Canada (Minister of Citizenship and Immigration) v. Fast, 2003 FC 1139

Date: 20031003

Docket: T-453-00

Citation: 2003 FC 1139

OTTAWA, ONTARIO, THIS 3^rd DAY OF OCTOBER 2003

Present:           THE HONOURABLE MR. JUSTICE DENIS PELLETIER                                   

BETWEEN:

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                          Plaintiff

                                                                                 and

                                                                       JACOB FAST

                                                                                                                                                      Defendant

                                          FINDINGS OF THE COURT AND REASONS

[1]                 On September 24, 1999, the Minister of Citizenship and Immigration wrote to Mr. Jacob Fast (Mr. Fast), a Canadian citizen since 1954, to tell him that she intended to ask the Federal Cabinet to revoke his citizenship because he had obtained it by lying about or concealing his German citizenship and his wartime association with Nazi police organizations. Mr. Fast exercised his right to ask that the matter be sent to the Federal Court of Canada for a decision as to whether he "obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances". The matter was then referred to the Federal Court of Canada by the issuance of a Statement of Claim. As a result, hearings were conducted both in Canada and in Zaporozhye, Ukraine, and evidence heard as to Mr. Fast, his wartime activities, and his citizenship. Evidence was also heard as to the procedures in place when Mr. Fast immigrated to Canada.

[2]                 Given the length of these reasons, some comment on the manner of proceeding will assist the reader. The first matter to be dealt with is a series of preliminary questions relating to the formalities of the inquiry. Who has the burden of proof, and to what standard? Are the terms of the inquiry determined by the Minister's Notice or by the Statement of Claim filed by the Minister? What is the evidentiary status of the various documents to which reference was made in the course of the inquiry?

[3]                 Once the preliminary questions are resolved, the next step is to determine if the defendant Jacob Fast is the person who appears in the historical record. The documents produced by the Minister disclose the existence of a Jakob Fast who lived in Zaporozhye, Ukraine, in the early 1940's. They also refer to a Jakob Fast who became a naturalized German citizen in 1944. The first task is to determine if either or both of those individuals is the Jacob Fast who became a Canadian citizen in 1954. If neither of those individuals is shown to be the defendant Jacob Fast, there is no need to go any further.

[4]                 If it is shown that Jacob Fast is indeed the person who lived in Zaporozhye in 1941, then the next task is to decide what Mr. Fast did during the Nazi occupation of Zaporozhye. In the same way, it is necessary to decide if Mr. Fast became a German citizen in 1944. If it is not shown that Mr. Fast did the things which he is alleged to have misrepresented or knowingly concealed, then no further inquiry is required.

[5]                 If Mr. Fast is shown to have had some connection with the Nazi forces occupying Zaporozhye, or to have become a naturalized German citizen, the next question is whether he falsely represented or knowingly concealed those matters. This requires an inquiry into the immigration and security procedures in place at the time that Mr. Fast immigrated to Canada. If no misrepresentation or material omission is shown, then it will be the end of the inquiry.

[6]                 If it is shown that Mr. Fast misrepresented or omitted to disclose his wartime activities or his German citizenship, then the issue of the government's authority to exclude someone from Canada on the basis of concerns about security must be examined.

[7]                 Having gone through the process I have just described, I have concluded that the defendant Jacob Fast lived in Zaporozhye, Ukraine from 1941 to 1943, and became a German citizen in 1944. The evidence persuades me that the defendant Jacob Fast was associated in some capacity with the political section of the indigenous auxiliary police in Zaporozhye during the Nazi occupation of that city, but I am unable to conclude that he was a policeman or the head of the political section as alleged by the Minister.

[8]                 I am satisfied that Mr. Fast was not interviewed by a security officer as part of the process by which he was accepted for immigration to Canada. I am also satisfied that Mr. Fast was interviewed by two immigration officers, each of whom asked him about his citizenship. But because Mr. Fast prima facie had dual citizenship, his assertion that he was a Russian (or Soviet) citizen was not a false representation. However, I find that Mr. Fast knowingly concealed his German citizenship by allowing an incomplete answer to stand as a complete answer as to his citizenship, knowing that his German citizenship was material to his admission to Canada.

LEGISLATIVE PROVISIONS

[9]                 The relevant provisions of the Citizenship Act, R.S.C. 1985, c. C-29, are the following:

PRELIMINARY ISSUES

Relationship of the Minister's Notice to the Statement of Claim

[10]            The Minister's Notice says:

[11]            The Statement of Claim is much more detailed and provides particulars of Mr. Fast's wartime activities as well as the details of his application for Canadian citizenship in 1953. It also contains many paragraphs setting out the history of the Nazi occupation of Eastern Europe as well as the details of the structure of various Nazi organizations, the military and civil administration of the occupied territories, and the structure of the indigenous auxiliary police. It also recites the procedures in place for the screening and processing of immigrants to Canada in the immediate post war period.

[12]            Insofar as Mr. Fast is concerned, the material allegations are the following:

                                                                           . . .

2. The Defendant, Jacob Fast, was born on June 23, 1910 in one of the Mennonite communities in the Dnepr Bend, on the Dnepr River, next to the city of Zaporozhye (known in German as "Saporoshje"), located 80 kilometers south of Dnepropetrovsk in present-day Ukraine.

3. The wartime activities of Jacob Fast mainly took place in the area around Zaporozhye. Today, a city of nearly 900,000 inhabitants, Zaporozhye was, at the time of the German occupation, a city of about 350,000 inhabitants.

4 . From October 1941 until 1944, Jacob Fast was associated with the German Security Police and SD ("German Sipo/SD"), an organization known to have carried out mass murders of hundreds of thousands of civilians in the territories occupied by Germany as a part of the Nazi program to exterminate political and racial undesirables.

5 . From 1941 until 1944, Jacob Fast was a member of, headed, or was associated with, a department of the indigenous auxiliary police unit in the city of Zaporozhye (known as "Political Police", "Political Department", or even simply "SD" by the locals). This department was involved in the enforcement of the policies of the German Sipo/SD in the area of Zaporozhye.

6 . On January 21, 1944, Jacob Fast became a German citizen.

7 . Jacob Fast arrived in Canada on July 31, 1947, accompanied by his wife and children. They were landed in Canada on the same date.

8. Jacob Fast applied for Canadian citizenship on September 15, 1953 in St. Catharines, Ontario. He became a Canadian citizen on June 28, 1954.

                                                                           . . .

22. Local ethnic Germans, although not able to become members of the German Sipo/SD, could become associated with the Sipo/SD and assist the EGs, EKs, and KdS carry out their tasks in the area.

23. From October 1941 until 1944, Jacob Fast was associated with and/or worked for the German Sipo/SD.

                                                                           . . .

32. The Political Police was responsible under the German occupation for the arrest, torture, mistreatment, imprisonment and ultimately the deportation of prisoners to concentration camps in Poland and Germany.

33. The prisoners of the Political Police were detained in inhuman conditions and submitted to sessions of torture and interrogations. An unknown number were executed.

34. The Political Police, as Auxiliary of the Sipo/SD, was responsible for the enforcement of the policies of the German Sipo/SD with respect to the persecution and execution of Jews, Communists and other perceived enemies of the Third Reich.

35. The Auxiliary Police in Zaporozhye, including the Political Police, participated in the rounding up and the execution of the Jewish population of the city of Zaporozhye.

36. Jacob Fast headed and/or was a member of and/or was associated with the Political Police in Zaporozhye in the period when the department was involved in the above mentioned activities.

37. Jacob Fast was personally responsible for the arrest and mistreatment of prisoners, some of whom were later deported to concentration camps.

                                                                           . . .

39. Jacob Fast left Zaporozhye at the beginning of October 1943. After a short stay in the city of Nikopol, south of Zaporozhye, he went to Preuflisch Stargard in the then German Reich (located in present-day Poland), where he arrived in December 1943.

40. On January 21, 1944, Jacob Fast and his family applied for German citizenship with the Einwandererzentralstelle ('EWZ') (Immigration Central Office), in Kulm, in the then German Reich (located in present-day Poland). The procedure was completed in one day and Fast and his family were granted German citizenship.

                                                                           . . .

45. Jacob Fast was screened by the I.G.C.R. and obtained its assistance. He was later issued a Form MS-l by the I.G.C.R., a document that acted as a travel document.

                                                                           . . .

66. On July 15, 1946 Henry Peter Toews of Arnaud in the province of Manitoba, the uncle of Jacob Fast's wife Natalie, applied for the admission to Canada for Jacob Fast and his family, by submitting a completed IMM-55.

67. The IMM-55 described Jacob Fast and his family as displaced Mennonites from Russia. It does not indicate that Jacob Fast and his family were German citizens. It does not indicate Jacob Fast's association with the German occupation authorities, and in particular, the German Sipo/SD.

68. Jacob Fast and his family were issued Canadian visas as displaced persons in Hanover on June 13, 1947.

69. Jacob Fast and his family travelled to Canada from Germany on the SS General Stewart and arrived at Halifax on July 31, 1947 where they were examined by an immigration officer. Jacob Fast and his family were landed in Canada on the same date.

70. The Canadian Government Return (also known as the Ship's Manifest, the document filed by the immigration officer at the port of entry) indicates that the Fast family were DP's who had been issued visas in Hannover, Germany and that they were Russians. Jacob Fast did not indicate to the immigration officer that he was a German citizen.

71. Jacob Fast knowingly concealed the fact that he was a German citizen and his voluntary association with the German occupation authorities from the I.G.C.R., the SO., the Visa officer and all other immigration officers.

72. Jacob Fast falsely represented himself to the SO., the Visa officer and all other immigration officers who screened his application as a Displaced Person of Russian citizenship who had not served or collaborated with the German occupation authorities.

73. Because of Jacob Fast's false representations and his concealment of material facts relating to his citizenship status and his activities during the war, the Canadian authorities were deprived of essential information that would have enabled them to validly determine whether or not to admit Jacob Fast into Canada or to issue him a visa.

74. Jacob Fast would not have been admitted to Canada or been issued a visa if his German citizen status, his voluntary membership in the Political Police, his association with the German Sipo/SD and his activities during the war had been known to the I.G.C.R., the S.O., the Visa officer and all other immigration officers.

