I found him credible on his description of his activities during the Soviet occupation of Latvia.

[14]       Later the same month, the German army entered Latvia and took over Riga on July 2, 1941. Mr. Vitols was still in Cesis, with the main part of his regiment. The Germans gathered all officers together. The officers were asked whether they had been fired or discharged, or whether they considered themselves deserters of the Russian army. Mr. Vitols answered that he was discharged. Subsequently they were all allowed to leave. No Latvian army remained once the Germans occupied Latvia. Accordingly, Mr. Vitols went back to his home in Cesis with his wife and daughter and tried to find work. During the summer, he helped his father-in-law with his farm work in a village near Plyavinas.

[15]       Mr. Vitols' brother, Janis Vitols, worked with the Madona police in September 1941 in the 1st Precinct of Madona. His brother suggested to Mr. Vitols that he seek a job with the police management. Mr. Vitols had an interview with Mr. Reineke, chief of the district police, who had three precincts under his management. Chief Reineke was a Latvian and had been a captain in the army in the First World War. He took an interest in Mr. Vitols' military career and Mr. Vitols testified that he was hired as a case worker in a clerical job where he translated documents, made copies and performed general clerical work. German documents show that police in occupied territories were to be recruited from persons who had been in the country's army.

[16]       I find that in September 1941, Mr. Vitols voluntarily joined the first precinct of the Madona District Police as a second lieutenant on a six-month contract. His family moved with him to Madona, and in December 1941, another daughter was born. The police were militarized from September 27, 1941. In the beginning, the police did not have uniforms, but wore their own clothes; Mr. Vitols testified he wore his old army uniform after taking off the insignias, as did many other police officers.    In December 1941, a German document listed him as a platoon commander in the Reserve Company of the Madona District Police; there is no other evidence, however, that such a Reserve Company existed.

III.         German Administration of Latvia

[17]       The structure of the German administration in Latvia provides a necessary context for the role of the respondent in the organizations to which he belonged. Originally, Latvia was subject to military administrations which were gradually replaced by civilian government. Latvia became part of the Reichskommissariat (also referred to as Reichs Commissariat) Ostland. There was another similar administration set up to the south, the Reichskommissariat of Ukraine.

[18]       I was assisted considerably by the expert witnesses who brought different strengths to their testimony. Professor Kwiet, the applicant's expert, has extensive academic experience in the field of modern German history, especially events comprising World War II and the Nazi period. He has the ability to read the original German documents in German and he provided the Court with essential evidence respecting

the evolution and development of Nazi rule in Germany, the aims and objectives of the Nazi occupation campaigns in World War II, the implementation and objectives of German occupation policy in occupied territories and, the roles, responsibilities and activities of the various German and German-controlled agencies in pursuing and effecting German aims and objectives during the Nazi era.

[19]       Professor Ezergailis, on the other hand, is an expert in modern Latvian history, and in

particular,

the Holocaust in Latvia, the Soviet and German occupations of Latvia during World War II, anti-semitism, Nazi propaganda, Soviet propaganda, including the misuse of the Holocaust for propaganda purposes, the Latvian Legion, SD activities in Latvia and its relationship with auxiliary policy, and twentieth century ideologies including Marxism.

Professor Ezergailis speaks and reads Latvian, but is not fluent in German and had to rely on his wife for assistance in translating German documents. Both professors now teach in English in Australia and the United States respectively.

[20]       In condemning the Holocaust, the witnesses were divided on how to attribute guilt for events which transpired during World War II in Latvia. While I found both experts generally credible, the weight accorded their evidence varied in keeping with their particular strengths and weaknesses. While I found Professor Kwiet helpful on the Nazi power structure, he was less knowledgeable about the actual workings of this structure in Latvia, and accordingly, was inclined to spread the net of responsibility over a large, generalized group of people in Latvia. Professor Ezergailis, who is more familiar with the complexities specific to the implementation of Nazi policy in Latvia, was more likely to pinpoint responsibility on specific groups.    Professor Kwiet was inclined to minimize the effects of the Soviet occupation of Latvia in the early stages of the Second World War and after the war. Professor Ezergailis, on the other hand, was inclined to view some of the Latvian activities in the context of the bitter anti-Soviet views of Latvians, and accordingly minimized the assistance provided to German occupiers by Latvians. Occasionally, during cross-examination, it was shown that Professor Ezergailis had failed to review supporting documents and was forced to admit the documents did not agree with his conclusion. I nonetheless found his evidence to be generally credible.

Civil Administration

[21]       Professor Kwiet defined Reichskommissariat as follows: 'Reich' stands for the central German Reich empire; 'Kommissariat' is a term of an administrative nature. Together the words denoted an occupational regime of a civilian nature, with a very specific structure of domination established by the Germans. With regard to the new civilian administration of Ostland, the Reichskommissariat was a direct chain of command. It started with Adolf Hitler as the Führer and Reich Chancellor. There was the newly established Reich Minister for the Occupied Eastern Territories, Alfred Rosenberg, the Chief Ideologist of the Nazi Regime. He represented the highest ministerial level in charge of both the Reichskommissariat Ostland and Second Reichskommissariat in the south.

[22]       The next layer in the chain of command only relates to the Reichskommissariat Ostland. It was occupied by the highest civilian representative in this regime, a Reichs Commissar named Hinrich Lohse. Ostland itself was then subdivided into several General Commissariats by country, e.g., General Commissariat Latvia, General Commissariat Lithuania, etc. Each General Commissariat was governed by a General Commissar. In Latvia, the position was occupied by Dr. Drechsler who was the highest civilian administrator. Each General Commissariat, including that of Latvia, was then divided into six so-called District Commissariats, each headed by a District Commissar (Gebiets Kommissar). A District Commissariat was the lowest German civilian agency operating in Latvia, and similarly, a German District Commissar was the lowest German civilian official in occupied Latvia. Under the District Commissariat is where the Latvian self-administration of the lowest level entered into the structure.

[23]       All major political directive guidelines where issued by hand to both Reichskommissariats of the Occupied Eastern Territories. The Reich Minister, Rosenberg, was at the top of the chain of command and issued guidelines which related to both Reichskommissariats. These orders were then given to the General Commissar who in turn gave them to the District Commissar. In the same way that orders were given, reports had to be produced and these reports then went up to the central agencies. Thus, communication was effected directly through the chain of command, which was never broken between the German Reich and the Reichskommissariat Ostland.

Police Structure

[24]       I will now review the police/SS structure, in order to situate and to understand the role of the Madona District Police, of which Mr. Vitols was a member. At the top of the police structure was the Führer and Reichs Chancellor Adolf Hitler. Directly underneath was the Reichsführer SS and Chief of German Police, Heinrich Himmler. He was in charge of all police branches and troops as well as the Chief of the German Police. Under Himmler there were two police branches. One branch was composed of the Order Police (Ordnungspolizei) and the other branch was what the Germans called the security police and the SD security service.    The Order Police managed the Latvian police, watched over the population and oversaw the occupation and annexation of Latvia. The Security Police and the SD security service, headed by General Reinhard Heydrich, became known as the SS Reich security main office. It was composed of six police agencies which took charge of political matters. In order to assist with further detail, I have included the Chart of the Police/SS Structure prepared by Professor Kwiet as an appendix. I prefer the evidence of Professor Kwiet to that of Professor Ezergailis on the general topic of the Police/SS structure, but will make findings on an issue-by-issue basis on the more contentious topic of the actual flow and implementation of Nazi orders throughout this structure.

[25]       The Germans created auxiliary or district police forces under German control, with commanders chosen by the Germans in July 1941, since there were no police forces left in existence. This enhanced the Germanization of Latvia; thereafter, the Latvian district, provincial or city police had no Latvian structure. They reported to and obeyed the local German SD or Ordnungspolizei commanders. As was true of the Latvian civilian administration, the Latvian police were not allowed to develop any horizontal or vertical links with their counterparts in other cities or regions. The traditions and professionalism of the pre-war police were diluted.

[26]       Schutzmannschaften (literally "guardsman societies") was the name which the Germans gave to the Latvian auxiliary or district police. The Schutzmannschaften constituted a very large and ungainly organization. They encompassed the police in large and small towns, Riga and the provinces. They were units that were military in everything but name, such as the police battalions fighting on the Leningrad front and against the partisans in Belorussia, as well as the street police in the cities and the constabularies in the countryside. Two incompatible branches, one military and the other police, were forced into one organizational network.

[27]       The name Schutzmannschaften emphasized the subsidiary and auxiliary nature of the Latvian police. At the same time, the Germans called Latvian units Hilfspolizei, which means auxiliary police. Professor Ezergailis felt that this helped to create the confusion that still continues to this day about Latvian police, soldiers, SS and SD. Latvians themselves, however, did not like the name Schutzmannschaften and used it only on official correspondence with the Germans. The Latvians used the term Kartibas policija, a direct translation of the German Ordnungspolizei (order police).

[28]       I agree with Professor Ezergailis that the German distinction between the German Ordnungspolizei and the Schutzmannschaften was justified since their respective functions were not identical. As has been noted, the former managed the Latvian police, watched over the population and oversaw the occupation and annexation of Latvia. The latter performed the street-level duties or were posted to military assignments in German-occupied territories. More contentious was the question of the Schutzmannschaften's implication in the killing of Jews. In Professor Ezergailis' opinion, whereas the Ordnungspolizei performed as the first SD reserve in the killing actions, the involvement of the Latvian Schutzmannschaften was episodic and local, and the majority of the Schutzmannschaften had nothing to do with atrocities. In comparison with the Arajs commandos, for example, they played a minor role and the whole multi-faceted organization cannot be painted with the same brush.

[29]       Professor Kwiet, on the other hand, testified that large sections of the Schutzmannschaften were involved in heinous crimes committed. The tasks of the police were extensively documented by the Germans. The applicant relies on an order dated July 25, 1941, signed by Himmler, setting out the duties of the police in its occupied Eastern territories:

The task of the police in the occupied Eastern territories cannot be performed solely with the police and SS personnel already deployed and yet to be deployed. It is therefore necessary to establish without delay additional Protective formations [Schutzformationen] from among those population segments in the conquered territories who were acceptable to us, as the Einsatzgruppen of the Sicherheitspolizei have already done in some cases.

These orders indicate that the security police and the order police were to follow advancing military troops toward the east and also, in effect, to eliminate all people regarded as German enemies. The Jews and the communists were to be executed and then law and order was to be secured in the countries. While this directive from Himmler sets out the role intended by Nazi authorities for the Schutzformationen, it does not detail how and when such plans were implemented in the field.

[30]       A German order dated September 27, 1941, from Flick, commander of the Order Police, similarly dictates the role of the police as enforcement agents of their German superiors. Indeed, the specific duties of the Schutzmannschaften in the city of Riga, for example, as listed in a memorandum dated August 21, 1941, from the Higher SS and Police Leader, are particularly illustrative. The duties included the following: maintaining security and order, apprehending Bolshevists and Jews, monitoring blackouts, furnishing guards for military facilities and booty depots, performing the duties incumbent on the harbour police and the railway police, and implementing the general regulations and orders from the commander of Rear Army Area North. The Schutzmannschaften were also called upon for executions of communist and political criminals. The memorandum also refers to Madona, noting the strengths and duties of the Schutzmannschaft in Madona. The former is listed as having "99 officers and rank and file," "pistols and rifles". The latter are stated to be "as in 1". Thus, the Schutzmannschaft in Madona also had "apprehending Bolshevists and Jews" as part of its specified duties. The applicant relies on paragraph two with regard to Mr. Vitols.

[31]       The respondent submits that the list of deployments and duties also include things that may well be particular to Riga, e.g., performing the duties incumbent on the harbour police. Madona, however, is land-locked. The respondent, therefore, submits that when it says under Madona "duties and deployment as in 1", the reference cannot be taken literally. It is a general guideline only. However, aside from this topographical distinction, there is no reason to doubt the applicability of the duties listed in "1" to Madona.

[32]       Professor Kwiet and Professor Ezergailis were divided, however, on whether the duties included in the August 21, 1941, document were ever, in fact, carried out. Professor Kwiet testified that large sections of the Schutzmannschaften were involved in heinous crimes committed, whereas Professor Ezergailis said that he had no evidence that this occurred. In cross-examination, Professor Ezergailis testified that orders from the central SS authorities in Latvia could not be taken to reflect the actual activities carried out in the field, and that based on his research, he would not attribute such activities to the district police in Madona.    I prefer the evidence of Professor Ezergailis on this point. However, the role of the Madona Police is complicated by the fact that the Chief of Police, Reineke, Mr. Vitols' supervisor, was directly subordinate to a German SS and Police Region Leader. This relationship is what caused the different views of the experts.

[33]       In a German Security Police report, entitled "Event Report USSR No. 156", released by the Chief of the Security Police and SD, dated January 16, 1942, reference is made to arrests and executions under the main heading "Status of Security Police Work". On the basis of this heading, both historical experts agreed that it was the Security Police who performed the executions. Under the heading "Executions", it states, "[d]uring the reporting period, the following were summarily executed under martial law". Among those listed, reference is made to 28 communists.

[34]       In his report, Professor Kwiet attempts to trace the identity of these 28 communists. He traces them back to a document that referred to the transfer of political prisoners from Gulbene to the concentration camp at Madona. An undated document indicates that on October 1, 1941, Briedis, Chief of the 2nd Precinct (in Gulbene) of the Madona District Police, acted in compliance with warrant No. 170 of September 19, 1941 from the Chief of the Concentration Camps Administration. Briedis delivered to Karklins, an SD man and Chief of the Madona Concentration Camp, all political prisoners who were quartered in Gulbene, together with documents, money and other effects. Both experts agreed on this point.

[35]       Professor Kwiet's report also mentions the undated statement regarding the delivery of prisoners, which states that all 86 political prisoners kept in Gulbene were transferred to Madona. Professor Kwiet then appears to suggest that the 28 communists were members of the Red Guard (communist paramilitary organization), and that they had been under arrest since July 6, the very earliest period of German occupation. This was long before Mr. Vitols became a policeman at Madona, not at Gulbene. He did not become a policeman until September.

[36]       Thus, if Mr. Vitols is associated with this transfer of prisoners at all, it is simply in the sense that he was in Madona when the prisoners were transferred to that town. The prisoners were transferred to the concentration camp. The camp was not under the jurisdiction of the Madona District Police; it was under the jurisdiction of the SD man, Karklins. Both experts also agreed on this point.

[37]       On this basis, the respondent submits that Mr.Vitols would thus clearly have had nothing to do with the transferees, since both experts agree that they were executed by the Security Police.

[38]       The Jews in Latvia were exterminated to a large extent in the summer of 1941 as part of the movement of the Germans into Latvia. Professor Kwiet testified that he would not use the term Schutzmannschaften for this early phase because at that time, the auxiliary police were recruited by security police, by police battalion or by the military to fulfil the auxiliary police services. These recruits became involved in the first shootings or killings of primarily Jews and communists. Professor Kwiet referred to these early recruits as "anti-partisans, those who had deserted from the army or those who had built up groups of self-defence throughout Latvia and [as] the first group which, together with the Germans or even sometimes without any German presence, carried out this initial sweep." These events, however, occurred prior to the time that Mr. Vitols joined the Madona police, that is, in September of 1941.

[39]       In her closing, the applicant made reference to there being one Jew left in Madona after the summer of 1941. The respondent submits that she must have been speaking of the German Security Police Report, dated January 1942. The reference in that report, however, was to one Jew in Libau, which is not near Madona. Libau is on the far western coast, almost as far as possible to go from Madona while still being in Latvia. The applicant also relies on a document identified as telephone message no. 20 (Feb. 18, 1942) to the Madona District Police Chief. In that document, a total of 224 "Jews arrested" is reported. While the applicant submits this proved there were Jews remaining in Madona after Mr. Vitols joined the police, the respondent, backed by Professor Ezergailis, states that the 224 figure was cumulative, and hence, Madona was in fact "judenfrei" by the time Mr. Vitols joined the police in September 1941. Given the ambiguity of this document, and the absence of any other evidence, I cannot conclude that there were Jews remaining in Madona at the time Mr. Vitols joined the police. Ultimately, this issue is not of particular importance as the applicant denies reliance on this statistic, saying that the charges against Mr. Vitols are not limited to his implication in anti-Jewish activities.

[40]      The applicant, nonetheless, argues that the act of voluntarily joining a police organization, knowing that they would have been tainted with these earlier killings, is sufficient to make Mr. Vitols a collaborator. However, the case at bar is concerned with whether Mr. Vitols obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Accordingly, at issue is whether Mr. Vitols' wartime activities, if disclosed, disqualified him from admission into Canada in 1950. We are therefore concerned, not with contemporary understandings of "collaboration," but with the view taken by Canadian security and immigration authorities at the relevant time, an issue which will be addressed further on.   