75. Jacob Fast was not lawfully admitted to Canada and consequently did not acquire Canadian domicile in accordance with the Immigration Act.

76. On September 15, 1953, Jacob Fast applied for Canadian citizenship in St. Catharines, by filing a Petition for Citizenship ('Petition'). He indicated in the Petition that he was born in Tiegenhagen, Ukraine, Russia. He stated that his citizenship at birth was Russian and that he was stateless at the time of filing the Petition.

77. At the time Jacob Fast applied for citizenship, good character and acquisition of Canadian domicile were both conditions precedent to being granted Canadian citizenship.

78. Jacob Fast presented himself to Canadian authorities as a person of good character, notwithstanding his failure to reveal his acquisition of German citizenship, his voluntary association with the German Sipo/SD and his activities during the war.

79. Further, Jacob Fast did not report the circumstances under which he was landed in Canada. He did not indicate his failure to reveal to the immigration officer at the port of entry that he was a German citizen and consequently a member of a prohibited class. On the contrary, Jacob Fast submitted in the Petition that he is a person of good character.

80. Jacob Fast presented himself as a person who had acquired Canadian domicile. At the time of his application for Canadian citizenship, a person could only acquire Canadian citizenship if he had been landed in Canada, and a person could only be landed in Canada if he had been lawfully admitted.

81. Jacob Fast was interviewed by Constable B. Toews of the R.C.M.P., on or about December 8, 1953 in connection with the Petition. In the course of his interview, Jacob Fast indicated that his citizenship was Russian, that he was never suspected of having participated in subversive activities and that public opinion would not be adverse to his being granted Canadian citizenship.

82. Jacob Fast would not have been granted Canadian citizenship if he had disclosed his membership and activities during the war and his German citizenship.

83. Jacob Fast's application for citizenship was approved by a Citizenship Judge, on or about December 21, 1953. He was granted Canadian citizenship on or about June 8, 1954 and took his oath of allegiance on or about June 28, 1954, thereby obtaining Canadian citizenship.

84. The Minister states that Jacob Fast obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, which gives the Minister grounds upon which to make a report to the Governor in Council for the revocation of Jacob Fast's citizenship.

[13]            It can be seen that there are important differences between the Minister's Notice and the Statement of Claim. The Minister's Notice does not allege that Mr. Fast was personally implicated in the inhuman treatment of others while the Statement of Claim alleges that Mr. Fast was personally responsible for the arrest and mistreatment of some prisoners, some of whom were later deported to concentration camps. The Minister's Notice refers only to acts occurring between 1941 and 1947. It does not refer to events which occurred in 1953-1954 when Mr. Fast obtained his Canadian citizenship.

[14]            At the commencement of the hearings in this matter, counsel for Mr. Fast moved to strike the portion of the Minister's Notice which refers to "...other wartime activities ... which ... would have rendered [Mr. Fast] inadmissible to Canada" on the ground that it was impermissibly vague. After hearing argument on the motion, I ruled that I did not have jurisdiction to strike any portion of the Minister's Notice because it was not before me. In the course of my reasons, I made the following comments about the relationship between the Minister's Notice and the Statement of Claim:

In my view, the Dueck, Odynsky and Fast cases decided no more than the fact that the allegations made in the statement of claim must be referable to some allegation in the notice. In other words, the Minister cannot expand the scope of the notice by including within the statement of claim matters not referred to in the notice.

                                                                           . . .

However, this does not deal with the Defendant's concern about the case which he must meet. The fact that the matter is referred to the Court is, in my view, an indication that the Minister is required to prove her case in accordance with the standards which apply in a court. This means that there must be adequate notice of the case to be met, there must be disclosure of the relevant documents, and the evidence tendered must be evidence admissible in a court of law. It is within my jurisdiction to deal with the proof of the matters alleged in the statement of claim and the procedure to be followed in making that proof. The relevance of the evidence to be heard will be determined by reference to the statement of claim and not by reference to the notice. The decision of this Court as to whether the Defendant has obtained citizenship by false representation, fraud, or knowingly concealing material circumstances will be made on the basis of the allegations in the statement of claim. If there are elements in the notice which do not appear in the statement of claim and if the Minister purports to include those elements in her report should she be successful before me, then that will have to be dealt with when it occurs. The application is dismissed.

(Transcript of evidence, November 28, 2001, at p. 31-33.)

[15]               In Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] F.C.J. No. 1489, Noël J. (as he then was) considered the function of the Minister's Notice at paragraph 25:

It is therefore apparent that the matter referred to the Court pursuant to Section 18 of the Act is "the case" as set out by the Minister in the Notice and that the Minister is not entitled to make a report unless she is in receipt of the decision of the Court on "the case" referred to it. It follows that it is not open to the Minister in a reference before this Court to seek a determination on an issue that does not come within "the case" set out by the Minister in her Notice.

[16]            In Canada (Minister of Citizenship and Immigration) v. Odynsky, [1999] F.C.J. No. 746, MacKay J. considered the same issue at paragraphs 18-20:

In my view, the Notice of Revocation must be considered significant in defining, albeit in brief terms, the basis of the Minister's decision to seek revocation of the citizenship of the defendant. That is what the document, on its face, purports to do. It is the grounds there set out which give the defendant notice and a basis for deciding whether or not to request that the matter be referred to this Court. If, as in this case, he decides to request a reference, the Minister's Notice of Reference refers "the matter of the obtaining of citizenship by the respondent to this Honourable Court for a declaration that the respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances". The Notice of Revocation, annexed to and in support of the Minister's reference, is filed with the Court, well before the Summary of Facts and Evidence, now the statement of claim, is filed. In my view, the Notice of Revocation sets the framework for the Court's assessment of the Minister's request for a reference.

Similarly, in a case where, following receipt of a Notice of Revocation from the Minister, the person concerned does not request referral of the matter to this Court, it is the Notice of Revocation which sets the framework for any subsequent report to the Governor in Council by the Minister recommending revocation of citizenship of the person concerned.

I agree with Noël J. that within the scope, or the purview, or the framework set by the terms of the Notice of Revocation, the Summary of Facts and Evidence (or under the current Rules, the Minister's Statement of Claim) may provide particulars that the Minister will seek to establish in relation to the general terms in the Notice. Insofar as those later filed statements allege facts outside the scope of the Notice of Revocation, those allegations are extraneous, and irrelevant to the issue defined for the Court, and for the defendant, by the Notice of Revocation.

[17]            In Canada (Minister of Citizenship and Immigration) v. Podins, [1999] F.C.J. No. 1092, the Minister's Notice alleged that the defendant had misrepresented or failed to mention his association with Latvian auxiliary police. However, the Statement of Claim alleged that the defendant was a member of the Waffen SS. McKeown J. decided as follows at paragraph 11:

. . .In my view, the allegation that Mr. Podins collaborated with German authorities by virtue of his membership in the Waffen SS does not come within "the case" as set out in the Notice. The Notice specifies that the "collaboration" attributed to the defendant pertains to his alleged membership in the Latvian Auxiliary Police and his "work in such capacity". This wording in effect limits the scope of the allegedly collaborationist activities to Mr. Podins' employment at Valmiera EG, and precludes the introduction of other allegations post-dating that period. As the "case" against Mr. Podins does not encompass allegations of membership in the Waffen SS, it is not necessary to make findings of fact on that issue.

[18]            My ruling that the Minister could not expand the scope of the Minister's Notice by means of allegations in the Statement of Claim is consistent with the positions taken by my colleagues in Dueck, Odynsky, and Podins, supra. My ruling that the determination as to whether the defendant obtained his citizenship by false representations or knowingly concealing material circumstances would be made on the basis of allegations in the Statement of Claim must therefore be understood to refer only to those allegations which are referable to the Minister's Notice. Since allegations which have no basis in the Minister's Notice could not form the basis of a report to the Governor in Council, there is no need to resolve such issues in these proceedings. Specifically, this excludes from consideration the question of misrepresentation or concealment of material circumstances in relation to Mr. Fast's citizenship application in 1952 and 1953.

The Burden and Standard of Proof

[19]            The jurisprudence is uniform that the standard of proof in citizenship revocation matters is the civil standard of balance of probabilities though, due to the nature of the allegations, the evidence must be scrutinized with care (see Canada (Minister of Citizenship and Immigration) v. Vitols , [1998] F.C.J. No. 1373, Canada (Minister of Citizenship and Immigration) v. Kisluk, [1999] F.C.J. No. 824 and Canada (Minister of Citizenship and Immigration) v. Baumgartner, [2001] F.C.J. No. 1351). Nor is it contentious that the burden of proof lies with the Minister.

Documentary Evidence and Proof of Facts

[20]            The events which give rise to this reference occurred more than 50 years ago in the context of the Second World War. The Minister called two professional historians (Dr. Peter Black and Dr. Franz Golczewski) to give evidence about the course of the war in Ukraine, and the civil and military administration of the areas occupied by the Nazis, with particular emphasis upon the organization of the police. Another professional historian (Dr. David Marwell) testified as to the process by which ethnic Germans (Volksdeutsche) could acquire German citizenship. Dr. Dieter Gosewinkel, a German legal expert, testified as to German naturalization law and the German registration system. A Canadian historian (Dr. Donald Avery) testified as to Canadian immigration policy and practice after the Second World War with particular emphasis on the issue of security screening.

[21]            The evidence of these experts consisted of their written reports, their oral evidence and the documents which were introduced into evidence through them, as well as other documents to which they referred as part of the foundation for their reports.

[22]            An issue which recurred frequently in the course of the hearings was the evidentiary status of these documents. A large number of documents were marked as exhibits with counsel for Mr. Fast reserving his right to argue their admissibility at a later time. That issue will now be addressed.

[23]            Documents which are tendered in evidence must first be shown to be authentic, that is, they must be shown to have been made by the purported maker. If they are tendered in proof of their contents, it must also be shown that they either fall within a recognized exception to the hearsay rule, or that they are admissible pursuant to the principled exception to the hearsay rule as articulated in R. v. Kahn, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B.(K.G.), [1993] 1 S.C.R. 740.