[41]       The evil efficiency of Nazi Germany comes through in many other documents containing military orders. The so called "jurisdiction decree" issued by the Führer Adolf Hitler himself excluded the use of military court martials in all matters relating to the civilian population. Court martials were to deal only with legal matters within the military; therefore, a civilian death was excluded from court martial proceedings. This exclusion was a clear method of sanctioning crimes committed, since their perpetrators were not tried by military court martials. Similarly, the Commissar military order of June 6, 1941, also directed to the military, indicated that it was entitled to liquidate those political officers or the Red Commissars serving within the Red Army.    The military order also incorporated all other enemies who were regarded as hostile to the regime within the military scene. In effect, it was an order giving the military authority to shoot and kill political commissars without trial; as such, it was another example of the Nazi regime's very blatant violations of international law. I note, however, that this order applied to the military, not to the auxiliary or district police.

Mobile killing units

[42]       The Einsatzgruppen or operational task forces were comprised of personnel and staff from all the major SS and police agencies. In colloquial English, they are normally referred to as mobile killing units. Their purpose appears to have been, in part, the implementation of Nazi racial policy against Jews, communists, Gypsies and other German enemies. The Einsatzgruppen typically followed at the rear of invading German armies. As the Einsatzgruppen moved in, so did the police battalions next to them; the police battalions were the branch or groups under the command of the Order Police.

[43]       Stahlecker, the German Commander of Security, Police and Security Service, described in his first report, which is undated, the activities of the Einsatzgruppen up to October 15, 1941. Stahlecker wrote a second report which described events from October 16, 1941 to January 31, 1942. He detailed the deployment, the operations, the activities of his units, and he dealt more or less with all the areas under his jurisdiction in the territory assigned to Operational Task Force A. The Einsatzgruppen duties included execution of communists, party officials and Jews in state positions. The task was referred to by the euphemistic term, "self-cleansing". In practice, self-cleansing meant that the Einsatzgruppen would enter a territory, and then with their encouragement, the local or indigenous people, be they Lithuanians or Latvians, would start killing the Nazi enemies (communists and Jews) on their own. Both professors agree that by self-cleansing, Stahlecker meant liquidation. Stahlecker's people would do the killing. In his report, Stahlecker stated it was considerably more difficult to set up similar cleansing operations and pogroms in Latvia. Professor Ezergailis stated that he had not come across any document that would indicate self-cleansing occurred in Latvia.

[44]       Since self-cleansing failed, the organization of local people into special killing squads under German control began.    These special killing squads were considered to be security police or SD units. Inasmuch as the pogroms failed, the killings did not occur during the first phase or first week of the German occupation, and had to be delayed until the organizational structure was in place. This took about three or four weeks to establish. SD units were established in Riga, Jelgava, Madona and Valmiera.

[45]       The Arajs squad, which was made up mostly of Latvians under Viktors Arajs (a Latvian whose mother was a Baltic German), was both the largest and the most long-lived of those killing squads. The Arajs commandos were created by July 2, 1941, the second day of occupation, were subordinated to Stahlecker, and became active in Riga. In this regard, Stahlecker continued in his report

[it] was possible to set off a pogrom of Jews in Riga well after suitable influence was exerted on the Latvian Hilfspolizei. Synagogues were destroyed and roughly 400 Jews were killed.

The Arajs commandos performed the arrests and they burned the synagogues down. Two eyewitnesses deny, according to Professor Ezergailis, that any people were in the synagogues when they were burned.

[46]       The Germans sought to hide their role in the killings; the Arajs commandos, for example, in the initial phase, were prohibited from wearing any uniforms of any kind. Essentially, the Germans wanted to present the view that the events were spontaneous pogroms or actions on the part of the civilian population. In reality, however, many of the Arajs commandos were military-connected.

[47]       Professor Ezergailis estimates that at least 20,000 of the approximately 85,000 civilians who perished in Latvia during the Nazi occupation were directly killed by Arajs' men, and that 15,000 of the 21,000 Jews killed in small towns were directly killed by Arajs men. The number of murders that the Arajs commando participated in directly or indirectly was placed as high as 60,000 by Professor Ezergailis.

German Policy in Latvia

[48]       There was, from the very beginning, a clear policy to not allow the restoration of Latvia as a nation; the Germans never intended, as many Latvians had hoped, to restore the national independence of Latvia. The Germans intended to populate Latvia with German people. The Nazis later pursued methods to ban all expressions of national identity; for example, all symbols of Latvian pride or of the Latvian nation, such as flags or a Latvian army, were prohibited. In essence, the aim was to diminish Latvian culture. Nevertheless, Professor Ezergailis overstates the Nazi aim when he says there was a plan "to annul Latvia and to liquidate the nation's language and culture." However, the Professor admitted that this liquidation was not along the same lines as the liquidation of the Jewish people. On the general question of German aims in Latvia, I prefer Professor Kwiet, but I do not see his views as greatly different from those of Professor Ezergailis.

[49]       Essentially, the Germans attempted to achieve two goals in Latvia, as it was part of the Reichskommissariat Ostland: the "Germanisation of all racially acceptable elements" and the colonisation of Germanic people through the evacuation of desirable elements. In other words, Latvia in the final analysis was to be annexed by Germany to become part of the greater Germanic empire, and it was used then as a place for Germanisation.

[50]       Land self-administration was one method of deceiving the Latvian people into believing that they had something like self-government. General Valvmanis was directly in charge of land self-administration. Widespread Latvian disappointment with the Germans began in the autumn of 1941. For example, in July 1941, numerous Latvian volunteers wanted to join police battalions or military units in order to fight the communists. However, by early 1942, when the Germans sought to organize a small number of police battalions, they had difficulty doing so.

[51]       The Rosenberg Labour Decree was issued in December 1941, prescribing compulsory labour service for the Latvian population, after registration. Forced labour, which entailed actual deportation to Germany, was not prescribed until 1943. Pursuant to the Rosenberg Labour Decree, everyone, in order to work, had to register. The registration list was then used for enlisting and mobilizing the Latvian labour force. Individuals could not be unemployed and they could be forced to serve the German war effort. Only those who obtained "indispensability certificates" from the German authorities, certifying that the holder was a civilian whose job furthered the war effort, were able to avoid the draft. Improper avoidance of the decree was governed by penalties; indeed, Section Four of an earlier Rosenberg decree, dated August 5, 1941, stated,

[v]iolations of this ordinance and the regulations issued to implement it shall be punished with a penitentiary or jail sentence.

Professor Kwiet, however, did not believe that a police member would have been jailed or executed pursuant to the Rosenberg decree if he wanted a discharge; Professor Kwiet was unaware of any case where an individual had been shot for resisting or deviating from the decree.

[52]       There was a subsequent conscription notice dated November 17, 1943, which conscripted all officers and instructors of the former Latvian army, as well as all men born in the years 1915 to 1924. Professor Kwiet testified that this conscription notice only applied to those who were not employed or were not serving in other capacities, such as a police battalion. In my view, however, it is clear that everyone in the above categories had to be part of the German police or army by November 17, 1943. Professor Ezergailis, however, would place the date much earlier.

[53]       In this regard, it is interesting to note some correspondence dated February 1948, from Major Wright, Chief of the RCMP Security in Europe at that time. He states that "the German method of procedure for recruitment was to endeavour to get Baltic peoples and other non-Germans to serve in their forces"; the alternative given was a "concentration camp or worse".

[54]       By letter dated January 15, 1948, R.N. Munroe, District Superintendent of Immigration, indicates,

Please be advised that the Canadian Immigration rules regarding persons who served with the enemy during World War II have recently been amended, and it may now be possible to approve admission to Canada if it is definitely established that their service with the German army was rendered under physical compulsion.

This comment was in response to a letter from a Canadian citizen, seeking admission into Canada on behalf of a close relative who was a prisoner of war in England. The letter seems to indicate that the onus lay on the potential immigrant to prove that he had been physically compelled to serve in the German army. Indeed, the standard of compulsion would seem to have been a high one, according to Major Wright. By letter dated February 3, 1948, he appears to take the position that the compulsion would have to be very strong for him to agree that these individuals served under compulsion. He goes on to state,

[a]s you are aware, many hundreds of thousands of individuals refused to serve in the German army and were either deported for forced labour or were placed in concentration camps, or died as a result of their adherence to their principles.

[55]       I also note that Professor Ezergailis said that perhaps a third of the people drafted into the German armed forces evaded the draft, his point being that this was conscription, not voluntary service. However, Professor Ezergailis' comment also shows that a considerable number of those drafted were able to evade the draft; as such, it raises doubts as to whether conscription really amounted to coercion. Ultimately, though, I would still question whether one could say that the people serving the German armed forces after September 1st, 1942, were, in fact, really volunteers, under the circumstances. Under the Rosenberg Labour Decree of December 1941, employment was compulsory.

Mr. Vitols in the German Administration of Latvia

Early war years

[56]       The respondent admitted that his first six-month contract with the Madona police was voluntary and he joined because he wanted a job. The respondent does not admit that from September 1941, he knew he was joining a military-style or para-military operation. This evolved over the next year and a half. The respondent gave no evidence that he ever attempted to leave the police at any time, whereas others did leave and others still took the riskier route of deserting.

[57]       Although the respondent showed that the Jewish people in Madona had all been eliminated prior to September 1, 1941, it was the position of the Minister that this was unimportant. The Minister argued that crimes were committed in respect of civilians, some of whom bore the label of 'communist' or 'bolshevist', and others who were suspected of being partisans, some of whom were Jewish. The Minister's position was that Mr. Vitols was not a clerk and that he actually attempts to minimize his role. Since he worked for the Chief of Police, it is likely that he participated in, and certainly would have had knowledge of, police conduct, even if he was not personally involved in these very specific roundup activities.

[58]       However, other than a memorandum which showed that Mr. Vitols was an instructor for some police training, there is insufficient evidence for me to come to the conclusion that he was other than a clerk in the police until the spring of 1942, when he was transferred to the 2nd Police Precinct in Gulbene as a police price inspector. Mr. Vitols did admit he trained other police members in the use of arms on one or two occasions, a duty assigned to him because of his Latvian military background. He was a price inspector, among other duties, in Gulbene, in the second half of 1942.

[59]       Mr. Vitols was transferred back to Madona in the fall of 1942. He was Chief, responsible for leadership and organization of an auxiliary police reserve, known as Group C, established by the German Order Police in the Madona District. I do not accept Mr. Vitols' evidence that he was just doing clerical work and personnel management after the spring of 1942.

[60]       Subsequently, during February and March 1943, the respondent and other members of the Madona District Police were incorporated into the 281st Schutzmannschaft (the Latvian auxiliary police battalion), then involved in a large-scale anti-partisan operation known as Winterzauber ("Winter Magic") in the Latvian-Belorussian border district. Mr. Vitols testified that he, like other members of the Madona District Police, had no choice but to take the transfer. He did not know exactly what would happen to him if he refused, but there were rumours spreading that those who refused were punished. In the 281st police battalion, the respondent was a second lieutenant and platoon commander.

[61]       Operation Winterzauber was a large German operation comprising 4,000 men and 700 vehicles. The actual fighting took place from the 15th or 16th of February 1943 until the end of March 1943. Professor Kwiet testified at pp. 121-122:

Operation Winter Magic was only one of many similar campaigns carried out in these days, but it was one of the larger ones, and with horrific consequences, and it required the deployment of various police and SS forces, as well as some units of the regular military, and it was a campaign designed to cleanse a very specific area, [...a 40-kilometer wide strip of land at the Latvia-Belorussia border...] of partisans and to secure more or less this border region from threat or the infiltration of partisans coming from neighbouring Belorussia.

[62]       The overall aim was to leave behind dead zones. Villages, used by partisans for their bases, were razed to the ground. One document, dated April 2, 1943, reports that the scorched earth policy was successful; most of the territory was turned into a wasteland or dead zone. The civilian population was either executed on the spot or was deported for forced labour. Children were separated from their families, placed with orphanages or handed over to Latvian families. Professor Kwiet further testified, at p. 122, "[i]t was one of the most horrific and criminal acts ever committed in the history of Latvia," and, that the first Winterzauber attack by the troops violated all moral and international law. However, it was the security police or the SD and not the troops that were primarily implicated in such violations.

[63]       The High SS and Police Leader Ostland, Friedrich Jeckeln, who was able through his position to command both Security Police and Order Police troops at the same time, established two combat groups. The first combat group was headed by the SS and Police Leader of Latvia, Schröder. Schröder's group included three auxiliary police battalions, and in particular, Police Battalion 281 to which Mr. Vitols belonged. In addition, there were Ukrainian and Lithuanian police companies. The second group, led by Knecht, commander of the Order Police, comprised four Latvian police battalions. The two combat groups were assigned one squad of the Security Police each. The one attached to Schröder's group was called Reconnaissance Commando B (Erkundigungskommando B).

[64]       The 2nd Company of the 281st Battalion, led by the Madona police chief, Reineke, was predominantly composed of policemen from the Madona District Police and of former members of the defunct Latvian army.

[65]       Professor Kwiet relied on reports which were sent back in accordance with the German chain of command. The messages, sent either by telex or by radio, described almost on a daily basis not only the operation, but the result of the actions taken by the two combat groups. The orders and instructions for Operation Winterzauber were to destroy each village in the operation area at the Latvian-Belorussian border which could be used as a base for partisans, and to execute all partisans and persons suspected of being partisan supporters. These orders and instructions permitted extraordinary measures whereby the whole male population between 16 and 50 was killed while the female population was sent to concentration camps and forced labour. Documents point to the high number of disabled and elderly people executed.

[66]       Once the troops had occupied the village, they finished the search through the forest to the swamps or other regions. Those captured - the partisans and their supporters - were kept detained until the security police arrived. An interrogation followed and they were then shot on the spot. Once this step was taken, injured and disabled persons, for example, or those regarded as unfit for work, were also shot on the spot. Women and remaining men were deported, evacuated, resettled or driven out of the area, ending up in forced labour camps typically in Germany. Children were separated from their families. Mothers from whom children had been separated were sent to concentration camps in Germany. Approximately 1,000 children stayed behind, either in orphanages or with Latvian families.

[67]       I take issue with Professor Ezergailis' description of escorting the children to the rear of the battle lines in Operation Winterzauber as an act of mercy. If the men escorting the children knew the children's ultimate fate, they were implicated in a serious crime. I do not agree with the applicant that the partisans were civilians. However, I accept that some civilians were targeted in Operation Winterzauber.

[68]       It is not possible, on the evidence, to determine the exact percentage of villages burned by each side. The Russians burned a substantial number of villages, but less than half of the villages. Only company commanders and their superiors had authority to issue orders to burn a town or village outside of combat. In combat situations, however, the troops were permitted to burn towns and villages. Professor Kwiet admitted that a portion of village burnings attributed to Germans were actually the responsibility of the Russians. He also agreed that when the German police battalions withdrew, they were often pursued by partisans. It was still a combat situation, in his opinion.

[69]       At the beginning of Operation Winterzauber, there was a general directive from the High SS and Police Leader to either the security police or the SD as well as the two combat groups. The orders then filtered through to those units engaged in the operation. After an order was given, as a rule, the combat troops moved in, attacked the village or combed through the area assigned to them and killed all those who were engaged in the actual fighting.

[70]       Although there were many orders in writing, Professor Kwiet testified that the orders that would have reached as far down as platoon leaders were not in writing. Professor Kwiet reviewed some of the operational orders issued by High SS and Police Leader Jeckeln, and agreed on cross-examination that none of the battalions listed on the distribution list included the 281st battalion, to which Mr. Vitols belonged. Documents indicate the commander of Knecht group receiving the orders, but do not show the commander of Schröder group receiving the orders. As noted above, the 281st battalion was part of Schröder group. However, two German operational order documents show that Schröder and Knecht groups were to thoroughly cleanse certain territories of bandits (partisans). While the main responsibility for the elimination of the population was with the Security Police and SD, the troops in battalions were tasked to help.

[71]       Mr. Vitols denied participating in any atrocities. He testified he was a platoon commander of 35 men in Operation Winterzauber. There were three companies in the battalion and each company consisted of three platoons. There was also a supply platoon. During Operation Winterzauber, Mr. Vitols and his platoon received a daily order from the company commander: comb through the forest and look for partisans. These orders were carried out.

[72]       Several times, they met with partisans. The partisans never started any attack. If they were surrounded, they fought until they were all killed. If there was any possibility of escape, the partisans tried to escape. Mr. Vitols stated that his platoon was not involved with civilians and did not have orders regarding them. As soldiers, they were supposed to conquer the enemy, not civilians. Mr. Vitols testified that his platoon did not kill any partisans, although he knew that there were some killed. In my view, it is implausible that Mr. Vitols' platoon would not have killed any of the partisans they encountered in combat.

[73]       Mr. Vitols was asked about Professor Kwiet's comments. He testified that he had heard about the atrocities committed against civilians and about villages being burned, but that he never saw those events. He testified that those events must have occurred after his battalion was liquidated. He also heard that some units from the rear had transferred persons to Germany for forced labour. Mr. Vitols indicated that he had never had contact with those units; he heard they were SD units.

[74]       In my view, there is no evidence which would support Mr. Vitols' testimony that the atrocities happened after his battalion was liquidated. It is implausible that he would not have seen smoke rising from the villages that were burned.

[75]       I find Mr. Vitols to be credible when he states that he did not participate in any of the atrocities. In my view, his role was limited to participation in the fighting with and killing of partisans in combat situations, as a member of the 281st Battalion. Mr. Vitols, like the majority of Latvians at the time, regarded Russia as the real enemy of Latvia, not Germany.

[76]       At p. 489, line 23, Professor Kwiet states that "Winterzauber failed more or less." This is noteworthy because, as the respondent submits, the applicant, relying on German documents, states that Winterzauber was a success. However, according to Professor Kwiet, Winterzauber was initially a success for the Germans, but the partisans returned shortly thereafter. This discrepancy suggests another reason why Nazi documents cannot always be taken at face value.

Mr. Vitols - The Remaining War Years, 1943-1946

[77]       After Winterzauber, the 281st battalion was disbanded in Riga; its members returned to Gulbene in the Madona District. Mr. Vitols testified that he was transferred and continued in service with the 277th Battalion from May to September 1943. His testimony in this regard is supported by two pieces of documentary evidence.    I note that on the document listing the individuals from the 281st Battalion who were to return to Gulbene, Mr. Vitols name is crossed out; clearly he did not return to the Madona District at this time. In addition, Mr. Vitols' service in the 277th German Battalion is noted on his 1986 application for a German pension, which he now receives for his wartime service.

[78]       Mr. Vitols testified that the 277th Battalion was part of the border police or border guard in response to smaller scale anti-partisan actions east of Madona in the Lubana area and at Lake Lubana. This is consistent with the document, dated April 2, 1943, which indicates that it is not inconceivable that the partisans who escaped to the north and east during the operations would soon be able to carry out attacks on Latvian territory.

[79]       Mr. Vitols then testified that he was transferred back to the Madona area by the Chief of Police Reineke, to supervise all the men of C group. C group was composed of farmers who had served in the army and knew how to handle weapons. Group C was designated to fulfil the duties of an "alarm commando" responsible for night patrols to search each district for partisans. Often, there was partisan activity around Lubana District. Upon receipt of information of partisan activity or theft, a special C group unit was formed to investigate. These anti-partisan sweeps were much smaller in scale than the Winterzauber operation. Mr. Vitols testified that his particular unit was formed in December 1943, but that others were formed earlier. Mr. Vitols claimed he held an office writing job from the period of September to December, 1943. By December 1943, he was a lieutenant and held that position for the rest of the war.

[80]       Mr. Vitols received a German decoration as of April 20, 1944 - a War Cross 2nd Class - in respect to his activities during an engagement with a partisan guerilla group in the Lake Lubana District and the Lubana Forest in the winter of 1944. A certificate dated May 28, 1945, was issued. Mr. Vitols testified that his unit did not sustain any losses, but that the German unit had three casualties. Mr. Vitols and his unit returned to the field to pick up the fallen Germans and brought them back to Madona. Since the partisans were placing mines under German soldiers' bodies, retrieving the bodies was a dangerous operation.

[81]       In July 1944, the regular Russian army came to Lubana. Mr. Vitols retreated to Madona and took a position with the 19th Division on the road that goes from Cesvaine to Madona. A battle lasting three days ensued. He received a silver assault badge from the German forces for his actions in fighting the Russians in Pomerania. He testified that he is still proud of the war decorations he received. Group C was recalled back to Riga in September and divided into new units. Mr. Vitols was given orders to assemble at certain places in Riga and he was assigned to Captain Meyer's special assignment unit.

[82]       This unit was made up only of Latvians and belonged to the 15th Division of the Latvian Legion. The battalion consisted of three companies. Mr. Vitols was the commander-in-chief of one company, in charge of about 150 men. His company dug tank barriers and special strategic ditches in Germany.

[83]       In September 1944, he joined the Latvian Legion or Waffen SS. The Legion was under Latvian authority but received its higher orders from the Germans, as it was part of the German structure. Both Professors Kwiet and Ezergailis agreed there was no evidence that the Latvian Legion or Waffen SS was ever engaged as a unit in atrocities.

[84]       In my view, although Mr. Vitols was not conscripted, he had no alternative but to accept the transfer to the Latvian Legion. It is plausible this might have been the view of the Canadian security screening authorities at the time of Mr. Vitols' admission into Canada.The respondent admitted that the Latvian Legion or Waffen SS was found to be a criminal organization by the military tribunal at Nuremberg, but that there were exemptions for certain purposes, including an exception made for individuals who were conscripted and were not guilty of war crimes.

[85]       Mr. Vitols went to Germany on October 10, 1944. He worked on anti-tank ditches and fortifications as part of an emergency response company. When the Russian army entered Germany in 1945, his 15th Division retreated as far as it could. The Soviet army then attacked. Mr. Vitols and his group retreated west and planned to surrender to the Allies, to the English and American military forces. According to Mr. Vitols, they were unwilling to surrender to the Soviet army, because they would be killed, shot or sent to Siberia. On May 2, 1945, Mr. Vitols surrendered near Schwerin, Germany, presently part of Poland. At his time of surrender, the respondent had identification with him.

[86]       Mr. Vitols was then held in three prisoner of war camps. At the third camp, in Belgium, to which Mr. Vitols was transferred in September 1945, there were over 10,000 other Latvian soldiers. This camp was run by the British army.

[87]       A personal data sheet, completed at the POW camp on August 22, 1945, shows Mr. Vitols listed as a member of the 1st Latvian Division Infantry Regiment Five. There was evidence from Professor Ezergailis and from the report of Professor Kwiet that the 15th Division of the Waffen SS was also known as the 1st Latvian Division. The word "army" also appears. Thus, it would seem that there was no deception of POW authorities, since they would have known to which division Mr. Vitols belonged.

[88]       Mr. Vitols' evidence was that he was not asked about his wartime service. When he surrendered in May of 1945, he was in uniform; the sleeve of his uniform bore an identifying crest or emblem which placed him as part of the Latvian Legion. In addition, he was in the company of a Latvian Legion unit. The respondent states that, on the evidence, it is clear that the allied authorities knew who he was and I find that they knew he was a member of the Latvian Legion.

IV. The Postwar Period

[89]       Mr. Vitols was a prisoner of war in Belgium until March 1946.

[90]       Upon release on March 27, 1946, he received a certificate of discharge document, dated the same date. The certificate of discharge document listed several options for describing the military background of a prisoner of war, including Waffen SS. Mr. Vitols' certificate, however, states that he was discharged from the "army". Thus, it appears that the camp administrators chose to identify members of the Latvian Legion as "army", despite membership in the Waffen SS. In my view, the British military authorities made a deliberate decision to identify members of the Latvian Legion or Waffen SS as "army" or "Wehrmacht". Further, I find that the authorities, who at that time were the American and British military, did so deliberately for the benefit of the discharged members of the Latvian Legion. This was in keeping with the American perception, in the aftermath of WWII, that the real enemies were the Soviets.

[91]       This attitude is reflected in The Handbook Governing Policy and Procedure for The Military Occupation of Germany, which was issued in April 1945 by SHAEF (Supreme Headquarters Allied Expeditionary Force). At this date, the war was not over; accordingly, the document only anticipates future events. However, it foreshadows the lenience of the Allied forces toward non-German collaborators who had fought against the Soviet occupiers and now faced Soviet repatriation. Under the heading "Non-German nationals who have served or collaborated with the enemy", at number 402, paragraph (b) states

Treatment after defeat or surrender:

(1) those who have been discharged or released by the demobilizing authorities will be dealt        with as displaced persons according to their nationality.

I accept the evidence from Professor Ezergailis, who testified at p. 2065 of the transcript, that people were treated as displaced persons according to their nationality.

[92]       The U.S. documents of that era reflect a similar approach. An outgoing classified message from the U.S.War Department Classified Message Center, dated March 9, 1946, states in paragraph 1:

All Baltic and Polish nationals captured while serving in the Wehrmacht should be released from prisoner of war status and given the status of displaced persons, except:

a)             Those against whom there is satisfactory evidence that they are war     criminals;

b)            [only pertains to Polish citizens]; and

c)              Those nationals of the Baltic states who, on the basis of satisfactory evidence, appear to have of their own free will volunteered for service in the German army...

Therefore, they should be treated in the same manner as other German prisoners of war.

March 1946 is the same month that Mr. Vitols was released from the POW camp. As far as the American military authorities were concerned, it would appear that Mr. Vitols clearly fell within the general rule under paragraph 1, entitling him to release from prisoner of war status followed by the conferral of displaced person status upon release.

[93]       The IRO Manual for Eligibility Officers, which was not used until 1948, states at p. 106, paragraph 10 that members of the Waffen SS were outside the mandate of the IRO with the exception of members of foreign SS units who were able to plausibly demonstrate that they were conscripted. It further states, at p. 57, paragraph 21, that other groups such as SS police regiments, security service, Einsatzgruppen and the Schutzmannschaften were prima facie outside the mandate of the IRO under the constitution; however, in the case of Schutsmannschaften, this presumption could be rebutted if the applicant could produce evidence that he was conscripted and if it was plausible that he did not commit atrocities or otherwise persecute civilian populations. However, Mr. Thomas testified that the thrust of the UNRRA in the period prior to January, 1948, was less particularized, seeking to exclude war criminals, traitors and quislings.

[94]       Later, the administration of the camps had to appear tougher, because the Soviet Union insisted on the return of all its nationals, even those from illegally occupied countries. I note that the independent country of Latvia had been occupied illegally by the Soviet Union in 1940, pursuant to the notorious secret protocol to the Hitler-Stalin Pact of 1939. Western allies, other than the Netherlands, did not recognize the occupation of Latvia by the Soviet Union after World War II. Mr. Thomas, an IRO expert, testified about the IRO constitution having more restrictions than the UNRRA constitution. The SHAEF constitution appears even more lenient, talking of both collaborators and members of enemy forces being treated as displaced persons.

[95]       Mr. Thomas stated on cross-examination that when the IRO was set up, the Soviet Union refused to participate, given their respective conflicting policy mandates. The prime function of IRO was resettlement, whereas the Soviet Union sought repatriation of their citizens, including those from countries which it had occupied immediately prior to hostilities with Germany.

[96]       The official policy stipulated that Russians were not permitted into displaced persons camps. The Russians, however, essentially forced entry rather than obtaining permission. In the end, they were granted permission.

[97]       Mr. Thomas also stated that American army officers did some of the screening in the camps, but was unable to state the length of time such a procedure was in place.

[98]       The respondent states that there was considerable sympathy for Baltic peoples. Further, Latvians were never regarded by the American occupation authorities as being citizens of the Soviet Union. There was also considerable revulsion over the Soviet Union's brutal treatment of those forcibly repatriated under the Yalta Accord. Professor Ezergailis stated that many people committed suicide when faced with the reality of repatriation. The Soviet Union's position was that individuals who had fought against them were war criminals.

[99]    The parties agreed that

[a]fter the Second World War, there was considerable lobbying of and protest to the U.S. Military government in the U.S. Zone in Germany by various groups of Latvians and Estonians. These efforts were aimed at including members of the Baltic Legions in the groups of persons accepted into displaced persons camps, notwithstanding their characterization as "Waffen SS" and "voluntary".

Displaced Person Camps - Screening at Fulda and IRO Application

[100]    After being released from the Prisoner of War Camp on March 26, 1946, Mr. Vitols resided in displaced persons camps in Fulda and Tuttlingen, Germany, for most of the next four years. Mr. Vitols entered Fulda, which at that time was controlled by the U.S. military, pursuant to his certificate of discharge from the POW camp. This certificate showed Mr. Vitols had been in the Latvian Army. He testified he was not asked about his wartime service and was led to believe that the camp had no objection to soldiers' presence.

[101]    All documents dating from the war, after the war in Europe, and arrival in Canada consistently list Mr. Vitols' correct name, correct nationality, and correct date of birth.

[102]    Mr. Vitols testified that he was screened at Fulda one year after his arrival, by the American military, who applied the UNRRA guidelines. He further testified that the commander of the camp knew many soldiers from Nazi occupied countries were in his camp, but advised them to deny their participation in the Nazi-led armed forces. The respondent disclosed that he had been a career officer lieutenant, but lied in the U.S. screening about his occupation during the war, since he knew from the camp commander that he would be screened out if he truthfully disclosed his actual wartime occupation.

[103]    The respondent's brother, Robert Vitols, was also at Fulda. He had a similar background, having been first in a police regiment in Riga, and then in the same division of the Waffen SS (the Latvian Legion) as Peter Vitols.    Upon disclosing this information to the U.S. military at Fulda, he was screened out and eventually moved to the French Zone. The respondent left the Fulda displaced persons camp to join his brother on March 1st, 1948. The respondent registered as a displaced person at Tuttlingen in the French Zone on March 3rd, 1948, where he obtained employment. The respondent and his brother both had paid jobs with the Gendarmerie d'auxiliaires étrangers guarding German prisoners of war until May 24, 1948. Subsequently, the respondent worked as a tree cutter in German forests from June 2nd, 1948, until June 30th, 1949, which efforts were part of the German reparations to France.

[104]    Mr. Vitols applied for displaced person status with the IRO in the French Zone on April 8, 1948, although he was not living in a displaced persons camp. He does not remember being interviewed. The IRO would have completed the application form, known as a CM-1 form for Mr. Vitols. Whereas the surviving CM-1 form in Mr. Vitols' immigration file is in French,the original CM-1 form would have been in English.

[105]    Mr. Thomas, an expert on IRO policy, stated that the constitution of the IRO was in place on December 1, 1946, but the organization did not start up until July 1, 1947. For the next six months, it was called the Preparatory Commission of the IRO. The IRO constitution, contained within the IRO Manual for Eligibility Officers, excluded from assistance those who had voluntarily assisted enemy forces since the outbreak of World War II. There was no doubt in Mr. Thomas's mind, that the respondent's membership in the police battalions, the auxiliary police, the Schutzmannschaft battalions and the Waffen SS would have constituted grounds for exclusion. As far as Mr. Thomas was concerned, auxiliary police who did merely clerical jobs were found to have voluntarily assisted the enemy.    There was no evidence, however, that Canada or the U.S. ever declared war on Latvia. In light of my later findings on the discretionary powers of visa control officers, and in light of the understanding among such officers that membership in the "Latvian Army" connoted membership in the Waffen SS, the question of whether Latvia was part of the enemy is irrelevant.

[106]    Mr. Thomas stated that a person who had joined the police in Mr. Vitols' circumstances would not have been eligible for IRO assistance and that he would not have considered those circumstances as merely a continuation of ordinary peaceful duties.

[107]    The applicant submits that the respondent by his deception never gave the UNNRA, and subsequently the IRO, the opportunity to determine his bona fide eligibility. Thus, his de facto eligibility to remain in the camps and obtain assistance was gained entirely through his admitted deception.

[108]    Mr. Vitols believes most of the information on the French language IRO form CM-1, dated April 8, 1948, came from the interview in Fulda. It is unclear in which language the interview was conducted. Mr. Vitols testified that he spoke no French at the time he signed the French CM-1. But he certainly admits that it was his signature on the French CM-1.

[109]    The form clearly contains information that is not true. There was quite lengthy cross-examination to the effect that some information on the form had to have been added in Tuttlingen, i.e., after the Fulda interview and thus not in Mr. Vitol's presence. The form includes information relating only to Tuttlingen.    It was Mr. Vitols' evidence that such information could have been added by the people in the French zone doing the interview. It was his belief that the lies contained in that document would have been from the original interview in Fulda in 1947. An identification number followed him from Fulda and was incorporated into that document.

[110]    In my view, Mr. Vitols signed the original CM-1 form at Fulda. Additional information was added in Tuttlingen; that information was not on the form as signed by Mr. Vitols at Fulda. However, as was acknowledged by Mr. Vitols, when he signed the form at Fulda, it contained the lies here under consideration. Nonetheless, he states that he would have corrected the misrepresentation on the form if he had been interviewed at Tuttlingen and questioned as to the veracity of the Fulda document.

IRO Application (CM-1 Form)

[111]    The respondent contended that the CM-1 document can only be considered material to the issue of whether or not there were false pretences at the time Mr. Vitols applied to Canadian immigration on two grounds:

1) that Mr. Vitols adopted the form. There is no evidence, however, that Canadian Immigration or Security officials ever asked immigrants to adopt such documents; and,

2) that the Canadian screening officer had the CM-1 document at the time of the interview and that he used it to make sure that the information being provided by Mr. Vitols was consistent. The respondent, however, was unaware of whether the document was actually used at the interview since he did not see the documentation in the possession of the interviewer.