[24]            The Minister has tendered, as proof of authenticity, the affidavits of archivists attesting to the fact that the copies which have been produced in evidence are copies of original documents in the custody of the archives. Where the archivist provides an opinion that the documents are authentic, based upon his or her training and experience with similar documents, I am prepared to accept the documents as authentic. I do so in reliance upon the archivist's expertise with similar documents and the fact that it is precisely the function of archives to maintain historical documents. The fact that such archives are open to scholars is a circumstantial guarantee of trustworthiness, as the community of scholars would soon expose collections of documents which are not authentic.

[25]            This does not give effect to the concerns raised by counsel for Mr. Fast as to the continuity of possession of the documents. In other words, the archivists' affidavits do not always trace the movement of the archives from their creators to the archives, leaving a gap which, in criminal proceedings, might well be fatal to the admissibility of these documents. While such evidence would strengthen the case for authenticity, its absence is not fatal. Given that the standard of proof is simply the balance of probabilities, the archivists' evidence is sufficient to establish authenticity.

[26]            The next issue is the use of the documents as proof of their contents. The Minister relies upon the ancient documents rule in Delgamuukw v. British Columbia, [1989] B.C.J. No. 1385, which held that documents which came within the rule were not only authentic, but also admissible in proof of their contents:

The rule, therefore, seems to be that private documents 30 years old, produced from proper custody, and otherwise free from suspicion, etc. are admissible and no evidence of the handwriting, signature, sealing or delivery need generally be given. As I have said, 30 years is the rule at common law. Legislation has changed this to 20 years in England, but there is no such legislation in this country.

                                                                           . . .

It is accordingly my judgment that ancient documents which qualify for admissibility are available as proof of the facts they contain including statements based on hearsay. Such evidence is not, of course, conclusive on any question, and may, under the rubric of weight, be disregarded in whole or in part if it is based entirely on hearsay, or if it is contradicted, or if its value as evidence is destroyed or lessened either internally or by other admissible evidence, or by common sense. Even then, provided Wigmore's 2 great tests are satisfied, the Court may feel impelled to act on hearsay if the document in which it is found demonstrates a circumstantial guarantee of trustworthiness and there is no other evidence.

Delgamuukw, supra, at p. 9, 16 (F.C.J.).

[27]            In coming to that conclusion, Chief Justice McEachern referred to the decision of the Supreme Court of Canada in [1970] S.C.R. 608">Ares v. Venner, [1970] S.C.R. 608 and to decision of the House of Lords in Myers v. Director of Public Prosecutions, [1965] AC 1001 (H.L.). As is well known, the first case refers to hospital records made by nurses under a duty to record their observations, while the second case refers to documents which could be characterized as business records. Those elements are lacking in this case. In its original aspect, the ancient documents rule was a rule dispensing with proof of authenticity. Its supporting rationale was the difficulty of proving the attestation of documents after the attesting witnesses had died. In its second aspect, the ancient documents rule concerned the use of ancient documents to prove ancient possession of land. Phipson on Evidence, Fifteenth Ed. (Sweet & Maxwell, London, 2000), upon which Chief Justice McEachern relied, shows that ancient documents, produced from proper custody are admissible in proof of ancient possession (see article 36-60, at p. 914). The Law of Evidence in Canada (2^nd Ed.), Sopinka et al (Butterworths, Toronto, 1999) is to the same effect (see paragraph 6-200, at p. 245).

[28]            The rationale which supports the ancient documents rule dispensing with proof of authenticity would not support the use of such documents in proof of their contents, except as to proof of ancient possession. Age alone does not bring such documents within the rule in [1970] S.C.R. 608">Ares, supra or Myers, supra.

[29]            The Minister also sought to show that documents which originated in the State Archives of Zaporozh'e Oblast were business records [note: Zaporozhye is the English version of that city's name; Zaporozh'e is the transliteration of the name as written in the Cyrillic alphabet]. The evidence in support of this proposition was the affidavit of Dr. Franz Golczewski who, after deposing that he had examined the originals of the documents attached as copies to the affidavit of the archivist, went on to say at paragraphs 11-12:

11. As a result of my academic and professional experience, I am familiar with the documents produced during the period of the German occupation of Poland Ukraine, Belarus, and Russia, including documents from other archives which are similar to those copies which are annexed as exhibits 1 to 71 to the aforesaid affidavit [affidavit of the archivist].

12. As a result of my academic and professional experience, I am of the opinion that the original records, true copies of which are annexed as exhibits 1 to 71 to the aforesaid Affidavit, were made by the SS and Police organization, and/or the Wehrmacht, and/or the German civil administration, and/or the local indigenous administration in the area of Zaporozhye, during the German occupation of Ukraine, in the usual and ordinary course of their business.

[30]            Business records are admissible in proof of their contents by virtue of section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5:

[31]            The Minister appears to have proceeded on the basis that since the circumstances of the creation of documents is a matter of fact, a witness can therefore testify that documents were made in the usual and ordinary course of business. I agree that the circumstances in which documents were made is a question of fact, but I do not agree that whether documents were made in the usual and ordinary course of business can be proved by simply calling a witness to say that they were. A witness may be called to testify as to the circumstances under which documents are created and the uses to which they are put. Whether that evidence satisfies the test of "usual and ordinary course of business" within the meaning of section 30 of the Canada Evidence Act is a matter for the judge, not the witness, to decide.

[32]            This conclusion is not consistent with the result in Canada (Minister of Citizenship and Immigration) v. Oberlander, [1999] 1 F.C. 88. The Court had before it an affidavit of an archivist attesting that the documents in question were made in the usual and ordinary course of business. The issue was whether the archivist, who did not have personal knowledge of the making of the documents, could give such evidence. MacKay J. held that the archivist's evidence was admissible, on the basis of the latter's expertise with such documents. It appears that all concerned accepted that the archivist's opinion, if admissible for this purpose, was determinative of the issue. It does not appear that the issue of whether or not this was a question for a witness was raised. The result may not have been the same if it had been.

[33]            One therefore turns to the principled exception to the hearsay rule. There is little question that necessity militates in favour of the reception of these records as evidence of their contents. There is no practical possibility of locating and calling the various authors of these documents to give the evidence which the documents record. Reliability is the issue. As a class, the documents were made by various authors, under various circumstances, acting under various obligations or duties.    It is difficult to say anything about them as a class other than that they were not made with these proceedings in mind. To the extent that they were created for operational purposes, they would have the same guarantee of trustworthiness as business records, i.e. the organization accepted them as reliable for the purpose of conducting its operations. But, with some exceptions the operational status of documents was not proved.

[34]            Beyond that, the only thing which these documents have in common is the fact that they are produced by historians in support of their expert reports. The historians are thus vouching that they are satisfied that the documents are reliable enough for their purposes, for there would be no purpose in citing them if they were not. This would be self-evident if the documents had been selected by the historians themselves as part of their original research in the archives, but that is not generally the case.

[35]            In the course of the evidence, it became known that many of the documents to which the experts made reference were not documents which they had selected as a result of their own archival research. The Minister employed contract historians to examine documents in various archives, to select those which were thought to be relevant to these proceedings, and to arrange for copies of those documents to be made. Those documents were then provided to the expert witnesses (transcript of evidence, November 28, 2001, at p. 61-62 (Dr. Black); December 3, 2001, at p. 426 (Dr. Marwell); December 10, 2001, at p. 598 (Dr. Gosewinkel) and at p. 632-33 (Dr. Avery); and January 9, 2002, at p. 1062 (Dr. Golczewski)). But every expert witness also relied on documents other than those provided by the Department of Justice, and in some cases, witnesses conducted their own research and located relevant documents other than those provided by the Department of Justice (transcript of evidence of Dr. Marwell's testimony on December 3, 2001, at page 427 as well as the transcript of evidence of Dr. Avery's testimony on December 11, 2001, at p. 712 et seq.).

[36]            So, the use of particular documents by the historians may be weaker evidence of reliability than would be the case if the historians had selected the documents themselves. But it remains some evidence that the historians thought the documents trustworthy. One cannot assume that professional historians, whose reputations are at risk, would rely upon documents which they knew to be unreliable. So, as a general rule, it is my view that proof of the reliability of the documents is supplied by the fact that professional historians have relied upon them in coming to the conclusions which they have put before the Court. This does not preclude a challenge to particular documents, or classes of documents. Furthermore, the question of weight is always an issue. Consequently, I am prepared to receive archival documents in evidence in proof of their contents where the reliability of the documents for that purpose is asserted, implicitly or explicitly, by a professional historian or other witness whose familiarity with the documents permits them to make such an assertion.

[37]            There is another class of documents, those produced from Canadian archives, whose admissibility is not in question because it was the subject of agreement. Documents produced from Canadian archives are accepted as authentic and prima facie proof of their contents, subject always to challenge on their meaning or the weight to be given to them.

[38]            In the result, I am prepared to accept the archival documents tendered as authentic, and as proof of their contents. This does not preclude challenges to specific documents, or to the weight to be given to specific documents.

IDENTITY OF JACOB FAST

[39]            Having resolved the preliminary issues, the first substantive issue to be addressed is whether Jacob Fast, the defendant in these proceedings, is the person who appears in the archival records produced by the Minister. The Jacob Fast who is before the Court is a 93 year old man who suffers from a form of Alzheimer's disease and lives in a nursing home in St. Catharines, Ontario. There is a record of a man named Jakob Fast who lived in Zaporozhye, Ukraine, in 1941. There is also a record of a person of the same name who underwent naturalization proceedings in Germany in 1944. The Minister alleges that they are all the same person. If the Minister is wrong about that fact, then this inquiry need proceed no further.

[40]            We know certain things about Jacob Fast and his family from the documents which accompanied them when they came to Canada. That information can be compared to the information in the historical record in order to determine if we are dealing with the same persons.

[41]            It is not contested that the defendant Jacob Fast came to Canada in 1947 aboard the S.S. General M.B. Stewart. His identifying information and that of his family members are recorded in the Canadian Government Return (C.G.R.), exhibit 49, produced from Canadian archives. The particulars of immigrants arriving in Canada were recorded in the C.G.R. by the ship's purser from the immigrant's travel documents (transcript of evidence of Joseph Gunn, December 4, 2001, at p. 538-39). Exhibit 49, the C.G.R. from the S.S. General M.B. Stewart, discloses that Jacob Fast was landed in Canada on July 31, 1947, under the authority of a travel document no. GBZ186 issued at Hanover, Germany, on June 13, 1947. Column 1 of the C.G.R. contains a handwritten number "453243" opposite the name of Jacob Fast. His place of birth is recorded as "Tiegenhagen, Russia". His nationality is described as "Russian" and his "race or people" is noted as "Dutch". His occupation in his own country is described as "Farmer" and the occupation he intended to follow in Canada is also "Farmer". His destination is listed as "Uncle Toews Henry, Arnaud, Man.". There are additional handwritten entries in columns 25 and 26 which read as follows: "Can. Imm. Visa Ottawa B30154 DP 13 June 1947" (exhibit 50).

[42]            Travelling with Jacob Fast were the individuals listed below, who are shown as having the same country and place of birth, nationality, race, destination, and next of kin as him. The information which is particular to each individual, as recorded on exhibit 49, is shown below:

Name                         Reference                  Relation- Occupation              Travel      

Number                     ship                                                              Doc.

Nathalie Fast           453244                     wife                           Housewife                 GBZ177

Therese    Fast          453245                      daughter                    student                      GBZ186

Marie       Fast          453246                      daughter                    student                      GBZ186

Heinrich Fast          453247                      son                           student                     GBZ186

[43]            The dates of birth of the individuals, including Jacob Fast, are not listed.

[44]            In his examination for discovery, Mr. Fast identified the travel document which had been issued to him in Germany for travel to Canada (Examination for Discovery of Jacob Fast, Vol. 2, questions 64-66). It is a document entitled "Intergovernmental Committee on Refugees ("I.G.C.R."), Certificate for the Purpose of Emigration to Canada" (exhibit 41). That document bears serial number GBZ186, which is the same number as appears in the C.G.R., exhibit 49. Exhibit 41 contains the following information:

Name                                           Birthplace                                  Date of Birth            Occupation

Jakob Fast                                  Tiegenhagen, Russia                  June 23, 1910           farmer

Therese Fast                              Russia                                        Dec. 30, 1931          

Maria Fast                                 Russia                                        Oct. 31, 1938

Heinrich Fast                           Russia                                        Sept. 7, 1941

[45]            It is noteworthy that there is no record on exhibit 41 of Nathalie Fast, who is listed as

Jacob Fast's wife on exhibit 49. However, exhibit 49 shows a different reference for her travel document so I assume that as an adult, she was issued her own travel document while Mr. Fast and the children travelled on a single travel document. Exhibit 41 also bears a Canadian Immigrant Visa stamp which indicates that the authority for the Visa is Ottawa file no. B30154 DP and that the visa was issued at Hanover, Germany, on June 13, 1947. Immediately above the Immigrant Visa stamp appear four handwritten numbers: 453243, 453245, 453246, and 453247. These numbers appear opposite the names of family members on the C.G.R. Mr. Fast's travel document, also bears a stamp which says " Intergovernmental Committee on Refugees" and which appears to indicate that the travel document was issued in Hanover, Germany, on June 13, 1947. On its back is another Immigration Canada stamp bearing the date July 31, 1947, and a handwritten notation: "General M.B. Stewart, sheet 26, lines 2, 4, 5, 6".

[46]            In his examination for discovery, Mr. Fast admitted that he had filled in the information which appears in handwritten form on the travel document. The individuals described in the C.G.R. are the same individuals, except for Nathalie Fast, as the individuals described in the travel document. I note the correspondence of the travel document number, and the visa numbers on both documents. I also note that exhibit 49 is a copy of sheet 26 of the C.G.R. and that the names of Jacob Fast, Therese Fast, Marie Fast and Heinrich Fast appear at lines 2, 4, 5, and 6 of that document. This corresponds to the entry on the back of the travel document.

[47]            The particulars of Jacob Fast and his family is identifying information which can be compared to the information found in the archival documents to determine if the Jakob Fast who appears there is the defendant.

[48]            Among the documents produced by the Minister, through Dr. Black, was exhibit 27 which was described as a census document for a portion of Adolf Hitler Street in Zaporozhye. According to the evidence of Dr. Black, the document would have been completed some time after April 7, 1942 (transcript, Nov. 29, 2001, at p. 195-96). That document records certain data of interest in these proceedings. For present purposes, the relevant information is the following:

Line no.                     Name                                                           Place of Birth                           Date of birth   

192                           Fast, Natalka Aronivna                              Nizhnya Khotrytsa                  29.V.12

193                           Fast, Yakov Yakovlevich                          Khortitsa                   23.VI.10

194                           Fast, Nataliya Yakovlevna                        Khortitsa                   30.XII.31

195                           Fast, Konstantin Yakovlevich                  Khortitsa                   26.VII.36

196                           Fast, Mariya Yakovlevna                         Khortitsa                   31.X.38

197                           Fast, Genrikh                                              Khortitsa                   9.VII.41

[49]            The translator's notes with respect to this document show that the name Yakov is the Cyrillic equivalent of Jakob, as is the case with Nataliya (Nathatlie) and Genrikh (Heinrich).

[50]            All of the persons described in these entries are shown as residing at 75 Adolf Hitler Street and all are indicated to have moved to Zaporozhye in 1941. The conclusion that these entries relate to one family is easily drawn. One notes that Yakov Fast has the same birthdate as Jacob Fast (June 23, 1910) as do Mariya Fast and Marie Fast (October 31, 1938) and Genrikh Fast and Heinrich Fast (September 7, 1941). Nataliya Yakovlevna Fast has the same birthdate as Therese Fast (December 30, 1931) though not the same name. There is no reference in the Canadian material to Konstantin Yakovlevich Fast. In his Examination for Discovery, Mr. Fast agreed that his eldest child Therese Nathalie was born on December 31, 1931. He also agreed that his second child Konstantin was born on October 26, 1936, but that he died in an accident (Examination for Discovery, Vol 1, Q. 109, 111). Consequently, it would appear that the reference to Nathalie in exhibit 27 could be a reference to the Therese Fast who appears in exhibit 49. Similarly, accidental death prior to the arrival of the family in Hanover, Germany, in June 1946 could explain the absence of Konstantin from the C.G.R. (exhibit 47) and the I.G.C.R. travel document (exhibit 41).

[51]            However, the place of birth shown in the census data, Khortitsa, Russia, is not the same place of birth as shown in exhibits 41 and 49, Tiegenhagen, Russia. There is no explanation for the discrepancy.

[52]            It is possible that there was more than one Jakob Fast in Zaporozhye in 1942. It is possible but less likely that two or more of them had the same birthdate as the defendant. It is considerably less likely that another of those Jakob Fasts, not only had the same birthdate but also had the same number of children, born on the same dates and bearing the same names (with one small exception) as the defendant. Consequently, while the difference in the places of birth is unexplained, the many items which are identical make it more likely than not that the Yakov Fast who appears in exhibit 27 is the Jacob Fast who appears in exhibits 41 and 49.

[53]            There is a second series of documents which refer to a Jakob Fast, the Einwandererzentralstelle documents (EWZ). The Einwandererzentralstelle, translated as "Central Immigration Office", is described as follows in the report submitted by Dr. David Marwell:

11. ... the Einwanderezentralstelle (EWZ) was established as an agency subordinate to the Chief of Security Policy and SD. It was conceived of as an efficient means of processing huge numbers of ethnic Germans for resettlement and naturalization: rather than requiring ethnic Germans to visit the many scattered authorities (police, health, labour, citizenship, etc.) that would play a role in the decisions concerning their eventual settlement and naturalization, an agency was established that brought representatives of all relevant agencies together under one roof. This consolidation was conceived of as an efficient and effective method to ensure a consistent and speedy process. In addition to stationary offices to which ethnic Germans were taken, the EWZ organized mobile commissions that would go to resettlement camps and areas of dense ethnic German settlement. The EWZ also outfitted a special train that was essentially a mobile office.

(Exhibit 30)

[54]            Dr. Marwell is an historian who is currently the Director of the Museum of Jewish Heritage in New York City. He holds a Ph.D. degree in modern European history. He has been employed in various capacities, including Chief of Investigative Research by the Office of Special Investigations of the U.S. Department of Justice from 1980 to 1988. The Office of Special Investigations was responsible for the prosecution of Nazi war criminals living in the United States. From 1988 to 1994, he was the Director of the Berlin Document Center, which he described as follows in his testimony:

It was an institution that was established by the U.S. Army in 1945 and then transferred to State Department control in 1953. That was a repository for captured records, records captured by U.S. and other Allied forces at the end of the war - actually, before the end of the war and then after the cessation of hostilities. It became a major centre for the prosecution of war criminals for the so-called de-Nazification proceedings, for other government activities in Germany and the United States. It also became a major scholarly archive for study of the Third Reich.

(Transcript of evidence, December 3, 2001, at p. 337.)

[55]            In the course of his duties as Director of the Berlin Document Centre, Dr. Marwell supervised the microfilming of the documents held there, which consisted of 12 linear miles of archival material. The microfilmed version takes up 55 million frames of microfilm. Prior to the transfer of the documents in the Berlin Document Centre to the German Government,                       Dr. Marwell was responsible for the publication of a volume entitled The Holdings of the Berlin Document Centre, an entire chapter of which was devoted to the EWZ documents. His evidence was that both as a researcher and as Director of the Berlin Document Centre, he was very familiar with the EWZ records.

[56]            Dr. Marwell described the chain of possession of the EWZ documents as follows:

Yes. The records were kept by the EWZ in Litzmannstadt. They were, at the end of the war -- and we have records that detail this -- they were evacuated and made their way by truck, I believe, to a town in Bavaria, Solnhofen. At the end of hostilities they were captured -- I think "seized" is the correct term -- by U.S. forces and eventually made their way to Berlin via a document collection point in Kassel. They found their way to Berlin some time in 1946, February 1946, if I am not mistaken, but I can check my notes. There they found their way to the document centre in Zehlendorf where they remained until not too long ago, certainly remained through my entire tenure there, and then were moved by the German Federal Archives some time in the late 1990s to a different place in Berlin. They were under American custody from the moment they were captured -- and we have the chain of custody -- until they were transferred by me to the German government on July 1, 1994.