[112]    Along the same lines as item 2 above, the respondent raised the critical issue of which documents, and specifically, whether the CM-1 form, comprised Mr. Vitols IRO application, which may have been used by Canadian authorities in deciding to admit him into Canada. This determination involves the examination of a complicated paper trail.

[113]    Mr. Vitols' application for assistance, the CM-1 form, dated April 8, 1948, contains three Fiches Individuelles (Register Cards). All bear the number 88288. The third fiche also has the number 172.044 just below the 88288 number. This 88288 number can also be seen on the CM-1 application, below the 556472 identification number from Fulda. Thus, it appears that a new identification number was given to the respondent in the French zone, without losing track of the identification from Fulda. The CM-1 French form on p. 1 also has the 172.044 identification number. This identification number also appears, handwritten, on the front of the first and third fiches in ink, as opposed to typed-in identification. The identification number 172.044, however, does not appear on the front of the second fiche; rather, it appears on the back. The number is thus on all three fiches - the front of the first and third, and on the back of the second and third. All fiches, on the back, bear the identification number from Fulda: 556472.

[114]    A list of people living at the Tuttlingen Camp, dated April 30, 1948 shows Mr. Vitols' correct name, date of birth, nationality as well as the CM-1 number 172.044. Similarly, an alphabetical classification list from Tuttlingen, dated March 1, 1949, has the same number right beside the 88288 number. Finally, there is an IRO document with the nominal roll of persons departing from the resettlement centre, Ludwigsburg, on April 7, 1950, group resettlement to Canada via Bremen. Mr. Vitols is listed under his correct name. Also provided are his marital status (married), date of birth, nationality, country of citizenship and so on. He is listed as a sugar beet worker. The field office is in the zone of Butzbach. This document, however, has a different identification number from his CM-1 number. It is listed as 561207, not 172.044.

[115]    When the applicant's officials were obtaining evidence for this case, and used the international tracing service who had stamped these documents, the applicant obtained references to this CM-1 number, 561207. This 561207 number does not appear to relate to the identification number from Fulda, or material from Tuttlingen.

[116]    On an undated Registration Card, a CM-1 form number appears. At the top, the number is listed as CM-1 561207. Therefore, it seems obvious that the number 561207 was the CM-1 number that was listed in 1950, pertaining to Mr. Vitols as a sugar beet worker. On the top left of the card, his identification number from Fulda, 556472, appears. A stamp on that document states "record destroyed". At number 8 of the card - "Destination or Reception Centre" - the first word appears to start with "H" or "W", and then it seems to say "by army". Then it seems to say, "all cleared 1948" or "see cleared 1948". On the reverse side of the Registration Card, under "Remarks", a stamp states "destroyed on June 8th, 1951". Beneath this, as part of the stamp, many abbreviations are listed. The first abbreviation is "CM-1". The inference could be drawn, then, that a CM-1 form was destroyed on June 8, 1951.

[117]    Under number 9 on the card, there is some handwritten text in abbreviations. One abbreviation provides CM-1. Then there is reference to something sent to CP Fulda on February 10, 1949. Then it states what could be A-S-S-I-G (perhaps assigned). It appears to be April 10, 1950, and it states see receipt list. April 10, 1950 is in relation to the nominal roll of persons departing from the resettlement centre. April 10, 1950 is only three days after the date mentioned on the roll: April 7, 1950.

[118]    As indicated above, the respondent has raised the question of what documentation, including the CM-1 form, if any, the Canadian immigration authorities would have had at the time Mr. Vitols was interviewed, particularly in light of the foregoing documentary evidence. When Mr. Vitols was shown the IRO nominal roll in examination in-chief, he said that he was registered at Butzbach, but he was not screened at Butzbach. There is no evidence of a subsequent screening at Butzbach, but there is evidence of an apparently new CM-1 form. I note that the Registration Card is the document that speaks to a CM-1 being destroyed on June 8th, 1951. This leaves the possibility that whatever CM-1 was in existence in 1950, it was later destroyed in 1951. Equally, this French CM-1 form was, for whatever reason, not destroyed, whereas the apparently new CM-1 form in 1950 was destroyed. The original CM-1 Form would have been in English.

[119]    To follow through the paper trail of these numbers, Mr. Vitols' IRO travel document, a certificate of identity for purpose of immigration to Canada, dated March 16, 1950, gives his displaced persons identification number as 556472. It is a different number than what was on the French CM-1 form, 172.044. The respondent submits that it seems that the French had their own system and that they did not follow other systems; rather, they issued a new identification number. The respondent states that, at the very least, the documentation makes it clear that the French application form, CM-1, was not a document that the IRO was using at the time they assembled a file in relation to Mr. Vitols, because the certificate of identity does not have the 172.044 identification number. Instead, it contains the number 556472, which, while not on the front of the French CM-1 form, is on the third page, under heading 17, "Documents".

[120]    There does not appear to be an explanation accounting for the CM-1 form history. Mr. Thomas testified that people rarely transferred between camps. One occasion when it occurred was when there were family members in other camps and people wanted to join their family. Documentation was necessary for a transfer. A transfer form would be given to the refugee to be completed. It was Mr. Thomas' evidence that, in a few cases, the refugee was given his CM-1 form to take to the new camp; however, this was frowned upon and was against regulations. Normally, the CM-1 form was given to a courier for delivery to the camp commander, thereby ensuring that the form was not tampered with in any way. The original English language CM-1, according to Mr. Thomas, would be placed in the refugee's file. A person required a CM-1 form to enter a new camp. Mr. Thomas could not conceive of a reason why a copy of an existing CM-1 form would be made. Mr. Thomas also stated that it appears that each type of document was given a number depending on what the document was.

[121]    On Mr. Vitols' Canada Government Return (CGR) form, at category number 6, four options are listed with regard to marital status: single, married, widowed or divorced. The answer given is "M", and it appears that the "D" was stroked out and replaced by the "M". Pursuant to the evidence of Mr. Barron and Mr. Gunn, who testified about landing at the port, it is clear that Mr. Vitols declared himself as married, while simultaneously declaring himself as a sugar beet worker under the bulk labour program. The CM-1 form also showed Mr. Vitols' marital status as married. The respondent states that perhaps being married was not an absolute prohibition on sugar beet workers. Nevertheless, the respondent submits that if, as the applicant suggested, marriage was a bar to coming as a sugar beet worker and Mr. Vitols lied about being a bachelor, then the Canadian immigration authorities were not relying on the same CM-1 presented to the Court, or any CM-1 form that could have been either copied or translated into the French.

[122]    Mr. Vitols' brother, Robert, accompanied him to Canada. He is on the same CGR form although his name is blocked out. As one moves over to the right of the form, the blocked out portion is smaller and the strip broadens. Under the number 21, the form requests information on the name, relationship and address of the immigrant's nearest relative. For the respondent, the form states wife, Ruta. The line right below reads "s/law" which would be sister-in-law. Then it says "as above", that being Ruta who is the wife of Peter Vitols. We know that Robert Vitols had been screened out earlier at Fulda. The respondent states that if the Canadian screening authorities in Butzbach, or Ludwigsburg, were relying on Peter Vitols' CM-1, then presumably they were also relying on his brother's.    Robert Vitols had also served in the Waffen SS , in the same division as Peter Vitols. Presumably, then, if the Canadian screening authorities were relying on applicants' CM-1 forms, and were screening out members of the Waffen SS, they would have denied entry to Robert Vitols, who had been disqualified at Fulda on the basis of the disclosure of wartime activities already on his CM-1 form. Citing his brother's experience, the respondent states that there are logical flaws in the Minister's circumstantial evidence, and that accordingly, it has not been proven that the French CM-1 form before the Court entered into the Canadian screening at all.

[123]    Mr. Thomas, an expert on IRO policy, testified about an IRO black list which was put into effect in 1948. Its purpose was to inform all displaced persons camps of rejected applicants so that such individuals could not re-apply a second time. Mr Vitols' brother was screened out by the IRO at Fulda in 1947; the black list was put into place in 1948; and Robert Vitols came to Canada with Peter Vitols from Ludwigsburg in 1950. The respondent submits that if this black list existed, then the camp at Ludwigsburg did not trace information back to Fulda, or it was of no moment that Robert Vitols was screened out back in 1947; alternatively, the respondent submits that the black list was not a perfect system. It is clear, however, that Robert Vitols came to Canada correctly identified. Robert Vitols was travelling under his correct name and place of birth. The applicant replies that it is clear that the black list was not in effect in 1947. Robert Vitols died in Canada shortly before this hearing commenced and thus was unavailable to provide evidence.

[124]    Evidence was provided by Mr. St. Vincent, a former Canadian immigration officer who conducted refugee selection interviews in Europe from 1948 to 1951. He stated that the International Refugee Organization certificate of identity was completed by the IRO for the refugee. The IRO presented the selected person under the scheme for which he applied. The respondent stated that this was the reason why documentation listed the respondent's intended occupation as sugar beet worker upon immigration to Canada, not that he was already a sugar beet worker by occupation.

[125]    The respondent submits that Mr. St. Vincent's evidence is also important on the issue of whether a CM-1 was available in a file when the person was being screened by Canadian Immigration. The respondent submits that Mr. St. Vincent has the most relevant evidence to give on this point because, of all of the witnesses who have testified in this case, he was present in Europe during the relevant time, i.e., when Mr. Vitols applied to come to Canada. He went to Karlsruhe in June 1948 and then to a camp outside Munich for training, and continued on to work at processing centres throughout the Allied zones of the British and the French, and the U.S. zones in Germany and Austria. By contrast, all of the other former RCMP officers who testified about security screenings were in Europe after Mr. Vitols had arrived in Canada.

[126]    In Mr. St. Vincent's cross-examination, he stated that a displaced person's file consisted of the certificate of identity, or IRO travel document. There would also be an application form capturing similar information as in form 55, which was the application form for displaced persons sponsored by people in Canada. The file would also contain the IRO medical document. As well, a medical notification record - form number 1565 - from a doctor would be present. According to Mr. St. Vincent, there would be no other documents.

[127]    Mr. Keelan, who worked as a visa control officer in Germany for eleven months (1950-1951), also testified as to file contents during his security screenings. Mr. Keelan indicated that he would have the same file as the IRO. He stated that there would be a work history document, which looked the same as the Application for Assistance, the CM-1 form. Mr. Keelan indicated that there would be a minimum of information in the file that the IRO presented to him. Mr. Keelan further testified that in the course of his work, he realized that he was not being given the entire file by the IRO; accordingly, he insisted that the IRO give him the full file. The respondent states that Mr. Keelan agreed that at the commencement of his duties, when he was new to the job, he did not always have the benefit of the complete IRO file. As Mr. Keelan became more experienced, he insisted on having the entire file. However, by this time, Mr. Vitols was in Canada. Mr. Keelan stated that even once he started requesting the entire file, at times, especially for the bulk labour groups, the IRO would not always have the full history in the files.

[128]    In respect of the question of whether or not the CM-1 form was in the file at the time that Mr. Vitols was interviewed by Canadian immigration, the following information is relevant: Mr. Vitols' brother came overseas at the same time, from the same place, and was part of the same bulk labour program; his brother had been screened out in Fulda after he disclosed his wartime activities. If the Fulda document of Robert Vitols was available during his Canadian immigration interview and was used to test the consistency of Robert Vitols' answers in this interview, then the inference is that for Canada, it was of no moment that Robert Vitols had been screened out before on the basis of his wartime activities. If, however, the file did not follow the brother, then it is possible that the brother lied to Canadian officials about his wartime activities, or that he was not questioned on his wartime activities. This would also imply, however, that Peter Vitols' file did not follow from Fulda either, and so was not any part of the Canadian screening at that time.

[129]    In reviewing the conduct of Canadian immigration and security screening officials at the time of Peter and Robert Vitols' interview, it is important to consider the political context. By 1950, the IRO was under pressure to empty the displaced persons camps. Canada also needed more workers. The report by Mr. d'Ombrain, an expert on Canadian government policy, indicates that Canada's immigration policy at the time was "discretionary and discriminatory"; this was particularly evident in Prime Minister McKenzie King's famous 1947 speech, which established a new immigration policy. The respondent states that the nationalities most in demand from the displaced persons camps were Estonians and Latvians. The applicant admits and the respondent accepts the correction, that Estonians and Latvians were regarded as likely to be successfully assimilated into Canadian society.

[130]    The Canadian Encyclopedia states that in 1945, 110,000 Latvians who had fled the advance of the Soviet Union military forces to western Europe were classified as displaced persons. Of these, 14,911 eventually immigrated to Canada.

[131]    Another reason why Latvians may have been looked upon favourably is that many had fought with the Germans against the Soviets. After the Cold War began, the Soviet Union was regarded as Canada's enemy .

Mr. Vitols' Canadian Immigration Interviews in Europe

[132]    While still in Europe, Mr. Vitols was interviewed by Canadian immigration officials in 1950. The applicant admits that the immigration form in use at the time had no questions about wartime activities. I shall now review the testimony of RCMP and Immigration officers as to the procedure followed in immigration and screening interviews at that time.   

[133]    Mr. St. Vincent, who, as was noted earlier, was in Europe and in the field at the relevant time, testified that there was a Canadian immigration form which would be filled out by the IRO resettlement officer for the Canadian section. A form existed for a single person or a family. The form contained basic data regarding name, date and place of birth, family status, sex, and occupation. The form also had space for information regarding the individual's family accompanying him or her to Canada. Little else was asked on that form. Critically, nothing of the person's previous history was sought, e.g., occupation during the war, previous addresses. Therefore, the Canadian Immigration Officers asked only these limited questions during the interview and duly completed the back of the form.

[134]    At p. 1065, Mr. St. Vincent testified that form 55 was used only by persons applying for admission to Canada as sponsored individuals. Persons in displaced persons camps used a form capturing similar information as in form 55. One line on form 55 states "my occupation is" and is followed by a dotted line, which does not allow room for more than the current occupation, presumably. In other words, no details about past occupations were sought. The form does go on below to query whether the immigrant is a farmer or in business, and if so, particulars are required. Below that, the form further queries whether the immigrant is an employee; if so, then periods of employment, names and dates of employers, nature and permanence of position and present earnings were to be provided in the three lines given. The back of the form also devotes one line for information to be provided about the "occupation in our country." A new form, called the OS-8, was introduced at the end of 1950. At the time that Mr. Vitols was interviewed, the form in use simply did not ask detailed questions. Mr. St. Vincent indicated that it was his practice to ask for more information than that which was specified on the form.

[135]    The unequivocal evidence from all of the immigration and visa control personnel was that every displaced person coming to Canada from a displaced persons camp was required to go through the three-stage security and immigration screening process. The process entailed three interviews: a medical, immigration interview, and security screening. The latter was sometimes referred to as "stage B".

[136]    There was evidence which indicated that in some of the secondary field offices, only two interviews were conducted. As Mr. Vitols was not interviewed in a secondary field office, the evidence elicited on this point is not material to this proceeding.

[137]    Canada's security screening was comprised of checks by the RCMP visa control officers using various official intelligence sources and an interview with the prospective immigrant. The information disclosed by the prospective immigrant in his application to immigrate was utilized in conducting security checks. During the interview, the visa control officers asked questions beyond those in the application, e.g., questions relating to the applicant's antecedents, his residence, employment, membership in various organizations, and military service during World War II. The government of the day established guidelines governing the admissibility of immigrants from Europe, including security rejection criteria. The security rejection criteria, which identified categories of persons to be rejected as immigrants on security grounds, were disseminated to the RCMP visa control officers operating in the field.

[138]    Mr. Cliffe and Mr. Kelly, both visa officers during the relevant time, testified as to the utilization of intelligence sources. For example, Mr. Cliffe testified that reports from either British intelligence or the American counter-intelligence sources typically indicated whether a person had been an allied prisoner of war as of 1945 when the war ended. The report commenced by stating that a specific person had been a prisoner of war in a particular camp, i.e. British camp, and was then captured at a particular place, by the British army. The report would then summarize the individual's history and military background, i.e., his unit. As long as the individual listed his correct name and date and place of birth, he should have been capable of being tracked. These security checks were conducted prior to the granting of an interview. The applicant submits that the evidence discloses a clear pattern of using intelligence sources to the best of the officers' ability, prior to the in-person vetting process.

[139]    Mr. Cliffe also stated that there was a new process, implemented during his time period, which involved the use of a green form. Mr. Kelly, however, indicated that the green form was only instituted shortly after he arrived in the London office in 1951 as the supervisor of all the visa control officers. Prior to that, visa control officers used a screening procedure or intelligence sources, with which he did not appear to have been satisfied. Mr. Kelly also stated that there were big backlogs in using the intelligence sources before the green form was implemented.