(Transcript of evidence, December 3, 2001, at p. 364.)

[57]            The Minister introduced into evidence through Dr. Marwell a series of EWZ documents which relate to a Jakob Fast. Dr. Marwell testified that he had personally viewed the microfilm record of the documents tendered. He was asked if he was satisfied as to the authenticity of exhibit 31, to which he replied:

These cards, the so-called G-Karte, were stored together at the document centre in one of our rooms. There were literally hundreds of thousands of these. I had occasion to look at thousands, I would say. It is hard to figure out the right number, but that is the order of magnitude. This is identical in form and similar in content to the others that I saw. Knowing its provenance and pedigree, I am convinced of its authenticity.

(Transcript of evidence, December 3, 2001, at p. 365.)

[58]            Dr. Marwell testified that, for the same reasons as he expressed in relation to exhibit 31, he was satisfied as to the authenticity of the other documents which were put into evidence through him. On the basis of Dr. Marwell's evidence, I am satisfied that the EWZ documents which were put into evidence through Dr. Marwell, exhibits 31 to 39, are authentic and are prima facie proof of their contents.

[59]            One of those documents was exhibit 35, which Dr. Marwell described as a "Stamblatt", a word for which a precise translation is difficult but which is roughly rendered as "Registration" (transcript, December 3, 2001, at p. 375). That document was used to record the basic biographical data of applicants for naturalization. In the case of exhibit 35, it records the registration of one Jakob Fast, whose birthdate and birthplace are shown as June 23, 1910, at Tiegenhagen, in the Zaporozhye region of Ukraine U.S.S.R. His wife is shown as Nathalie Fast, whose birthdate is May 29, 1912. The couple are shown as having four children whose names and birthdates are: Natalie, December 30, 1931, Konstantin, July 26, 1936, Marie, October 31, 1938 and Heinz September 7, 1941. The processing number assigned to the application is 782058. While the information on exhibit 35 appears as typewritten entries on a printed form, there are in the margin of the photocopy of the microfilm version of the original document six handwritten X's opposite each of the persons named. In his evidence, Dr. Marwell said that the procedures in place required the person taking the application to indicate that the persons whose particulars were being recorded were present before him by marking an X in the margin (transcript, December 3, 2001, at p. 376).

[60]            Given the match between the name, birthplace and birthdate of the defendant Jacob Fast and the Jakob Fast who is described in exhibit 35 in particular, but who is also referred to with varying degrees of particularity in exhibits 31-34 and 36-39, I am satisfied that they are the same person. The conclusion is confirmed by the match between the names and birthdates of                    Mr. Fast's wife and children, when allowance is made for the name of Nathalie/Therese and the absence of Konstantin in later records.

[61]            There is another document which refers to a Jacob Fast, exhibit 53, which was put into evidence through the testimony of Dr. Dieter Gosewinkel, who gave evidence as an expert on German law relating to naturalization, citizenship and the personal registration system in effect in Germany. Exhibit 53 is a copy of a registration document maintained at the Registration Office of the Municipal Office of the City of Bremervörde, Germany. It was authenticated by the affidavit of Margrit Alpers, an employee of the Registration Office since 1972. I am satisfied as to the authenticity of the document on the basis of Margrit Alpers' affidavit.

[62]            Dr. Gosewinkel testified that German law required persons moving into a new municipal district to register with the municipal authorities within three days of their arrival. Exhibit 35 is a copy of a registration document with respect to one Jacob Fast who is recorded as having taken up residence in Minstedt in the Bremervörde area on September 27, 1945. The name, birthplace and birthdate of that Jacob Fast, as well as the names and birthdates of his wife and children, correspond to the particulars of the defendant Jacob Fast. On the basis that the odds of there being a second Jacob Fast with the same personal information being so remote as to be negligible, I am satisfied that the Jacob Fast described in exhibit 35 is the Jacob Fast who is the defendant in these proceedings.

[63]            As a result, I am satisfied that the defendant Jacob Fast was a resident of Zaporozhye, Ukraine, from 1941 to 1943, that he is the person who was the object of a process involving the EWZ in 1944 and that he is also the person who registered as a resident of Minstedt on September 9, 1945. As a result, it is necessary to inquire into Jacob Fast's wartime activities to determine if they include activities which could have been a bar to his immigration to Canada.

JACOB FAST'S CITIZENSHIP AND WARTIME ACTIVITIES

Jacob Fast's Wartime Activities

[64]            The Minister alleges that the defendant Jacob Fast was a member of, or the head of the Political Department of the indigenous auxiliary police in Zaporozhye from 1941 to 1943. The following paragraphs from the Statement of Claim set out the structure and function of the auxiliary police. These facts have been proved through the evidence of Dr. Black and the evidence taken on Commission, to which reference will be made later in these reasons.

24. Indigenous auxiliary police units were established in occupied Ukraine to assist the German Sipo/SD [Security Police (Sipo) and Security Service (Sicherheitsdeinst or SD)] and the Order Police (known as the Auxiliaries of the Sipo/SD or Auxiliaries of the Order Police). These units were made up of ethnic German and non-ethnic-German volunteers from the local population. Before being allowed to join the Auxiliaries of the Sipo/SD, they were screened by the Sipo/SD.

25. Auxiliaries of the Sipo/SD worked under the direction of the German Sipo/SD in the occupied territories and helped carry out their duties. This included maintaining security and order in the occupied territories, assisting in implementing German occupation policies such as the exploitation of the physical and human resources of the occupied territories and assisting in the systematic persecution and extermination of the political and racial enemies of the Reich.

26. Members of the indigenous auxiliary police units enjoyed better living conditions and received extra benefits as compared to the local population in general. In April 1942, ethnic Germans who had police functions in association with the German Sipo/SD gained special status. Although they did not become members of the German police per se, their status was adjusted to provide these individuals with a status similar to that of ordinary German auxiliary policemen (Hilfspolizeibeamter).

27. Ethnic Germans were seen by the German authorities to be appropriate and reliable candidates who would assist in carrying out local administrative and police functions, and in implementing Nazi policies.

Auxiliary Police Unit in Zaporozhye

28. While Zaporozhye was under military administration (Fall 1941-Summer 1942) an indigenous auxiliary police unit was established. It was headed by Ivan Fast, Jacob Fast's brother, and consisted of six (6) departments. It operated under the control and direction of both the German military authorities and the German Sipo/SD located in the area.

29. One of the departments within this indigenous auxiliary police unit was the Political Police (known as "Political Police", " Political Department", or even simply "SD" by the locals).

30. In June of 1942, once Zaporozhye came under civil administration, this indigenous auxiliary police unit was reorganized and, but for the Political Police, came under the control of the Order Police. The indigenous auxiliary police unit was still headed by Ivan Fast.

31. The Political Police, although still a part of the indigenous auxiliary police unit, remained under the control and supervision of the German Sipo/SD.

Activities of the Political Police and Fast's Activities

32. The Political Police was responsible under the German occupation for the arrest, torture, mistreatment, imprisonment and ultimately the deportation of prisoners to concentration camps in Poland and Germany.

33. The prisoners of the Political Police were detained in inhuman conditions and submitted to the sessions of torture and interrogations. An unknown number were executed.

34. The Political Police, as Auxiliary of the Sipo/SD, was responsible for the enforcement of the policies of the German Sipo/SD with respect to the persecution and execution of Jews, Communists and other perceived enemies of the Third Reich.

35. The Auxiliary Police in Zaporozhye, including the Political Police, participated in the rounding up and the execution of the Jewish population of the city of Zaporozhye.

[65]            Jacob Fast was examined for discovery in these proceedings pursuant to an order made by Lutfy, A.C.J. (as he then was). An order was required because counsel for Mr. Fast resisted producing him for examination because of his advanced age and his mental condition, the particulars of which are reported at paragraphs 20 to 28 of my reasons in Canada (Minister of Citizenship and Immigration) v. Fast, [2002] 3 F.C. 373. The order provided that the entire examination for discovery be videotaped, leaving it to the trial judge to decide what use was to be made of the evidence given at the examination. In the course of the trial, I dealt with the issue of Mr. Fast's competence and the use to be made of the discovery evidence. On the question of competence and the reading in of the questions and answers from Mr. Fast's examination for discovery, I made the following ruling:

Having reviewed significant portions of the videotape of the examination for discovery, I can say that Mr. Fast is under certain circumstances able to give an account of his activities during the wartime period. There are exchanges of questions and answers in which it seems that Mr. Fast is alive to the questions being put to him and his responses to them. However, there are also other parts where it is clear that Mr. Fast is confused and that his answers are not responsive to the questions being posed. There are several passages where it is apparent that Mr. Fast and Mr. Vita are speaking at cross purposes. On different occasions Mr. Fast gives contradictory answers to the same question.

                                                                           . . .

That is my ruling on the examinations for discovery. Mr. Vita will have the right to put in his questions subject to the question of explanatory passages. The scope of explanatory passages, given the nature of Mr. Fast's condition, will be sufficient to show that the answer sought to be read in does not express his evidence. In other words, if the explanatory passage can show some confusion or misunderstanding, that is a legitimate use of the explanatory passages. I would expect them to be taken from the portion surrounding the answer sought to be read in. I would not expect to be reading in as explanatory passages other places where contradictory evidence was given.

(Transcript of evidence, February 28, 2002, at p. 1366-67, 1370.)

[66]            I later made certain rulings as to the portions of his examination for discovery which could be read into evidence by the Minister ([2002] F.C.J. No. 819).    I also rejected a motion on the part of Mr. Fast's counsel that he be allowed to read in portions of Mr. Fast's examination for discovery as part of his case in chief on the ground of necessity, Mr. Fast's mental condition making it impossible for him to testify on his own behalf (transcript of evidence, April 24, 2002, at p. 1526 et seq.). All of this to say that notwithstanding Mr. Fast's age and condition, I am satisfied that he was competent to give responsive answers to some of the questions which were put to him. His counsel was given the opportunity to challenge the questions and answers sought to be read in by the Minister. Only those questions and answers with respect to which I was satisfied that Mr. Fast understood the nature of the questions were allowed to be read into evidence.

[67]            With that introduction, what does Mr. Fast himself say about his wartime activities in the portions of his examination for discovery read into evidence by the Minister? When asked about exhibit 27, the census of Zaporozhye, in which it is indicated that he was employed by the Political Department of the auxiliary police, the following exchange took place:

Mr. Vita:

298.          Q. For, for you, Mr. Fast, it says "Employed at the Political Department" ... if you look at column 10.

A. I never was in the Political Department.

299.          Q. So you say that this, this is incorrect?

A. No ... I have never been in connection with politics.

300.          Q. Well the Political Department wasn't politics; it was a department of the auxiliary police.

A. Well, I haven't been ... a police. I was auto mechanic.

301.          Q. Okay

A. And I did that when the Germans were there.

[68]            At another point, Mr. Fast was asked questions about exhibit 24, a document put into evidence through Dr. Peter Black. It was authenticated by the affidavit of Alexander Sergeevich Tedeyev, Director of the State Archives of Zaporozhye, as a copy of a document maintained in those archives. Dr. Black identified the document as a list of SD employees in the City of Zaporozhye which was prepared for the purposes of allocating rations of sugar. According to         Dr. Black, "SD" was shorthand for "Security Police and SD" (transcript of evidence, November 29, 2001, at p. 185). Dr. Black indicated that the document was made no later than December 1942 (transcript of evidence, ibid). The first name on the list is "Fast, Yakov Yakovlevich". The questions and answers read into evidence by the Minister on this document include the following:

339.         Q. Well, if that is you, that would mean that you were working for the "SD", the Singer Heistine [Sicherheitsdeinst] ...according to this list.

A. Oh, is that that? Yes. I never worked for "SD". And these are those?

340           Q. Yes.

A. Twenty-six? [There are twenty six names on the list]

[69]            And, later in the examination, Mr. Fast was asked about exhibit 33, one of the documents put into evidence by Dr. Marwell. Exhibit 33 is a printed form on which there are handwritten entries. The document is entitled "Application for Naturalization" and it bears the signature of a Jakob Fast. The following questions and answers, among others, relating to this document were read into evidence by the Minister:

414.         Q. Mr. Fast, what I was trying to put to you that, at least according to this document, ... from October 8, 1941 to April 17, 1944 ... you were employed with the SD. Yes.

A. How was I supposed to be occupied there?

415.          Q. Well, that's another, another issue. But let me - so that, just, just so you get it clear,    that would be ... that would be about six months after? This date is six months after you left Zaporozhye ... give or take ... that you were still employed with the "SD".

A. Yes. My mistake. Then I would have to been - have been a member there.

416.          Q. Well, that's what the document says.

Mr. Davies: The document says what, that he was a member of the SD? It certainly does not.

Mr. Vita: You can argue whatever the document says.

Mr. Davies: It doesn't say that.

Interpreter: That you have been a member ...

A. That I have been a member there?

Mr. Vita:

417.          Q. This document says, "Military Service" and you can read the line what it says.

A. I worked as a mechanic there.

[70]            At a different time, Mr. Fast was asked questions about exhibit 32, which is another document which was put into evidence through Dr. Marwell. This exhibit is a two page form used in the EWZ process. It appears to focus on training and employment issues. It is described in the transcript of evidence as "EWZ - Employment file". On the second page of the document there is a section entitled "Employment to date". In that section, the following information is recorded with respect to Jakob Fast:

Name, location and type of business       Nature of employment                              From        To

Fire Brigade                                                 driver                                                            1930         1932

illegible                                                                                                                              1932         1934

In various businesses                                 driver                                                            1935         1941

With SD                                                     interpreter                                                   1941         1943

[71]            Mr. Fast was asked questions with respect to this document, the material portions of which are as follows:

82.           Q. Let's turn to the second page. That also contains some information about your occupation from 1930 to 1943.

Interpreter: The second page

Mr. Vita:

83.            Q. Yes. Yes.

A. Yes?

84.            Q. Did you provide that information to the German official?

A. What's written here?

85.            Q. That's right

A. Yes. I have that.

86.            Q. Yes, you provided that information? Is that the answer?

A. Yes, I give that information.

[72]            Near the conclusion of Mr. Fast's examination, the following questions and answers were asked and answered:

158.          Q. Mr. Fast, did you ever wear a uniform in the period 1941 to 1944?

A. No, I never had a uniform.

159.        Q. Did you ...

A. I didn't have uniform.

160.          Q. Did you ever carry a gun, either a rifle or a pistol?

A. No, I never had one.

161.          Q. Did you ever receive a Declaration [decoration] from the German Reich?

A. No.

[73]            The information put in as part of the Minister's case is to the effect that Mr. Fast had no connection with the SD [note: unless the context indicates otherwise I am using the expression SD as it was used by the local population to refer to the Political Department of the auxiliary police]. The Minister also relies on an ambiguous answer to the effect that he may have been a member of the SD followed by the assertion that he was a driver "there". The Minister also read into the record, as part of her case, an admission that Mr. Fast provided the information which appears on page 2 of exhibit 32 to the effect that he was "with" the SD from 1941 to 1943, and a denial that he wore a uniform or carried a gun. The denial that he wore a uniform is contradicted by a photo which is attached to exhibit 31 and which clearly shows him to be wearing a uniform. The identifying number in the photograph, 782058, is the same number which appears on all EWZ documents relating to Jakob Fast. There is no evidence as to the type of uniform.

[74]            For the most part, this evidence is exculpatory but it has been put into evidence as part of the Minister's case. However, I am unable to come to any conclusions about Mr. Fast's wartime activities on the basis of his answers to questions put to him on examination for discovery. There are contradictory answers, unequivocal denials of any involvement with the SD mixed with answers which suggest that he volunteered to EWZ officials that he was "with" the SD. Taking all of the discovery evidence together, I do not believe that it proves, on a balance of probabilities, that Mr. Fast was a member of the SD from 1941 to 1943.

[75]            The next source of information about Mr. Fast's wartime activities is the commission evidence taken in Ukraine and put into evidence in these proceedings as exhibit 155. That evidence was taken in Zaporozhye, Ukraine, on August 20 to 23, 2001. Sitting as a commissioner, I heard evidence from Galina Karpovna Sivodid, Mariya Ivanovna Kopayevskaya, Petr Sergeyevich Motryev, Pavil Mikhaylovich Vasilenko, Anatoli Nikiforovich Fomin, Petro Stepanovich Kudin. All but one had been inmates of Nazi concentration camps, rounded up by the occupying forces or their local proxies. It is not necessary for my purposes to give a detailed account of their evidence, but I do not wish my brevity to be taken as an indication that I was unmoved by their stories. They came and they told me, humbly and simply, of the cruelty they saw and the suffering they endured. Even now, I can see Galina Karpovna Sivodid, a number tattooed on her forearm, sitting on a rickety chair in a sweltering, airless courtroom in Zaporozhye. I hear the years in her voice as she tells me of the fate of the jews of Zaporozhye:

Q.            Could you tell the Court what happened to the Jews in Zaporozhye?

A.            Well, don't you know how they were treated? They were shot. I remember once I was walking by and that happened in broad daylight. It was not far from Angolenko Street where there is now this bus station. There was a file of people. They were elderly people, children. They were Jews. I remember there was one elderly lady, apparently my age, and she had no clothes and she was clad very poorly. They were all taken. This is what I saw.

Q.            Could you tell the Court who was guarding them?

A.            They were escorted by polizei. These people were escorted by polizei who were armed. They had their guns. They were shot at Sovkhoz Stalin. This is how it was called then. Now this is the experimental farm. They had anti-tank trenches. This is where they were shot.

Q.            Could you tell the Court whether the policemen were wearing uniforms or not?

A.            So they were wearing black coats and white bands. I remember the sounds of shooting. We lived at Kosmicheskiy, Komunarskiy Street. My elder daughter was five years old. I remember when the guns started shooting, she would yell "They started shooting. They started shooting", and she would try to run away and hide.*

Q.            Am I to understand, Mrs. Sivodid, that your house was close to the Stalin State Farm?

A.            That was some 2.5 to 3 kilometres maximum, but we could hear it very well because we could hear the machine guns very clear.

* The transcript of evidence reads "I remember when the guns started shooting she would yell. They started shooting. They started shooting, and they would try to run away and hide." I have reproduced the passage as I remember it and as it appears in my notes.

[76]            Even the children knew murder was in the air.

[77]            Galina Karpovna Sivodid testified that she was arrested and after being held twelve days in the Gestapo building, she was taken to the prison located on Dzerzhinskiy Street near Angolenko Street. She testified that there were two Fast brothers there. One was the Chief of Police and the other was Chief of the Prison. The Chief of the Prison was the younger one, who had blond hair (exhibit 155, at p. 36-37). The prison guards wore black uniforms while the Fast brothers wore civilian clothing (exhibit 155, at p. 38). In cross-examination, she said that the Prison Chief had red hair. She also indicated that at an earlier time, she had picked a photograph of a red-headed man out of eight photographs which were shown to her as the photograph of the Prison Chief (exhibit 155, at p. 51-53).

[78]            Mariya Ivanovna Kopayevskaya saw her father arrested and taken to the police station at the corner of Dzerzhinskiy and Angolenko streets. From there he was taken to 2 Dzerzhinskiy Street for interrogation. Standing on the street, she heard his screams as he was tortured. She testified that Jacob Fast's brother, Ivan, was the Chief of Police (exhibit 155, at p. 68). She did not know exactly what Jacob Fast did, though she thought that he worked for the Germans, perhaps as an interpreter. She described him as a support soldier. She did some cleaning in a building which was used as a canteen by the Germans. She saw Jacob Fast there. He was wearing a khaki coloured uniform and carried a handgun (exhibit 155, at p. 70). She testified that he worked in the building at the corner of Proletaraskaya and Hohol streets.