[140]    The respondent was admitted into Canada before the date upon which the new green form screening procedure was implemented.

[141]    The applicant agrees with the respondent's contention that the interview contents were not standardized, in that the specific questions were within the discretion of an individual screening officer. The applicant adds two provisos, however. First, the applicant submits that, as stated by Mr. Cliffe, Mr. St. Vincent, and Mr. Keelan, the three stages of the interview process were absolutely standardized regarding displaced persons in the camps. Second, the applicant submits that the objective of the security screening interview was absolutely standardized to effect the determination that a prospective immigrant did not fall into one of the categories of persons to be rejected pursuant to the security screening guidelines.

[142]    Correspondence and Cabinet documents on security screening, from 1948 and 1949, along with Mr. d'Ombrain's report, illustrate that persons who served with the enemy in any capacity were considered inadmissible to Canada, without further qualification through the application of the screening guidelines. A letter from Laval Fortier to the Secretary of the Security Panel in the Privy Council, dated May 23, 1951, indicates that, in 1950, there was still a blanket rejection for collaborators. The testimony of Mr. Kelly confirms this fact. The applicant further submits that to have had any chance of entry into Canada, Mr. Vitols would have had to show satisfactorily that he was conscripted by the Germans. Mr. Vitols was not conscripted at the time he joined the police in 1941. By September 1942, , however, as a result of the Rosenberg Labour Decree and the increased demand for military personnel by the Germans, in my view, Mr. Vitols could not have left the police battalion voluntarily without punishment.

[143]    As for Mr. Vitols' interview with Canadian authorities in 1950, he testified that it lasted approximately five to seven minutes. He was asked as to his occupation. He answered that he was an officer of the Latvian army. He was then asked if he took part in the Second World War and he indicated in the affirmative. He was then asked if he had a blood group tatoo under his arm and he stated that he did not. He was also questioned as to work in the field; he responded that he had been raised on a farm and knew most farm work. According to Mr. Vitols, this was the nature and extent of the questioning. He was not asked about service in police units.

[144]    It appears that Mr. Vitols was seen by a standard three-person team. He was seen by a medical doctor, as evidenced by a health stamp. The doctor's name appears to have been MacDougall. He saw an immigration officer, apparently a Mr. Fred Gertson. I agree with the applicant's submission that the only person who would have asked about the blood group tattoo would have been the security screening officer; immigration officers did not have the security screening guidelines and were not interested in blood group tattoos. However, there is some doubt as to whether Mr. Vitols saw a security screening officer, as the evidence does not identify any such individual by name.

[145]    A report, dated August 5, 1947, lists all of the applicant woodsmen rejected by Canada on security grounds. It was forwarded from the Inspector-in-charge of Immigration Inspection Team. Several individuals were identified as being "Latvian Army". Clearly then, Canadian security authorities refused to allow some members of Latvian forces and some Latvian police entry into Canada. This evidence demonstrates that Canadian authorities, like the military authorities at the POW camp, understood that the "Latvian army" was the same as the "Waffen SS".

[146]    On this basis, the respondent submits that indicating that one was in the "Latvian Army" did not fool or deceive the Canadian immigration screening authorities. Latvians quite commonly used the term Latvian Army, even though it was also commonly known as the Latvian Legion, or the voluntary Latvian Waffen SS.

Definition of and Policies Regarding Collaborators

[147]    "Collaboration" was not defined in the Canadian immigration guidelines at the time when Mr. Vitols applied for admission. Until 1951, there were no specific guidelines for those who may have collaborated in the occupied territories and were no longer residing in those territories. Shortly after the war, the major concern of the security screening was to exclude communists from entry into Canada; less attention was lent to excluding collaborators with the Germans during the war. This is supported by the evidence of Mr. Cliffe, Mr. Keelan and Mr. d'Ombrain.

[148]    The Addenda of the Shorter Oxford English Dictionary, vol. 2, 3d ed. (Oxford: Clarendon Press, 1973), at p. 2613, defines the word "collaborate":

Collaborate, v. [verb], Collaboration, Collaborator. spec. [specifically] Applied to traitorous co-operation with the enemy - 1940. So Collaborationist.

The reference to 1940 indicates the origin of the word's connotation. There was evidence that the war on the eastern front did not begin until 1941. Therefore, the word seems to be associated with collaboration that existed in places like France and Holland, e.g. Luitjens.

[149]    The Shorter Oxford English Dictionary itself defines the word "traitor" used by implication in the term "collaborate". It states:

One who is false to his allegiance to his sovereign or to the government of his country; one adjudged guilty of treason or of any crime so regarded.

In reference to Latvia, to whom would someone who was cooperating with the Germans be traitorous? Latvia had already lost its independence to the Soviet Union which had occupied it for a year, ending in June 1941. Within the definition of "collaboration", there was no country to betray when cooperating with the Germans. Simply put, Latvia could not be betrayed since it no longer existed; there could be no traitor to Latvia.

[150]       The report of Mr. d'Ombrain (at p. 40) refers to a Memorandum by the Secretary to the Security Panel entitled "Immigration Security Policy — Nazis, Fascists and Collaborators", dated April 30, 1952. At the bottom of p. 40, Mr. d'Ombrain states that the memorandum reported that the RCMP did not support narrowing the prohibition on collaborators, noting that they believed that a person who had been disloyal to his country of birth may, if the occasion were to arise, be equally or more disloyal to a country of adoption. There is merit in the respondent's submission that RCMP screening officers would have a hard time suggesting that a Latvian was being disloyal to his country of birth when Latvia was first occupied by the Soviet Union, and then by Germany. There is no concept of traitorousness or disloyalty to one's country of birth in that situation.

[151]     There was substantial evidence that Mr. Vitols was a Latvian patriot, and thus critical of both the Soviet and German occupiers. Mr. Vitols' diary, from February to May 3, 1945, was entered into evidence to demonstrate his state of mind in 1945. The diary was dedicated to his family. He writes that he is thinking of his family and wondering what they are doing. He states that "at this moment the only thing that we all have is faith and more faith and the will to go through these times with honour, get through this sea of fire in which we are engulfed". At p. 12, he states, "[i]t is not just individual soldiers who are suffering, but the whole Latvian nation, because its best sons are destroyed in these senseless battles". And then a little later, "[i]f we could only free our country, our native land from the Red monster".

[152]    At pp. 15 and 16, he states: "[n]one of us think about shirking our duty."; at p. 18, "[t]he root of the problem are the Germans."; at p. 39, "I know nothing about my family, nothing of their whereabouts."; at pp. 45 to 47, "[w]e are devastated first because of this German villainy, and secondly because of those who will die in vain because of this German betrayal."; at p. 88, "[n]ow the Germans are suffering for all the injustices that they have perpetrated. Too bad that small innocent children have to suffer and be destroyed along with the adults."; at p. 107, "the Latvian who has fallen victim to German arrogance. They simply cannot understand that this chaos and misery was their own fault."

[153]    At pp. 196-197 of the diary, Mr. Vitols indicates that he has received five or six letters from his first family all at once, the last one dated February 24, 1945. He states that he knows that on February 25 and 26 the Russians broke through and cut off all of Pomerania from Konitz to Koslin. He states, "I cannot grasp this. Daddy is alive, but you have remained with our greatest enemy against whom Daddy has been fighting with his heart and soul in order to protect you. Now everything has been in vain. All the sacrifices for nothing."

[154]    In my view, what really matters in the present hearing is what constituted collaboration for the Canadian screening authorities. The definition of the term must remain the starting point in this analysis. Black's Law Dictionary, 6th ed. (Minnesota; West Publishing, 1990) at 261, defines "collaboration" as:

the act of working together in a joint project; commonly used in connection with treasonably cooperative efforts with the enemy.

[155] Further guidance is provided by a document entitled "Screening of Applicants for Admission to Canada." Dated November 20, 1948, it contains a list of criteria to be used by security screening officers in determining whether an individual was "unsuitable for admission." This document was the one used by screening officers in the field. It provides as follows:

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

(a) Communist, known or strongly suspected Communist agitator or suspected Communist Agent.

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

(c) Member of Nazi Party.

(d) Criminal (known or suspected).

(e) Professional gambler.

(f) Prostitute.

(g) Black Market Racketeer.

(h) Evasive and untruthful under interrogation.

(i) Failure to produce recognizable and acceptable documents as to 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.

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

(m) Trotskyite or member of other revolutionary organization.

Notably, these guidelines provide as one excluded group category (k), that is "collaborators presently residing in previously occupied territory." Mr. d'Ombrain, in cross-examination at p. 671 of the transcript, discussed category (k) in particular. He stated that the category's meaning was completely unclear to him. He agreed that it did not seem to include a displaced person in Germany, because Germany could not be called a previously occupied territory. Mr. d'Ombrain stated that he felt that the phrase was an example of the very imprecise language used by the RCMP to say something very simple: collaborators were not allowed to come in to Canada. However, as category (k) shows, this was not clearly communicated.

[156]            The critical issue is how the "meaningless" phrase in category (k) of the screening criteria was interpreted and applied in the field by the Canadian visa control officers. In this regard, the evidence of visa control officers in the post-war period is important, since the visa control officer who screened Mr. Vitols is unknown. Three visa control officers testified: Mr. Keelan, Mr. Cliffe and Mr. Kelly. Mr. Keelan's evidence on category (k) is particularly pertinent, although Mr. Cliffe and Mr. Kelly both disagreed with him.

[157]    According to Mr. Keelan (at p. 981), in his interviews with applicants, he would deliberately omit category (k), "collaborators presently residing in previously occupied territory". It was force of habit. When asked by the applicant if category (k) was a ground for refusal, he stated that displaced persons could not be residing in previously occupied territory when he was interviewing them in Germany. Mr. Keelan stated that category (k) was left to his discretion. He indicated that if he came across any of these people, which he did not, he would have dealt with them as he saw fit. He said that, at the time, a collaborator was one who assisted the Germans, or who assisted the Germans in the running of the government of a country.

[158]    Mr. Keelan's statement "if I came across any, which I didn't" seems to support the fact that Mr. Keelan was not really looking for people who fell within ground (k). He never did come across a collaborator. Indeed, based on his reading of category (k), there was no need to inquire into possible collaborationist activity on the part of applicants who were presently on German soil. The respondent submits that when Mr. Keelan stated that immigration/admission was left to his discretion, his evidence is not as farfetched as it might appear. I note the April 30, 1952, memorandum sent by Mr. Dwyer, Secretary of the Security Panel, to the Security Panel, which states in the last sentence in paragraph 10, "[p]resent immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits". Mr. Keelan was in the field in 1950 and 1951. This document supports his evidence about discretion at that time.    

[159]    The respondent submits that as long as there was even one officer out in the field who interpreted the phrase as did Mr. Keelan, then the applicant's circumstantial case is considerably weaker. The applicant states that it is clear that Mr. Keelan is not well, and that accordingly, his evidence should be given little weight. I find that his evidence on category (k) was credible. I note that he was the only one testifying who was in the field in 1950, the year in which Mr. Vitols applied to come to Canada (Mr. Keelan arrived in Germany at the end of 1950; Mr. Vitols was interviewed by Canadian authorities in Germany in February or March of 1950).    Whatever his advanced age and health might be, one would think that even if he misreads things now, he would remember if he had screened somebody out as a collaborator. Furthermore, I note that Mr. Keelan's evidence is consistent with that of Mr. Cliffe and Mr. Kelly on all other matters related to security screening at the relevant time.

[160] Mr. Cliffe testified that he applied the criteria regarding collaborators to anyone who collaborated with Canada's enemies, regardless of whether the prospective immigrant was residing in Germany or Italy at the time of the interview. While his evidence supports the Minister's position, it ignores the actual wording of category (k).

[161]       The applicant, however, submits that the meaning of ground (k) is, and always was, clear, that it refers to any country that had been occupied at any time by either side during the war. The applicant states that this is consistent with Instruction No. 1 of the Department of Mines and Resources, Immigration Branch, entitled "Procedure in Handling Alien Immigration", dated March 29, 1947, and with the Minutes of Meeting of RCMP, External Affairs and Immigration officials, entitled "Security Screening", dated October 2, 1947, in which Germany, Austria and Italy (allied occupied territory) are designated as occupied territory in the security screening context. However, there is no evidence that any visa control officer in the field ever saw either of these documents, or that they were aware of such a policy or meaning.

[162]             Mr. Kelly was quite scathing about what he thought about Mr. Keelan's evidence. He indicated that Mr. Keelan first worked as a visa control officer in Karlsruhe, Germany. Mr. Kelly was asked if Mr. Keelan, as a visa control officer working in Germany, would have been instructed to apply the rejection criteria as Mr. Kelly had described them to the Court. He replied that Mr. Keelan would have been trained in the same way as all beginning officers. However, Mr. Keelan went to Europe before Mr. Kelly. Mr. Kelly arrived in July 1951, while Mr. Keelan arrived at the end of 1950. Thus, Mr. Kelly was certainly not speaking firsthand about Mr. Keelan's experience. Mr. Kelly agreed that both ground (b), "member of SS or German Wermacht found to bear mark of SS blood group (non-Germans)" and ground (k) of the rejection criteria on the security list seemed to be, at the very least, clumsily worded.

[163]    Mr. Kelly was also proud of improving the security screening system. Indeed, in 1952, he complained to the head of the European branch of Canadian immigration, Mr. Robillard. While Mr. Kelly could not recall exactly what had prompted his complaint, he agreed that it involved people being cleared for security by immigration, not by the RCMP. Something happened that made Mr. Kelly complain to Mr. Robillard about improper security screening. Mr. Kelly went on to explain that he felt that Mr. Robillard was not satisfied with being in charge of immigration and that he wanted to be in charge of the RCMP as well, which did not make for good relations. The respondent submits that the system of security screening was not as uniform as the applicant has submitted.

[164]    Mr. Kelly's testimony confirms that prior to his arrival in Europe in 1951, there was more discretion given to the individual security officers and his evidence is important in confirming that Mr. Vitols' interview most probably took place as he testified. The screening system in Europe became more uniform one year after his arrival in Canada.

[165]    Mr. Kelly testified that a collaborator was any person who aided the German authorities in their war effort. He stated that organizations that would have been considered as collaborationist organizations included concentration camp workers, auxiliary police, those who gathered up people destined for camps, and high municipal officials that were chosen and put in place because they could carry out the wishes of the occupying power. Mr. Kelly testified that the security officers were reluctant to read something that was in favour of the subject if indeed he was a collaborator or a member of the SS. Security officers were not looking for ways in which they could give people clearance.

[166]    When cross-examined on the role of the auxiliary police, at p. 1236, Mr. Kelly was asked questions about people who had served in auxiliary police forces during the German occupation. He was asked whether he had strong feelings that collaborators should be screened out. He replied that he did. For him, rejection of collaborators was dependent on their ultimate rank; a man whose rank implied trust by the Germans to carry out their orders was acting against the interests of his country, and certainly the allied war efforts. The ranks of inspector of police, superintendent and chief were given as examples. Mr. Kelly stated that to his mind, the higher the individual's rank, the more likely he was to be regarded as an "ardent Nazi or follower of the German forces."

[167]    Mr. Kelly's definition of collaborator does not apply to Mr. Vitols who was not as high a ranking police official as inspector, superintendent or chief. Furthermore, he could not be said to have betrayed his country, since independent Latvia no longer existed.

[168]    The applicant submits that at the time of the respondent's application for admission to Canada, persons who served with the enemy in any capacity, including collaborators from previously occupied territory and members of the SS, and including the Waffen SS, were inadmissible to Canada on security grounds. Had the respondent fully disclosed his antecedents to Canadian authorities, i.e. that he had collaborated with German occupying forces by serving as an officer at different times with an auxiliary police unit, that he had been a member of a Schutzmannschaft battalion, and that he had been an officer in the Waffen SS, the applicant submits that he would have been refused admission to Canada, being ineligible both by reason of his service with the SS and on account of his service as a collaborator.

[169]    Mr. Cliffe, Mr. Kelly and Mr. Keelan gave evidence that persons who had served with the German occupying forces, including police battalions, auxiliary police or the Waffen SS were persons they sought to exclude at the time of their service. The applicant submits that, as Professors Kwiet and Ezergailis explained, these forces were a part of the German war structure in countries such as Latvia during the German occupation. It is this fact which, in the applicant's submission, provides a very real and rational reason for the belief that persons who had served with these forces had assisted the enemy simply by virtue of their membership or employment in these units.