[79]            Petr Sergeyevich Motryev was arrested in 1943 and spent a month in SD custody before being sent to a concentration camp. He spoke of the appalling conditions in the SD prison and of his trip by rail to the concentration camp. He said that Dachau was a resort compared to the treatment he had received in SD custody.    He said nothing about Jacob Fast.

[80]            Pavil Mikhaylovich Vasilenko was arrested at the same time as Petr Sergeyevich Motryev. After his arrest, they were taken to the police station on Chekista Street. After a month, they were taken to the SD building on Angolenko Street. He identified a man named Links as the Chief of the Prison, a slim, red-headed, red faced man. From the SD prison, he was taken, first to Auschwitz, and then to Dachau. He said nothing about Jacob Fast.

[81]            Anatoli Nikiforovich Fomin was arrested and taken to the prison on Angolenko Street, which he later learned was operated by the SD. During one interrogation, a classmate from vocational school, a local German, was present as interpreter. He said that he saw the Prison Chief once but did not know his name. He was a slim man with a reddish face, and red hair. From the prison, he was taken to Buchenwald.

[82]            Petro Stepanovich Kudin was arrested in September 1943 because of his involvement with the partisans. He was taken to the district police station where he was made to wait facing a wall with his hands behind his back. After an hour, a man in a German uniform with SS collar tabs and an SD insignia on the sleeve came in and grabbed Mr. Kudin's hair, raised his head and looked him in the face. He then threw his hat and a folder he was carrying on a table and introduced himself as Fast. Mr. Kudin thought that the individual gave his rank as Hauptsturmfuhrer. The officer had dark hair which was pomaded as though he had just come from the barber.

[83]            After being interrogated by Fast, Mr. Kudin was taken to a prison in Zaporozhye which he thought was located on the corner of Chekista and Dzerzhinskiy streets. He described it as an SD prison. While he was there, he heard that the name of the Chief of the Prison was Link.    Link wore a trench coat over a uniform with SS insignia. He was a dishevelled looking man with a pointed face and red eyebrows. Mr. Kudin stayed at the SD prison briefly before being sent west, due to the advance of the Soviet troops. He stayed in Dachau until April 1945 when he was sent on a "death march" towards Nazi Germany. He was liberated while on this march.

[84]            I am unable to come to any conclusion about Jacob Fast's wartime activities on the basis of this evidence. Mrs. Sivodid described him as the Chief of the SD Prison and having blond hair. She also described the Chief of Prison as a man with red or reddish hair.                                    Mrs. Kopayevskaya said that Jacob Fast wore a uniform and carried a gun but she did not know what he did. She thought he might be a translator or a support soldier. Neither Mr. Motryev or Mr. Vasilenko spoke of Jacob Fast. Mr. Vasilenko identified a man called Links as the Chief of the SD Prison. Mr. Fomin could only say that the Prison Chief was a slim man with red or reddish hair.

[85]            Mr. Kudin spoke of an SS/SD officer with the rank, he thought, of Hauptsturmfuhrer. There has been no suggestion in the evidence that Mr. Fast was a regular member of the SS or SD. In the Statement of Claim the Minister concedes that local ethnic Germans were not able to become members of the SS/SD. All of the allegations against Mr. Fast are to the effect that he was a member of the local auxiliary. As we shall see, the documents upon which the Minister relies refer to a person who is employed by, or an employee of, the auxiliary police. There is nothing to suggest that Mr. Fast held a military rank such as Hauptsturmfuhrer. This is not to say that there was not an SS officer named Fast, but simply that there is no connection between that officer and the defendant in these proceedings.

[86]            I believe that the only conclusions which can be safely drawn is that the Chief of the SD Prison likely was a slim man with red hair. There is some evidence that a man called Jacob Fast worked for the German forces in some capacity, probably not as the Chief of Prison as alleged by Mrs. Sivodid but perhaps in a support capacity. The most likely person to have been the Chief of the Prison, on the basis of this evidence, is the man called Link or Links.

[87]            In his examination for discovery, Jacob Fast admitted that his brother Ivan was involved with the police (exhibit 155, Vol. 2, questions 254-256). To the extent that Mrs. Sivodid spoke of the Fast brothers, this is capable of corroborating that the Jacob Fast referred to by Mrs. Sivodid is the defendant in these proceedings.

[88]            The Minister relied quite heavily upon the document which came to be called the "sugar list", exhibit 24, to prove that Jacob Fast was employed by the SD, and to a lesser extent, that he was a senior member of the SD. The sugar list was a document put into evidence through              Dr. Black. It was illustrative of his evidence that the German occupation forces had a policy of preferential treatment for ethnic Germans (exhibit 2, page 58, footnote 154). The sugar list is a document dated December 19, 1942, with the heading "List of SD employees, City of Zaporozh'e". The first name on the list is "Fast, Yakov Yakovlevich" whose family size is shown as "6". The list is signed by "Fast"opposite the legend "Chief, Department II, SD:". The Minister argued that the fact that Jacob Fast's name appeared on the list was some evidence that Jacob Fast was not only associated with the SD but that he held a senior position since his name appeared first. The latter point strikes me as entirely speculative.

[89]               Based on the information contained in other documents whose authenticity I have accepted, Jacob Fast's family at that time consisted of his wife and four children. Consequently, this is some proof that the Yakov Fast referred to in exhibit 24 is the defendant in these proceedings and that he was an employee of the SD in Zaporozhye.

[90]            The Minister also relied upon exhibit 27 which is the census document referred to earlier in these reasons. In addition to the identifying information referred to earlier, the document also has a column in which the employment status of the individual is to be indicated. In the case of Jakob Yakovlevich Fast, whose name appears at line 193 of the document, the defendant, the notation in the employment column is "Political Department". Political Department could refer to any number of institutions, as one cannot assume that the police department was the only institution in Zaporozhye to have a political department. On the other hand, the fact that the auxiliary police force had a political department is not without significance. But, "the political department" does not describe an occupation but an employer, or place of employment. For example, at page 47 of his report, exhibit 2, Dr. Black says the following about the auxiliary police in Zaporozhye:

The German authorities established a housekeeping section within the department of police administration that was staffed by a manager, twelve office workers, eight garage workers, two bookkeepers and two typists.

[91]            Not every employee of the police department was a policeman. Nonetheless, the combination of exhibits 24 and 27 is capable of showing some association between Jacob Fast and the auxiliary police.

[92]            The evidence which I find most compelling on the issue of Jacob Fast's wartime activities is found in certain of the EWZ documents, exhibits 32, 33 and 35. As noted earlier, the EWZ was the agency charged with naturalizing Volksdeutsche or ethnic Germans. Exhibit 32 appears to be a form designed to record the applicant's employment history and financial status. The applicant is shown as Jakob Fast. The form bears the same identification number which appears on all the other EWZ documents pertaining to Jacob Fast, 782058. Mr. Fast's occupation is shown as "Driver". Mr. Fast is described in the form as having completed an eight month apprenticeship as driver in 1929. His skills in his main occupation are listed as "driving automobile". The second page contains the following information, reproduced earlier in these reasons:

Employment to Date

Name, location and type of business                 Nature of employment                           From       To

Fire Brigade                                                                Driver                                                          1930         1932

[illegible]                                                                                                                                           1932         1934

In various businesses                                             Driver                                                          1935         1941

With SD                                                     Interpreter                                                 1941         1943

[93]            Exhibit 33 is a form entitled "Application for Naturalization" in which the applicant is shown as Jakob Fast. The form requires the applicant to provide information with respect to a series of headings including "Military Service" where the following is recorded: "1932 - 34 in Soviet military, as driver; 8.X.1941 to present day, with SD". Exhibit 35 is another printed EWZ form with respect to Jakob Fast. In it, his occupation is listed as driver.

[94]            I have set out earlier in these reasons the grounds which satisfy me that the EWZ documents are authentic, and that they refer to the defendant Jacob Fast. I am satisfied that the EWZ documents also establish that the defendant Jacob Fast was employed in some capacity by the SD, most likely as interpreter or driver. Once again, I take the reference to the SD to be a reference to the political section of the auxiliary police of Zaporozhye.

[95]            The photo taken of Jacob Fast at the time of EWZ processing, exhibit 156, shows him in a military style uniform with collar tabs. No insignia of any kind are visible on the uniform. The uniform appears to be made of a heavier fabric, perhaps wool, and is a darker colour, though obviously not black.

[96]            The conclusion that Jacob Fast was employed by or associated with the SD is corroborated by the evidence of Mrs. Kopayevskaya and exhibits 24, the list of SD employees in Zaporozhye, and 27, the census data.

[97]            The evidence does not support the conclusion that Mr. Fast was the Head of the SD prison. In the EWZ documents, he described himself as being in a support position. Mrs. Kopayevskaya described him as wearing a uniform and carrying a gun but thought that he might be an interpreter or a "support soldier". The common factor in the descriptions of the prison chief is his red or fair hair. The photo which we have of Mr. Fast shows his hair to be dark and not fair.

[98]            In the end, it is not necessary to decide whether Mr. Fast was a policeman, an interpreter or a driver. The issue is not his complicity in war crimes. The Minister's Notice raises the issue of Mr. Fast's collaboration with the German occupation authorities, his association with the German sponsored indigenous auxiliary police, and his association with the German Security Police and Security Service (Sicherheitspolizei und SD). In my view, the evidence establishes his association with the political section of the auxiliary police in Zaporozhye, who were under the direct control of the German Security Police and Security Service (Sicherheitspolizei und SD). For my purposes, this amounts to proof of collaboration.

Jacob Fast's German Citizenship

[99]            The EWZ documents, and in particular exhibit 34, clearly establish that on January 21, 1944, Jacob Fast acquired German citizenship "through naturalization, effective on delivery of this certificate". Exhibit 38 is an order that the naturalization certificate be issued. It contains, at its foot, the following entry "I received my naturalization certificate today. KULM, 21.1.1944" followed by the signature of Jakob Fast. While no evidence of handwriting was led, I am satisfied that the signature is that of the defendant Jakob Fast on the basis of my conclusion that this series of EWZ documents is in relation to him. While it is theoretically possible for someone else to have signed the document, the signature, on its face, appears to be his and it is clear that the documents were in relation to him.    This is sufficient to shift the tactical burden of proof to Mr. Fast. If it was not his signature, he had the opportunity to say so.