[170]    According to Mr. Cliffe and Mr. Kelly, the guidelines contained in the November 20, 1948 list of security criteria entitled "Screening of Applicants for Admission to Canada" changed no earlier than 1951. The applicant submits that since the visa control witnesses' evidence was unequivocal that, as a result of their training, they sought in practice to exclude persons who had served with any German occupying forces, and that they understood that this was the practice of their fellow visa officers, there should be no doubt that had the respondent fully disclosed his wartime employment and activities, he would not have passed the security screening. However, as Mr. Keelan's evidence shows, the wording of paragraph (k) precluded any such uniformity in the actual practice of visa control officers in the field. No interpretation of paragraph (k) was forwarded to the field visa control officers prior to the time of Mr. Vitols' screening.   

[171]    The applicant submits that the respondent continued to lie and to carry on with what the IRO CM-1 form stated because he would otherwise have lost all credibility; the truth would have excluded him in the screening process. The applicant further submits that it stretches all credibility to believe that Mr. Vitols deliberately attempted to conceal his Waffen SS association to the UNNRA or IRO but that he disclosed this information to Canadian authorities for immigration purposes.

[172] The applicant states that the respondent contradicted his pleadings which say that when he said "Latvian Army" he meant "Waffen SS". The applicant states that it is the respondent's evidence, at pp. 1744, 1561-64 and 1709, that he never meant, at all, for "Latvian Army" to have any connotation that it was "Waffen SS". As stated earlier, however, the visa control officers were aware of what was meant by "Latvian Army".

[173]    The issue of screening officers' discretion was raised in Mr. d'Ombrain's cross examination. After showing Mr. d'Ombrain the memorandum from the Secretary of the Security Panel, entitled "Immigration Security Policy - Nazis, Fascists and Collaborators", dated April 30, 1952, it was suggested to him that there were no blanket prohibitions on collaborators, but that everything was decided on a case-by-case basis. He was read the last sentence, which states, "[p]resent immigration security policy prohibits the immigration of collaborators but cases have so far been dealt with on their individual merits or demerits". It was suggested to him that the immigration officers could exercise discretion.

[174]    Mr. d'Ombrain responded by stating that there are two anomalies in this discussion that took place in 1952. The first was the notion that the Latvian Army was understood to be the Waffen SS. Secondly, all the documents flowing to the decision-making apparatus at the central government up to 1952 did not merely assume that there were blanket prohibitions; they had been quite specific. After 1950, there were attempts made at a high level to alter the blanket prohibition on these categories, to replace it with a more responsive, defined and narrower prohibition. One result sought was that those who had not collaborated in a serious way would not be excluded. The term "collaborator" was not defined for application in the field until 1952. This document signed by Mr. Dwyer, which is based on information from the RCMP, came to the attention of the Security Panel in April 1952.

[175]    Mr. d'Ombrain stated that " [t]his was the first time at the senior levels of decision-making there had been any reference made to something other than a blanket prohibition on members of Nazi organizations and collaborators." In his view, this document sparked a discussion which led to a policy change.

[176]    Mr. d'Ombrain went on to state that there was a detailed description of what collaboration would be taken to mean in the future; it involved the concept of moral turpitude. At p. 701, Mr. d'Ombrain stated that it was this document of April 30, 1952 that was "used to bring about the discussion which led to the issuing of a new policy by the Security Panel, which in turn, was issued by the immigration and the RCMP authorities and sent out to the field." He was asked if these events suggested to him an inconsistent execution of the policies set at the high level. He replied that "there may have been changes made in the [Canadian] policy, but if there were these changes were not brought forward and approved."

[177]       In 1952, when Canada began to define 'collaboration,' there emerged the notion that it involved an element of crime or moral turpitude. Mr. d'Ombrain's report states:

With respect to collaborators, the memorandum asked for greater flexibility. The Security Panel was asked to consider narrowing the prohibition on collaborators to the following:

a)         Those convicted of fighting against or engaging in activities harmful to the safety and well-being of the Allied forces;

b)             those convicted of implication in the taking of life, or engaging in activities connected with forced labour and concentration camps;

c)              Those who were employed by German police or security organizations and who acted as informers against loyal citizens and resistance groups;

d)             Those charged and found guilty of treason.

In the respondent's submission, all grounds involve the concept of crime. This is true of the first two grounds, (a) and (b). The concept of betrayal is evident in ground (c)and particularly (d), as it includes a reference to treason.

[178]    The d'Ombrain Report further states (at p. 41) that the Security Panel considered the foregoing and agreed to exclude

g) Former collaborators who should be excluded on grounds of moral turpitude, except minor collaborators whose actions resulted from coercion.

What becomes progressively clear, then, is that the Canadian definition of "collaborator", which began to emerge in 1952, was consistent with the dictionary definitions in that it included an element of betrayal, moral turpitude, criminal conviction, or treason.

[179]    The expert historians discussed "collaboration" in Latvia. For Professor Ezergailis, collaboration involves a concept of moral turpitude, and in particular, involvement in implementation of the Holocaust. His affidavit locates this element (at para. 24) in "the organizing of local people into special killing squads under German control." In testifying, he discussed quislings and seemed to have a concept similar to Mr. Kelly of a high ranking official. By contrast, Professor Kwiet tended to define collaborator very broadly so that all those who were subordinate to the Germans, no matter how low down the chain, were collaborators. He even considered the reserve forces of farmers, called in to protect the local community, to be collaborators.

[180]    Mr. Vitols was seen by an immigration officer named Gertson and by a doctor whose name appears to be MacDougall. We have the evidence of an immigration officer, Mr. Barron, that he recognized the signature of Mr. Forbes as the port of entry officer at Halifax who admitted Mr. Vitols. Yet nobody has identified the visa control officer who worked with Mr. Gertson.

[181]    Having regard to all of the foregoing evidence, since I do not know who the visa screening officer was for Mr. Vitols, if there were multiple understandings as to what "collaborator" meant, and if there was someone like Mr. Keelan, who interpreted his powers to be discretionary, then the applicant has not proven that there was a uniformly applied understanding of the concept of collaborator. Where the applicant's evidence is only circumstantial, its case relies on the uniformity of the system. In my view, there are too many inferences which have to be drawn on insufficient evidence before I can find, based on the circumstantial evidence, that Mr. Vitols, contrary to his evidence, was asked about police service on the issue of whether he was a collaborator. Furthermore, before the conclusion can be drawn that the officer screening Mr. Vitols would have screened him out as a collaborator, it remains to be determined whether the officer — assuming he even applied category (k) on German soil — would have regarded a lower rank police officer as a collaborator.

[182]             When the definition of collaborator finally came, the concept included some element of moral turpitude; in other words, a person had to have done something that would be considered wrong. Then there was the notion of "minor collaborators whose actions resulted from coercion". It is certainly possible that, had Mr. Vitols applied for entry in 1952, he would have been exempted pursuant to the definition of collaborator as listed under ground (g) at p. 41 of the d'Ombrain Report. A number of factors point to the possibility that a similar decision would have been made with regard to Mr. Vitols in 1950: efforts as early as 1948 by Baltic peoples to gain special consideration in light of their circumstances under German occupation. This was evidenced in the April 30, 1952 Security Panel document in which P.M. Dwyer identified "the present policy" as allowing "Non-German members of the Waffen S.S., who joined after 1st January, 1943....to satisfy the Security Officer that they were drafted and did not enlist voluntarily"; the discretion vested in officers like Mr. Keelan, as reflected in Dwyer's report that notwithstanding the blanket prohibition of collaborators, "cases have so far been dealt with on their individual merits or demerits"; and the Cold War climate which prioritized the exclusion of communists over other concerns, and generated sympathy for Baltic peoples, who had been and were subject to Soviet control.

Screening of Displaced Persons - Witness Testimony

[183]    On the question of Mr. Vitols' security screening by Canadian authorities in Germany, it is useful to review the testimony of character witnesses, Latvian nationals who underwent the application and interview process for immigration to Canada after World War II. As was noted earlier, Mr. Vitols testified that he was only interviewed by one officer who he took to be a Canadian immigration officer. Mr. Vitols and many of the other Latvian witnesses used the word "consul" to describe the immigration officers. According to Mr. St. Vincent, an immigration officer, the immigrants would use the word "consul" to describe the immigration officers and they would be told by the officers that they were not consuls.

[184]    Mr. St. Vincent stated that the security screening officers took varying periods of time to see their interviewees. He also stated that he did not have to wait a long time for the security officer to finish. He said that he thought that he never waited more than fifteen or twenty minutes. He suggested that the usual interview was between five and 10 minutes. This is consistent with the one interview that Mr. Vitols gave evidence about, being seven minutes. It is within the range of what Mr. St. Vincent experienced.

[185]    Mr. St. Vincent went on to say that the people were always screened. The file was always marked by a security officer as having passed stage B. However, Mr. Gunn, also an immigration officer, stated that the displaced persons camps and full service offices would have the full screening by the team, but other offices which were not full service offices, such as Liverpool, which at least two of the Latvian witnesses came through, did not have a visa control or a security officer.

[186]    A lot depended on whether it was a full service office or not; if it wasn't, then the immigration officer could take on the security screening role. In doubtful cases, he would refer the case to the RCMP Central Security Service for Europe. The evidence of Mr. Grigors and Mr. Zalamans, character witnesses, who did come through Liverpool and remembered only one interview, would then be consistent with Mr. Gunn. Mr. Ozols, another character witness who came through London, remembered two people interviewing him.    Mr. Gunn did describe London as a full service office. He also said that Paris was a full service office. However, Mr. Plume, a former member of the French Foreign Legion, who had actually fought in Indo-China and had quite a dramatic life story, was clear that there was just one officer in Paris. Mr. Plume recalled this very well because they had spent so much time together; the Paris officer was interested in Mr. Plume's fascinating life story of being captured.

[187]    The more relevant witnesses are the ones who came to Canada from the displaced persons camps because the people who came through places like Liverpool were not screened by two officers, security and visa; they were screened just by an immigration officer. We have the evidence of several Latvians who came through the camps.

[188]    Robert Pavlovs was in Butzbach, which was the camp where Mr. Vitols was at a somewhat later date. Mr. Pavlovs was an early immigrant and came in 1948. He was seen by an IRO doctor in the camp, a Canadian doctor, and then the Canadian consul. His wife, Velta Pavlovs, another character witness, who only met him in Canada (she was not his wife during screening), also came the same year, 1948.    She would tend to support the applicant's position. She said she thought she saw a doctor. She was also interviewed by a person for immigration to Canada. She does not remember much about the interview. She said that she thought that she saw more than one person.

[189]    Mrs. Udris, a character witness, came to Canada in 1948 at the age of 24 or thereabouts. When she was asked what she remembered about the process of being accepted by the Canadian immigration authorities in Germany, she said that she was asked when and where she was born and other general questions. Not much else was asked of her. A translator was present. She remembers seeing only one Canadian officer. She recalls the interview very well because she was asked if she knew how to bake an apple pie and that stuck with her. She was only a teenager during the war and would not have been asked the same questions asked of an adult male.

[190]    Mrs. Milda Vitols, a character witness, referred to a very friendly consul. An Estonian woman acted as an interpreter. Mrs. Vitols had been advised that to immigrate as a domestic worker, one's children had to be at least eight years old, which her child was not. The consul was very welcoming; he liked her child. He gave the child some Canadian money, bent the rules and wished Mrs. Vitols success and a good life in Canada. Mrs. Vitols' memory on the subject was very clear because of her anxiety that her daughter did not meet the rules.

[191]    Mr. Pludons, another character witness, was the international president of Daugavas Vanagi, an organization which, among other aims, worked for Latvian independence. He was going into one of the bulk labour programs. After relating his recollections of being interviewed in connection with the potash mines in Saskatchewan, he stated that he very vaguely remembered the interview with the Canadian immigration authorities. He was asked to read out loud from a Latvian book. He thought that was very strange as he doubted that the interviewer spoke Latvian. To the best of his knowledge, Mr. Pludons only remembers being interviewed by one Canadian official.

[192]    The veterinarian, Mr. Vanags, a character witness, is the sole witness who does testify to being asked about 10 years of activities. He was interviewed in a German displaced persons camp in 1949. It was in 1948 or 1949 that he applied, and he came in February 1949 from a camp. He testified that he was asked his date and place of birth and what he had done from year to year. He said that he filled out a questionnaire and was interviewed by an immigration officer. He knew that Mr. Vitols had been in the army and that he had fought against the Russian partisans. He also knew that Mr. Vitols had worked as a police officer or a Schutzmann.

[193]    In his report, Mr. d'Ombrain quotes Norman Robertson, the Secretary to the Security Panel, setting out that the purpose of security screening was to ensure that people be able to adapt to the Canadian way of life. Just as Dr. Vanags made a good impression (and he saw that the officer had put "leaves good impression" on his form), I infer that Mr. Vitols would have as well. Mr. Vitols has adapted to the Canadian way of life.

Port of Entry

[194]    The applicant submits that the port of entry would have been another stage where the respondent was deceptive and concealed material facts. I shall now review the evidence relevant to general port of entry procedures, questions asked and documents used, as well as the particular evidence regarding Mr. Vitols.

[195]    Mr. Gunn stated that, as an immigration port of entry officer in 1946, he understood that the process for displaced persons overseas was designed to insure that persons were of good character, not security risks and suitable for establishment in Canada. Mr. Gunn's duty, as he understood it, included examining the visa granted overseas and determining that the individual before him was the person who owned the documents. He asked standard questions relating to the information found on the IRO travel document, which was separate from the CM-1, in order to confirm the stamps indicating medical examination and the issuance of a visa.

[196]    Mr. Gunn confirmed that from 1947 to 1950, the immigration form for non-sponsored immigrants always had a section for a 10-year personal history of residence and employment. Mr. St. Vincent bolstered this evidence when stating that he would turn the form over and place the 10-year history on the back for whatever portion had not been previously placed in the slot.

[197]    Mr. Barron similarly testified that as a port of entry officer in Halifax starting in July of 1950, a few weeks after the respondent came to Canada, he examined displaced persons arriving by ship. He examined them using the ship's manifest or CGR form. Mr. Barron said that he questioned people based on the travel document, the CGR and the visa information.

[198]    As in the evidence of Mr. Gunn, Mr. Barron stated that he relied on the security screening overseas regarding wartime activities and did not ask questions regarding this subject unless there was a reason to be suspicious.

[199]    As has been noted, the evidence discloses the identity of the immigration officer, Mr. Gertson, and the physician, Dr. MacDougall, who respectively interviewed and examined Mr. Vitols in Europe. However, the identity of the RCMP Officer, otherwise known as the security screening officer or visa control officer, remains unknown. We have no evidence that Mr. Gertson (Immigration) or Dr. MacDougall worked in a team in Europe. It is just an inference that they were part of a team. There is certainly no evidence that they worked with a visa control officer.

[200]    The respondent was accepted into the bulk labour program as a sugar beet worker in 1950. There are corrections on the typed part of Mr. Vitols' CGR form. Evidence indicates that these would have been done by a purser, or other officer on the ship. As mentioned above, one of the corrections is that "D" for divorced was changed to "M" for married. Also changed was the employment, from "worker" to "farm worker". At column 21 the form directs the applicant to "give name, relationship and address of your nearest relative in the country from which you came. If a wife or children are to follow you later to Canada, give names and ages". A response of "none" was typed in for the questions as to wife, children and brother. As mentioned above, these answers were corrected by the purser or ship's officer in ink; for the wife, it then says "Ruta"; for Robert Vitols' entry below that it has "sister-in-law", and then added "as above". Also in ink is "Latvia".

[201]    As was noted above, the name of the port of entry officer in Halifax was a Mr. Forbes. Mr. Barron, at pp. 1083 to 1084, indicated that Mr. Forbes was very competent. According to Mr. Barron, Mr. Forbes, upon examination of the CGR form, made a deliberate change from single to married in the marital status section on the form. Presumably, he would have done so only if Mr. Vitols had disclosed his marital status. The evidence has been that as part of this bulk labour program, an applicant immigrant was supposed to be a single man. Nevertheless, Mr. Forbes, presumably aware of whatever the government policies were, bent the rules at the port of entry, just as the rules were bent for the woman who later became the second Mrs. Vitols and her five-year-old daughter. It is clear that Mr. Forbes admitted Mr. Vitols into Canada, even though the latter was clearly married. Mr. Vitols, then, had made full disclosure of his marital status before he was landed in Canada.

[202]    Mr. Thomas gave evidence that what the IRO accomplished after the war was one of the great humanitarian accomplishments of the century, and that Canada played a very honourable part in that effort. In 1947, following McKenzie King's famous speech in the House of Commons, Canada's immigration policy radically shifted, from a narrow and restrictive one to a more open and broader one.

[203]    Mr. Thomas also added some interesting comments in a more general way. He referred to people who were so frightened that his officers had to strive to elicit the correct story; there were people who were eligible, but might have been lying just because they did not know that they were eligible. Mr. Keelan, for example, related a story of a man chopping all the wood in the camp in order to make his hands look like those of a labourer, because he knew that Canada was looking for labourers, not professionals. There was a general understanding at that time that people were lying, even when they did not need to. I note that this was at a time when people were emerging from the Second World War and from the chaos in Europe; they were struggling to survive. Indeed, Mr. Vitols testified, in relation to the screening at Fulda, that he had to lie then in order to survive. However, in my view, this does not permit me to ignore any material lie to the Canadian immigration authorities or in any application for citizenship.

[204]    Mr. Zalamans, a character witness, offered evidence which demonstrated the problems with the system at that time. He and his wife came to Canada from England with Latvian passports. Both the Latvian passports and the landing card are stamped "returning Canadian", notwithstanding that they were immigrants at that time. Mr. Zalamans received his citizenship at a subsequent date.

[205]    Following his interview, Mr. Vitols obtained a visa to immigrate to Canada. He departed Bremerhaven, Germany on May 19, 1950 by ship and arrived in Canada on May 28, 1950 at Halifax. He entered Canada as a displaced person whose passage was paid by the IRO.

[206]    Visa number L.M. 1858 was issued to Mr. Vitols at Ludwigsburg, Germany on or about March 21, 1950 and the respondent travelled under a certificate of identity issued by the IRO at Ludwigsburg on March 16, 1950. The respondent entered Canada as an Ontario sugar beet worker pursuant to a bulk labour programme authorized by Privy Council Order 2180.

[207]    The respondent and his brother both worked at a sugar beet farm in Glencoe, Ontario upon their arrival in Canada, but were laid off after a couple of months when the weeding was all completed.

Whereabouts of Mr. Vitols' First Wife at Pertinent Times

[208]    The respondent applied for Canadian citizenship on March 21, 1956 and was granted citizenship on September 28, 1956, receiving Citizenship Certificate 075620.

[209]    The respondent's 1956 application for citizenship refers to his wife, Ruta Kugenicks, whom he had married in 1940. On this application, the respondent falsely claimed that she had been taken to Siberia by the Russians 14 years before (in 1942) and falsely claimed as well that their two children had been taken to Siberia in 1942. The respondent admitted that this was false. The applicant submits that the only issue is whether this information was deliberately given falsely by the respondent. In my view, while this falsehood relates to the respondent's credibility, the issue is also whether this information was material to his eligibility in his application for citizenship.

[210]    A German payment record of family support payments issued in Prague by the SS-Race and Settlement Office, pertaining to SS-volunteer Peteris Vitols, second lieutenant, on January 8, 1945, records the respondent's two children as dependants for the period up to February 28, 1945. Other post-war documents show him as married with two children, without further explanation, and a September 1945 prisoner of war document gives an address for his wife in Kulmbach, Germany. The respondent's 1948 application for assistance from the IRO states, however, that his wife disappeared in 1944; no dependants are listed. The applicant submits that the facts alleged above support the lack of credibility of the respondent as it shows his lack of consistency regarding information which was so basic and well known to him.

[211]    In cross-examination, at pp. 1703-05, the respondent admitted that he had seen his wife on New Years Day, 1945, in Pomerania. He had received a note from his family dated February 1945 which confirmed that his wife and daughters were alive and living in Pomerania the day before the Russians took control of that territory. The respondent understood that they had been caught behind Russian lines. In his personal data sheet, dated August 22, 1945, in his form of personal particulars, dated September 15, 1945, and in PWIB form No. 2 (undated), the respondent lied to the allied authorities after he surrendered in May 1945, stating that his wife was in a camp in Kulmbach, Germany. The respondent admits that he provided the information in these documents when he was processed at the POW camp. He claims that he feared being sent behind Soviet lines to be reunited with his family, and therefore lied about their whereabouts. Indeed, as was noted, Professor Ezergailis testified that many people committed suicide upon learning that they would be repatriated to the Soviet Union. This context must be factored into any negative inference regarding Mr. Vitols' credibility on the issue of his family's whereabouts when he was a displaced person.

[212] The respondent's family had fled Latvia in 1944. He had last been able to visit them during the Christmas holidays of 1944. He had last seen his family on New Year's Day 1945. The respondent repeatedly tried to find them when he was in the displaced persons camps. And later, once in Canada, he sought the assistance of the International Red Cross.

[213]    The respondent submits that Mr. Vitols' English has never been fluent enough that he could have said "I have not heard from them or of them since 1942 when they were taken to Siberia." His stepdaughter testified to translating letters to his family for him. Mr. Vitols had no reason to lie on his 1956 citizenship application form about where his children and wife might be; whether they were in Siberia or Poland, and whether he had last seen them in 1942, at the end of 1944, or the first day of 1945, just did not matter. It may be that the date was a misunderstanding by the typist at the place where Mr. Vitols was making application; in any event, the date is not material.

[214]    The applicant conceded that the year that Mr. Vitols had last seen his family was not material in determining his eligibility for Canadian citizenship; nevertheless, she relies on misrepresentations in the area of credibility.

[215]    By 1956, the respondent's wife had been missing for well over seven years despite his best efforts to find her, and he assumed she was dead. After he became a citizen he married a widow whose first husband had been killed while fighting in the Latvian Legion in 1944. She had fled Latvia with her newborn daughter. The respondent became devoted to his new family and remains so more than 40 years later. Milda Vitols met Mr. Vitols during the period when he searched for his family in her displaced persons camp.

[216]    In 1957, the Red Cross finally found the respondent's first family in Poland and gave them his address.

[217]    His older daughter wrote him and he responded. Sadly, she drowned before she could receive his letter. His first wife wrote with the sad news. He then exchanged letters on a regular basis and sent financial support, but was unable to visit behind the Iron Curtain. Mr. Vitols could not visit his first wife, daughter and grandson behind the Iron Curtain, but he paid for them to visit him in Canada in 1977.

[218]    There were no witnesses who knew Mr. Vitols during the war. His brother, who was to testify in these proceedings, died last year.

Good Character at Time of Citizenship Application

[219]    The applicant submits that at the time of his application for citizenship, the respondent presented himself to Canadian authorities as a person of good character, notwithstanding his service in the collaborationist Latvian auxiliary police in Madona, in Schuma 281 and in the Waffen SS, and notwithstanding his failure to disclose the details of such wartime service. The application for citizenship, dated March 21, 1956, required that Mr. Vitols present himself as being of good character; a statement in the application, which he had to sign and swear to, provided that he was a fit and proper person to be granted a Certificate of Citizenship.

[220]    In response, the respondent submits that he had been lawfully admitted to Canada in 1950 and acquired Canadian domicile. The most important condition for citizenship was that he be of good character. The respondent submits that he was always of good character and has always been regarded as such by those who know him. The respondent states that he was not asked about his wartime activities when he applied for citizenship. He had disclosed his membership in the Latvian army during the war to the Canadian immigration authorities in Europe when he applied for admission into Canada.

Responsibilities as Citizen of Canada

[221]    The respondent took his responsibilities as a citizen seriously. He was a valued employee of General Motors until he reached retirement age in 1980. He performed volunteer work tirelessly. This commitment to voluntarism was recognized by the Ontario Government in 1990. A certificate to that effect was signed by the Ontario Minister of Citizenship and Ontario Minister of Culture and Communications. While the struggle for Latvian independence remained his prime concern, Mr. Vitols kept informed about Canadian affairs and supported Canadian charities.

German Pension

[222]    In 1986, the respondent learned that the German government was paying pensions to non-Germans who had fought on the German side during the war. The war crimes issue was in the news at the time, given the role of the Deschenes Commission; nevertheless, the respondent felt that he had nothing to hide. He thus applied for a pension by application dated May 30, 1986. Mr. Vitols currently receives that pension.

Good Character Witnesses

[223]    A number of character witnesses, mostly Latvian, testified as to Mr. Vitols' good character.

[224]    His present wife, Milda Vitols, stated that she thinks Mr. Vitols is a better person than she. His stepdaughter met him around the same time that her mother did; he is the only father she has ever known. She states, "I can tell you a lot about his character. I can tell you that he is a very good man. He is a charitable man. He is a sociable man. He is a civic-minded man...".

[225]    Milija Zuejuieks has known Mr. Vitols since the early 1950's. She said that Mr. Vitols volunteered to help her husband build their house. He sent parcels to Latvia for people in need.

[226]    Lieutenant Colonel Anderson has known Mr. Vitols since 1952. He knew about Mr. Vitols' military service prior to the war, but not his wartime activities. They discussed it several times because they had both been cadets. The witness stated,

[a]nd there's one thing he mentioned .... He said never give a command which you are not prepared to obey yourself or to carry out yourself. And a few weeks later when I was a first phase cadet in Borden, my sergeant -- my sergeant instructor told us young guys exactly the same thing.

Mr. Vitols was a good neighbour, and he threw a party to celebrate the commissioning of the witness as an officer. Lieutenant Colonel Anderson stated that Mr. Vitols was very forthright and that his reputation was very high. He was a leader in the community.

[227]    Mrs. Udris met Mr. Vitols in the 1950's. She respected him enough that she asked him to be the godfather to her only child. His reputation was very good within the Latvian community. Her son, Imants Udris, has known Mr. Vitols all his life. He describes him as a caring, gentle man, proud of the Latvian heritage, and a well-respected leader of the community.

[228]    Richard Grigors also met Mr. Vitols in the 1950s. He now works at the Latvian Community Centre where they have a brunch every Sunday through the winter months, and Mr. Vitols volunteers to chop vegetables. He says that Mr. Vitols is one of the most honest people he has ever met.

[229]    Mr. Pavlovs and his wife met Mr. Vitols as neighbours in 1953. Mr. Pavlovs says Mr. Vitols has always been nice and truthful. Mrs. Pavlovs says he has an excellent reputation for integrity and is their friend.

[230]    Mrs. Ligers says that she met Mr. Vitols in 1956 and that he is very kind and helpful.

[231]    Mr. Zalamans says he met Mr. Vitols in 1960 and that he is a decent, honest man.

[232]    The International President of Daugavas Vanagi, who met Mr. Vitols in the early 1970s, describes Mr. Vitols as a true Latvian, devoted to helping others.

[233]    Professor Dreifelds, who has known Mr. Vitols since he became a professor at Brock University in St. Catharines in 1974, said of Mr. Vitols,

I think one of the things that stands out for me especially is I find that, first of all, he certainly has leadership qualities. But in the sense of being low key, and is also a mediator.

I find that in Latvian society, as in any small group of people, you will find there have been polarizations over particular issues, and Peter has always been the one who's trying to reconcile, sort of the differing, opposed factions. And that, I think, is one of his prime characteristics. He is very laid back and friendly.

And that's another thing I would say; I have never seen him angry, you know, he's always smooth, low key and trying to reconcile people so that, you know, I find that admirable because I sometimes have a temper myself. So, if I see this in other people I find that quite admirable.

[234]       Professor Dreifelds testified as to the respondent's reputation in the Latvian community, stating,

I mean, I think the fact that he was re-elected, and even now when he moved to Toronto, the St. Catharines Latvian society wanted him to keep the books and provide leadership in certain areas. So, you know, he's held in high regard, you know, because he is such a mediator, because I think there's a lot of trust in Peter Vitols.

[235]    In the late 1970s, Mr. Ozols, the Canadian President of Daugavas Vanagi met Mr. Vitols. He described Mr. Vitols as first class, and noted how he kept the books so well.

[236]    Dr. Kristbergs, a Minister to a Latvian congregation in Toronto, met Mr. Vitols in 1984. Dr. Kristbergs indicated that Mr. Vitols is very trustworthy and straightforward.

[237]    Mr. Vitols met Vija Cushing in 1986. Her son met Mr. Vitols' step grandson in junior kindergarten; Mr. Vitols became a part-time baby sitter for her son and became a grandfather figure to him. She holds Mr. Vitols in high regard.

[238]    Nan Brogden has known him for 25 years. She describes him as a very dedicated family man, as a congenial host and a very friendly and warm person. She did not meet him through the Latvian society.

[239]    All of the respondent's character witnesses were unaware that Mr. Vitols had lied in the displaced persons camp about his involvement in the three Latvian police and military organizations named by the government in the Notice of Reference. Several were unaware of his participation in World War II. Mr. Vitols' late brother Robert knew him during the war, but he passed away shortly before the hearing.

[240]    I also note that the two RCMP officers who attended Mr. Vitols' home in 1994, Deneault and Robineau, stated that Mr. Vitols was very polite throughout and cooperative.

Soviet Publications on Daugavas Vanagi

[241]    The Soviet Union, upset with the successful lobbying of Daugavas Vanagi and similar Baltic organizations in Canada and the United States, sought to discredit both the organizations and their leaders. Mr. Vitols, as an executive member of Daugavas Vanagi in Canada, thus became a target. Mr. Vitols testified that in 1962 he received by mail from Latvia a book by Paulis Ducmanis, entitled Kas Ir Daugavas Vanagi? This was admitted as fact by the applicant. The English language version, Who Are They? (Riga: Latvian Publishing House, 1963) appeared a year later. The book accused Mr. Vitols and other members of Daugavas Vanagi of war crimes.

[242]    The applicant does not admit that the book was part of a Soviet misinformation scheme. In my view, this book was part of a Soviet KGB misinformation campaign. As Professor Ezergailis noted, it was common for the KGB to spy on anti-communist emigre groups and attempt to discredit them. Professor Kwiet acknowledged that Professor Ezergailis had made "some very good points" on this subject. Although copies of the book were sent to the media, the Canadian media ignored it.

[243]    A second book, From SS and SD to... (Riga, 1979), by M. Birznieks, was published, containing similar allegations. It was sent to the respondent in 1979.

[244]    Mr. Vitols was still not deterred from his anti-Soviet work despite these efforts.

RCMP Interviews

[245]    I shall now review the RCMP interviews which led to Mr. Vitols' signed statement dated 12 December 1994. The respondent submits that these interviews were procedurally unfair, and hence the signed statement should be accorded only minimal weight. It should be noted, however, that the statement does not alter my findings in any material way.

[246] Two RCMP officers attended Mr. Vitols' home in Toronto on December 12, 1994, with a Latvian interpreter, for the purpose of questioning Mr. Vitols. Mr. Vitols was present with his wife. Mr. Vitols declined the suggestion that voice recording equipment be used, but he was not informed that the recording might be of benefit to him. The interpreter was there to assist Mr. Vitols should he have wished any of the questions or any of his answers translated. Many questions were answered in English. Corporal Robineau asked the questions and Constable Deneault took detailed notes. At the end of the interview, the allegations against Mr. Vitols were read to him by Corporal Robineau. Mrs. Vitols then served the group cookies.

[247]    Subsequently, a statement was prepared and Corporal Deneault took the statement to Mr. Vitols' house on January 26, 1995. Corrections were made on the Latvian statement at that time. Mr. Vitols' stepdaughter was present and she was able to assist because she could speak and read Latvian. Again, Mr. Vitols was very cooperative. The statement was signed by Mr. Vitols, Corporal Deneault, Mr. Vitols' stepdaughter and the translator. At the second interview, Mr. Vitols provided the RCMP with a number of documents. One of those documents was a French application for assistance dated April 8, 1948; this was the Fulda IRO CM-1 form, stating that from 1941 to 1944, Mr. Vitols worked as a railway worker. Mr. Vitols said he did not know why he stated he worked on the railway. His father had been a railway worker and he "wasn't afraid to tell them what [he]had been doing during the war". Mr. Vitols admitted that he had been wrong and that he had worked with the Madona police at that time.

[248]    Mr. Vitols was not told that this was a criminal investigation, although the investigation had begun as such. Corporal Robineau believed that by the time the interview was carried out, it was no longer a criminal investigation. Since it was a civil investigation Mr. Vitols was not advised of his right to counsel. Corporal Robineau acknowledged that any admissions by Mr. Vitols would have been inadmissible in a criminal case.

[249]    Corporal Robineau could not remember asking Mr. Vitols about his application for assistance from the IRO in April 1948, in which there was a section listing his employment for the last ten years. At the top of this chart, which is filled in for the years 1937 to the [then] present, there appears "Career Officer, Lieutenant". The officers confirmed that Mr. Vitols indicated that notwithstanding the Madona District Police training plan for the month of February, dated February 2, 1948, in which Mr. Vitols is listed as a training instructor, he was never an officer who trained people; he maintained that he only handled office administration during this period. The officers found no incriminating evidence with regard to Mr. Vitols' participation in atrocities. Furthermore, all the documents which Corporal Robineau had with respect to Mr. Vitols contained Mr. Vitols' proper date of birth, name and nationality.

[250]    The applicant cites Mr. Vitols' handwritten statement produced during the RCMP interview, dated December 12, 1994, in which Mr. Vitols stated that everyone knew that killings were going on, but that he was never asked to participate and never did participate.

[251]    The applicant also states that Mr. Vitols, in this statement, acknowledged the following: he had been an officer in the Latvian army prior to the Russian invasion; following the German invasion, he became a member of the Madona police; he participated in operation Winterzauber; he was a lieutenant in 1943 in the 281st battalion; he was later recalled to Madona; he was a lieutenant in Group "C"; his unit was operating in the Lake Lubana district in 1944; the service decoration he received in April 1944 was related to events occurring in the Lake Lubana area; he was a member of the Latvian Legion and considered a member of the SS; he had not worked as a railway worker from 1941 to 1944 as indicated on his application for IRO assistance; the executions conducted in the Madona district in 1941 were well-known and he was not involved and was never asked to participate; and he had surrendered in May 1945 and was a prisoner until his release in March 1946.

[252]       It should be noted, however, that Mr. Vitols' RCMP statement contains no specific reference to executions conducted in the Madona district in 1941; rather, as was noted, upon hearing the charges against him, Mr. Vitols commented, "[e]verybody knew about the killings. I was never asked to participate and have never taken part in any killings."   

[253]            The applicant submits that the respondent also acknowledged that when he applied to immigrate to Canada in 1950 as a sugar beet worker, he told Canadian officials that he had been in the Latvian army (as opposed to the Latvian auxiliary police, Schuma 281, the Waffen SS or even the German Army). He provided the RCMP officers copies of wartime Latvian identification documents. It should be noted with regard to this submission, that Mr. Vitols, in his statement administered by the RCMP, acknowledged that he had informed Canadian officials of his service in the Latvian Army; however, in this statement, he did not comment on the significance of using this terminology, as opposed to "Latvian auxiliary police", "Schuma 281," "Waffen SS," or "German Army."

[254]             This statement was prepared by the RCMP officers after the initial visit and was reviewed by the respondent in the presence of his counsel and signed by the respondent after review.

[255]    Mr. Vitols stated that in December 1994, he was shocked when the RCMP showed up at his door. He cooperated with them but was confused about some of the details after so many years. The evidence of both the police officers is that one of the officers read out what he called the charges during the interview with the respondent in December 1994. There were six allegations. Applicant's Admission 105, which the respondent accepts, is that one of the RCMP officers read out what he called the allegations during the interview with the respondent in December 1994, and that there were six allegations which he read out.

[256]    In my view, all six allegations were derived from the KGB book, although the applicant does not agree that this was the source. Mr. Vitols denied the allegations. He disclosed his alibi of not joining the police until September 1941 in response to the major August 1941 allegation. He stated that the Smecere accusation was known to him from the KGB book, and that "here we all regard these books as communist propaganda." The RCMP returned the next month and the respondent corrected some of the mistakes in his statement which had been reduced to writing. There is further evidence from Mr. Vitols on that and the disclosing of the alibi (at pp. 1781-83, 1796-99). There is evidence from Ive Viksne, the stepdaughter, about the interview on the second occasion. There is also evidence from Mrs. Vitols.

[257]    Contrary to the Lake Lubana accusation, Applicant's admission number 27 stated that the 281st Police Battalion was never sent to the area of Lake Lubana.

[258]    The respondent submitted that the way that the RCMP chose to deal with the matter was that they saved the six allegations, about which they were there to question him, for the very last document that they presented to him. They started with two documents which they knew implicated him in lies - the first one being his marriage certificate which stated in 1956 that he was a bachelor as opposed to widower or divorced. The second document they presented him with was the French CM-1, dated April 8, 1948, which also contained known lies. The police strategy, according to the respondent, was to knock him off balance and get him confused and then present him with the six major allegations. Corporal Robineau conceded that after two trips to Latvia - comprising a total of about one and a half months -in which he interviewed witnesses, and was accompanied by a lawyer, he had to admit in court that there was no evidence of individual complicity or criminality on the part of Peter Vitols.

[259]    The RCMP officers showed Mr. Vitols the marriage certificate which indicated 'bachelor'. Even though they say his English comprehension was fine and that they did not need the translator all the time, Corporal Robineau admitted that Mr. Vitols had been confused about the document, thinking it was an immigration form on which he had lied about being a bachelor in order to gain admission into Canada. The respondent submits that the officers never tried to correct this misapprehension. Under cross-examination, Corporal Robineau testified that he had tried to do so, although he stated that this attempted correction was not translated for Mr. Vitols. Clearly there was confusion, whether it came from age, fear or an inability to comprehend English. The respondent submits that that was quite deliberate. I do not agree that it was deliberate on the part of the officers.

[260]    The second document they showed him is actually related to the events in question, or at least to the period in which those events occurred. This is the French language IRO application for assistance. At p. 3 of Mr. Vitols' signed RCMP statement, he erroneously identifies this document as having been filled out in French at the Belgian camp. It is clear that this misapprehension did not implicate the RCMP this time; they knew the document did not come from a Belgian camp, because they had studied it.

[261]    The officers, contrary to normal police practice, did not record their questions. They did, however, record parts of the answers. Nonetheless, as was stated by Fred Kaufman in his book The Admissibility of Confessions, 2d ed. (Toronto: Carswell, 1974), at 88, "[i]t is important to keep a complete record of all questions and answers, and to avoid the tendency to reduce to writing only that part of a statement which is clearly inculpatory." Unfortunately, this was not followed by the RCMP officers.

[262]    It had been explained by a Department of Justice lawyer to the officers that if the person had incriminated himself, then they would have read him his right to counsel. Since Mr. Vitols did not incriminate himself, there was no need to do so. The officers did offer to tape record the interview. It was just unfortunate that Mr. Vitols did not realize that that would have been the best record of what actually went on in this conversation which produced the statement.

[263]    Mr. Vitols did receive legal advice afterwards, and this was when he signed the statement and made corrections, but by this time, the damage was done. According to the respondent, the police had tricked him, taking advantage of an old man who did not know better. As Mr. Vitols also testified, his memory is a lot clearer now then it was then, for the simple reason that he has had all this time to prepare for this case and has, of course, been thinking back, and is not confused and off balance with the very frightening prospect of police suddenly coming to his home about allegations that had been out for well over 30 years at that time. In my view, this interview was considerably lacking in procedural safeguards. However, although I give the statement little weight, in any event, the statement does not add in any material way to the evidence before me.

Summary of Allegations: Procedural History

[264]    The applicant submitted that by concealing his past during the immigration process, the respondent denied Canadian authorities the information necessary to make a valid and lawful determination as to whether to issue the respondent an immigrant visa and grant him permission to land in Canada.

[265]    In December 1995, the respondent was served with a notice, dated December 28, 1995, seeking to revoke his citizenship. The second last page is similar to the notice before this Court, except for two crucial changes. The most serious allegation was that he had failed to disclose his participation in atrocities against the civilian population. By letters dated January 24, 1996, December 17, 1996 and January 21, 1997, written on the respondent's behalf, it was explained that the allegation was based on KGB misinformation and arguments were made as to why it could not be true. In December 1996, a new notice was served which dropped the allegation of personal complicity in atrocities. That is the notice that is before the Court. The phrase "high ranking official" was dropped from the notice that is before the Court.    Also eliminated was "and your participation in atrocities against the civilian population". The applicant is now just proceeding on Mr. Vitols' membership in criminal organizations.

Analysis

[266] The law with respect to the revocation of citizenship in this matter is governed by the provisions of the Citizenship Act in force at the time these proceedings commenced, i.e., February 25, 1997. I have reviewed the relevant statutory sections and case law in respect thereof as set out in Canada (Minister of Citizenship and Immigration) v. Bogutin (1997), 136 F.T.R. 40, (1997) 41 Imm.L.R. (2d) 147 ("Bogutin"). I adopt the legal framework set out in that decision.

[267]    The standard of proof in the revocation of citizenship cases is the civil standard, i.e. on the balance of probabilities. I must decide whether Mr. Vitols was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and whether because of that admission he subsequently obtained citizenship. As I stated in Bogutin, supra, due to the seriousness of the allegations in cases involving complicity in crimes against humanity, the evidence must be scrutinized with considerable care.

[268]    There is a critical distinction between this case and Bogutin with regard to the applicant's case. In the case at bar, the Minister is not seeking to show any participation by Mr. Vitols in atrocities against the civilian population. The Minister's case is based on Mr. Vitols' membership in criminal organizations. Notwithstanding this concession, counsel for the Minister from time to time sought me to infer otherwise.

[269]    I make the following findings after reviewing the evidence material to this determination. In considering the evidence, I have taken into account that the witnesses were generally of an advanced age and were testifying about events that took place forty, fifty or more years ago.

[270]    I have found the evidence of Mr. Vitols to be generally credible. I have reviewed the material part of his evidence which I found not to be credible. In assessing Mr. Vitols' credibility, I note the number of character witnesses, primarily Latvians, who testified as to his honesty during his time in Canada.

[271]    I find that Mr. Vitols was a clerk in the Madona Auxiliary Police, having volunteered for a six month period in September 1941. He entered into another six month contract in 1942 and became a police price inspector. In the fall of 1942, I find that he was in charge of the Auxiliary Police Reserve group known as group C, established by the German Order Police in the Madona District. In my view, under the circumstances, however, he was not a volunteer by September 1, 1942.

[272]    In early 1943, he became a member of the 281st Schutzmannschaften (Latvian Auxiliary Police Battalion) and then became a member of 277th Police Battalion in April 1943.

[273]    In the fall of 1944, he became a member of the Latvian Legion or Waffen SS. On May 2, 1945, Mr. Vitols surrendered to the British and was a prisoner of war until March 27, 1946. He then spent most of the following four years in displaced persons camps.

[274]    I find that Canada had a standard immigration process that was followed in displaced persons camps in Europe at the relevant of time when Mr. Vitols applied to the IRO for resettlement in Canada. This process involved the completion of a Canadian immigration application form, a security check by a visa control officer who was from the RCMP, a medical examination and interviews by the visa control officer and an Immigration officer. The primary focus of this immigration process, and in particular the security screening, was to ascertain whether the displaced person came within one of the excluded categories of persons, e.g., "collaborators presently residing in a previously occupied territory". Persons in these categories were not allowed into Canada.

[275]    I find that Mr. Vitols would have gone through this process. He may not have been interviewed by a visa control officer, though his recollection of being questioned about the SS blood group tattoo suggests that he was. If he was, I find it unusual that the evidence discloses the names of the immigration officer and the medical officer who dealt with Mr. Vitols but fails to indicate the identity of the visa control officer.

[276]    The applicant's case is premised on the assumption that disclosure of membership in the Latvian Army or Waffen SS would have resulted in Mr. Vitols' exclusion from entry into Canada; in other words, since the system uniformly excluded people with Mr. Vitols' wartime background, his admission into Canada was derived by false representation or fraud or by knowingly concealing material circumstances. A number of factors prevent me from reaching this conclusion. Membership in the Latvian Army was understood by all visa control officers to mean membership in the Waffen SS. Mr. Keelan, and possibly other RCMP or visa control officers in the field at the relevant time, interpreted category (k) of the security screening criteria as exempting from the screening process potential collaborators residing in Germany at the time of their interview. As the applicant has acknowledged at number 74 of her response to the respondent's notice to admit facts, "the immigration form in use at the time the respondent was interviewed by Canadian immigration had no questions about wartime activities." Given the absence of a uniform procedure with regard to screening out collaborators, it is therefore plausible that a disclosure on Mr. Vitols' part of membership in the Latvian Army would not have triggered his exclusion from Canada.

[277]    More generally, there is evidence to suggest that with the advent of the Cold War, RCMP officials were more concerned with apprehending communists than individuals thought to have collaborated with the enemy during the war. By the time Mr. Vitols applied for entry into Canada, the Soviet Union, not Germany, was Canada's enemy, and Mr. Vitols, as a Latvian nationalist, had fought with the Germans against Latvia's former Soviet occupiers. There would likely have been sympathy for a Latvian nationalist who had fought the Soviet occupiers of his country and now feared 'repatriation.' Against this backdrop, the disclosure of membership in the Latvian Army or Waffen SS cannot be said to have necessitated an individual's exclusion from Canada.

[278]    There is also evidence that Canada's immigration policy liberalized dramatically in 1947, prompted by the need for more workers. The applicant admits that Estonians and Latvians were regarded as likely to be successfully assimilated into Canadian society.

[279]    These factors are reflected in Canadian security documents of the time. Specifically, as has been noted, a memorandum of April 30, 1952, sent by Mr. Dwyer, Secretary of the Security Panel, to the Security Panel, stated in the last sentence in paragraph 10, "[p]resent immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits". It also described "[p]resent policy with regard to former members of the Waffen SS as providing that "Non-German members...who joined after 1st January, 1943, [would] be required to satisfy the Security Officer that they were drafted and did not enlist voluntarily." Thus, prior to 1952, when the term "collaborator" was formally defined and narrowed by the RCMP, individual officers were exercising their discretion to consider the individual circumstances of Non-German Waffen SS officers. It is plausible that Canadian security screening authorities may have taken the view that Mr. Vitols had no alternative to joining the Waffen SS in light of the conscription decree of November 17, 1943.

[280]    Based on all of the foregoing, it cannot be concluded that there was, practically speaking, a uniform system in place such that disclosure of membership in the Latvian Army or Waffen SS would have resulted in an individual's exclusion from entry into Canada. Therefore, it cannot be inferred from the fact of Mr. Vitols' entry into Canada that he engaged in false representation or fraud or knowingly concealing material circumstances.

[281] In addition to this essential failure of the applicant to discharge its burden of proof, I found Mr. Vitols credible when he testified that he disclosed his membership in the Latvian Army to Canadian authorities. Although official Canadian policy precluded the entrance of such persons into Canada, the evidence indicates that, in practice, their admission into Canada was discretionary at the hands of visa control officers. The evidence would appear to indicate with regard to Mr. Vitols that such discretion was exercised positively.

[282]             Mr. Vitols at no time lied about his name and date or place of birth. This is key, as according to Mr. Cliffe and Mr. Kelly, this information enabled British intelligence and American counter-intelligence sources to conduct security checks on any individual in displaced persons camps prior to the Canadian screening interview. It is not plausible that Mr. Vitols would have routinely provided this essential information enabling intelligence sources to track his history but then would have misrepresented to Canadian authorities his membership in the Latvian Army. The only material time he denied his membership in the Waffen SS was during his interview at Fulda, while he was in a displaced persons camp.

[283]    I am not satisfied that the resultant CM-1 form which the IRO completed for Mr. Vitols, was before the visa control officer. The incorrect or misleading information on that form as to Mr. Vitols, then, could not have contributed to the decision to admit him into Canada. Even if the form was before the visa control officer, it is hard to understand how Mr. Vitols' brother, who had been removed from the displaced persons camp, could have been admitted to Canada at the same time as Mr. Vitols, since the brother's form would have disclosed he was removed from the displaced persons camp because of his membership in the Waffen SS.

[284]    Accordingly, on a balance of probabilities, I am satisfied that the Minister has not shown that Mr. Vitols lied in a material way when he entered Canada. In light of the evidence on the practice of visa screening officers at the time, there is no reason to believe that he was asked about his earlier activities as a member of the German occupier's police force during the war.

[285]    Having regard to the foregoing finding and, since I have found that the visa control officer could have exercised his discretion positively in favour of Mr. Vitols pursuant to the interpretation of a collaborator, I do not find that Mr. Vitols gained admission to Canada for permanent residence by false representation or fraud or by concealing material circumstances. Therefore, I find that he did not obtain Canadian citizenship by false representation or fraud or by concealing material circumstances contrary to the Citizenship Act.

[286]    On this reference I find that Mr. Vitols did not obtain Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

[287]    In light of my conclusion it is unnecessary to determine whether or not he was a collaborator in a sense distinct from category (k) of the security screening criteria. Accordingly, I make no finding on that issue.

[288]    The parties may speak to me as to costs, if necessary.

                                                     (Sgd.) "William P. McKeown"

                                                                         Judge

Vancouver, British Columbia

23 September 1998

[289]                                     FEDERAL COURT TRIAL DIVISION

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:T-310-97

STYLE OF CAUSE:MCI

v.

Peteris (Peter) Arvids Vitols

REASONS FOR DECISION OF MCKEOWN, J.

dated September 23, 1998

SOLICITORS:

                                                                Ms. Roslyn Levine, Q.C. andon behalf of the Applicant

Ms. Diane Dagenais

Dept. of Justice

                                                                                                                    2 First Canadian Place

                                                                                            Suite 3400, Exchange Tower, Box 36

                                                                                                                                       Toronto, ON

                                                                                                                                            M5X 1K6

Mr. Donald Powell andon behalf of the Respondent

Mr. Harold Otto                                                                                                                                             

Barristers and Solicitors

Suite 1509

                                                                                                                           180 Dundas St. W.

                                                                                                                                       Toronto, ON

M5G 1Z8

SOLICITORS OF RECORD:

                                                                                                                      Mr. Morris Rosenberg                        on behalf of the Applicant

Deputy Attorney General

                                                                                                                                          of Canada

                                                                     Mr. Donald Powell andon behalf of the Respondent

Mr. Harold Otto