JACOB FAST'S IMMIGRATION TO CANADA

The Applicable Legislation

[100]        Having established that Mr. Fast was associated with the auxiliary police during the war years and that he acquired German citizenship, it is now necessary to examine the process by which he was admitted to Canada. To succeed the Minister must show that Mr. Fast misrepresented or knowingly concealed his wartime activities or his German citizenship in the course of applying to immigrate to Canada. The departmental records relating to Mr. Fast's immigration were destroyed as part of a government initiative to shed unnecessary records. Consequently, the original documentary record as to what Mr. Fast said, or failed to say, about himself no longer exists. As a result, the Minister can only succeed by showing that there existed at the material time a uniform practice of inquiring into wartime activities and citizenship such that Mr. Fast would not have been admitted to Canada if he had truthfully answered the questions put to him.

[101]        There is a preliminary issue as to the legislation which governs these proceedings.                 Mr. Fast applied for citizenship in 1952 and was granted it in 1954. As noted above, the Minister's Notice limits the scope of this inquiry to events which occurred in 1947. Consequently, counsel for Mr. Fast argued that the Minister cannot succeed as events occurring in 1952 are outside the scope of the Minister's Notice. The Minister responds by pointing to subsection 10(2) of the Citizenship Act, ("the present Act") which provides that a person is deemed to have acquired citizenship by false representation or knowing concealment of material circumstances if the person acquired landing in Canada by those means:

[102]        If subsection 10(2) of the Act applies to these proceedings, the Minister can succeed by showing misrepresentation or concealment of material circumstances in the process by which          Mr. Fast gained admission to Canada. Otherwise, the terms of the Notice preclude the making of a report to the Governor in Council on the basis of events which occurred after 1947.

[103]        Counsel for Mr. Fast responds by arguing that section 10 of the present Act refers to a person who has "obtained, retained, renounced or resumed citizenship under this Act" whereas Mr. Fast acquired citizenship under a prior Act, the Citizenship Act, S.C. 1946, c. 15 ("the former Act"). Consequently, the presumption in subsection 10(2) only applies to those whose citizenship was acquired after the coming into force of the present Act in 1976. In any event, counsel for Mr. Fast relies upon subsection 44(c) of the Interpretation Act, R.S.C. 1985, c. I-21, as authority for the proposition that Mr. Fast has the acquired right to have his right to citizenship revoked only in accordance with the terms of the former Act:

[104]        Counsel for the Minister takes the position that subsection 10(2) of the present Act is procedural only, and argues that subsection 44(d) of the Interpretation Act requires that the procedure under the present Act be utilized even with respect to rights acquired under the former Act:

[105]        Counsel for the Minister relies upon the cases of Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 andCanada (Minister of Citizenship and Immigration) v. Luitjens, [1989] 2 F.C. 125, at p. 131, as authorities for the proposition that subsection 10(2) of the present Act is procedural and therefore applies to these proceedings.

[106]        It appears to me that the issue is not whether subsection 10(2) is available to the Minister in these proceedings, but whether the present Act permits these proceedings at all. The argument that Mr. Fast's rights were fixed by the former Act and can only be revoked under that Act is answered by subsection 42(1) of the Interpretation Act which provides that:

[107]        I take this to mean that Parliament can interfere with rights conferred under one statute by subsequent legislation. As a result, nothing would prevent Parliament from enacting legislation which alters the terms on which citizenship is revoked. If there is a limitation, it is the limitation imposed by the presumption against giving legislation retroactive effect. Mr. Fast cannot lose his citizenship today because he does not meet a condition which he was not required to meet when he became a citizen in 1954. But desisting from false representations and knowing concealment of material facts is not a condition of eligibility. Nor is authorizing revocation of citizenship as a consequence of such false representations the ex post facto "criminalization" of behaviour which was innocent when it occurred. The appropriate analysis is that employed by Noël J. in Canada (Minister of Citizenship and Immigration) v. Dueck , [1998] 2 F.C. 614 at para. 43:

The taking back by the state of a privilege on the ground that it was originally acquired by fraud based on a remedy provided by statute for that sole purpose is not punishment. The remedy involved is no more punitive than would be, for instance, the one pursued by an insurance company which sues an insured to obtain the cancellation of a policy on the ground that it was originally obtained by fraud, misrepresentation, or as a result of the willful omission of a material fact. In both cases, the remedy is limited to taking back that to which there was never any entitlement.

[108]        Mr. Fast had no greater right to obtain entry to Canada by false representation or by knowingly concealing material circumstances than he did to obtain citizenship by those means. And since these are not criminal proceedings, it is not a question of imposing the penalty in force at the time the offence was created. As Noël J. put it, it is simply a case of taking back a privilege obtained by unlawful means.

[109]        Consequently the Minister can rely upon subsection 10(2) of the present Act, if the Minister can rely upon the present Act at all. Her right to do so is not evident since it is not obvious that Mr. Fast is a person who "obtained, retained, renounced or resumed citizenship under this Act", i.e the present Act. On its face therefore, the Act appears to limit the Minister's right to initiate revocation proceedings to those cases where citizenship was acquired under the present Act, which is not the case with Mr. Fast. As a practical matter, the only category of cases likely to be affected, if this argument is accepted, are the cases of unlawfully obtained citizenship, since the other categories contemplated by the section are all matters which are more likely to be contemporaneous. However, the obtaining of citizenship is more likely to have occurred during the currency of a prior version of the Citizenship Act, particularly in the case of persons whose activities during the Second World War are concerned. So the question becomes whether Parliament intended to put an end to citizenship revocation proceedings for those persons who obtained their citizenship by false presentations or concealment prior to the coming into force of the present Act. There is no evidence before me as to Parliament's intention in enacting this section, but I note the views of the Supreme Court of Canada, as expressed in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, where the issue was whether revocation proceedings against certain defendants as a result of misrepresenting their wartime activities should be stayed (at para. 109):

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

[110]        While this was written in 1997, long after the passage of the present Act, it shows nonetheless the importance attached to proceedings of the present kind.

[111]        How does one construe the words "under this Act" where they appear in section 10(1) of the Act? The construction urged by counsel for Mr. Fast is that the words should be read as words of limitation in the sense that revocation proceedings may be taken against persons who fraudulently obtained citizenship "under this Act, the Citizenship Act as presently enacted". Is it reasonable to believe that in enacting this legislation Parliament intended to grant an amnesty to all those who may have acquired citizenship by misrepresentation or concealment prior to the enactment of the present legislation in 1976? If this were so, it would put into doubt all revocation proceedings undertaken to date with respect to persons whose activities in the course of the Second World War was in question.

[112]        This argument was considered and rejected in Canada (Minister of Citizenship and Immigration) v. Odynsky, [2001] F.C.J. No. 286. After observing that every enactment of the Citizenship Act since 1946 contained a provision which allowed for revocation of citizenship obtained by misrepresentation or concealment, Mr. Justice Mackay said as follows:

... I do not share the perception of the defendant that s-s.10(1) was in essence a substantively new process, introduced by the revision in the mid-1970's. Rather, that statute continued the process under the 1970, 1952 and 1946 Acts, with slight but significant variations.

Thus, in my view, the words "under this Act" in s-s. 10(1) refer to the Citizenship Act in a generic sense, that is, to both the predecessor statutes as well as the current Act. They do not merely refer to the current Act. ... The application of s-s. 10(1), in my opinion, is not restricted to persons who acquired citizenship after 1976, and Parliament could not have intended that the revocation process only apply to those acquiring citizenship after the Act came into force in 1976. Indeed, from the first Citizenship Act, enacted in 1946 succeeding statutes have provided for discretion in the Governor in Council to revoke citizenship on the recommendation of the Minister where there has been false representation, fraud or concealment of material circumstances in obtaining citizenship.

[113]        I am persuaded by my learned colleague's reasoning and find that the expression "under this Act" where it appears in subsection 10(1) of the present Act must be interpreted as "under this Act, the Citizenship Act, as enacted from time to time". Such an interpretation is consistent with the spirit of the present Act and all those versions of the Citizenship Act which have preceded it.

Security Screening of Immigrants

[114]        It is now necessary to examine the process by which immigrants to Canada were admitted to Canada in the period following the Second World War. Canada opened its doors to large numbers of immigrants following the First World War. But the economic conditions which prevailed during the Great Depression were not conducive to the reception of immigrants so that immigration to Canada became very tightly circumscribed. After the Second World War, Canada once again began to receive immigrants. The process by which that policy was implemented is at the heart of the questions which I am called upon to decide.

[115]        The legal framework governing the admission of immigrants to Canada was created by means of Orders in Council. Order in Council P.C. 695, effective March 18, 1931, effectively prohibited all immigration to Canada except for certain narrow classes. The Order in Council recites that it is made "having regard to the unemployment conditions now temporarily existing in Canada", i.e. in the course of the Great Depression. Following its amendment by P.C. 5024 dated June 30, 1944, P.C. 695 allowed the immigration officer in Charge to land in Canada only British subjects, American citizens having the means to maintain themselves, the wife or child under 18 years of age of a person lawfully admitted to and resident of Canada who has the means to maintain them, an agriculturalist "having sufficient means to farm in Canada", the fiancé of a legal resident, and an alien who has served in, and been honourably discharged from, the Canadian Armed Forces. As can be seen, this is a very narrow policy. For various reasons detailed in Dr. Avery's report (exhibit 56), at pages 20 to 31, government policy following the war was in the direction of liberalizing immigration, though in a tightly controlled fashion.

[116]        This restrictive policy was opened up in favour of certain close relatives of legal residents of Canada by P.C. 2071, dated May 28, 1946, which added a new category to P.C. 695 namely:

The father or mother, the unmarried son or daughter eighteen years of age or over, the unmarried brother or sister, the orphan nephew or niece under sixteen years of age, of any person legally admitted to and resident in Canada, who is in a position to receive and care for such relatives. The term "orphan" used in this clause means a child bereaved of both parents.

[117]        The basis of admission to Canada for these persons was their relationship with a person already legally resident in Canada. The basis for admission was broadened again in January 1947 by the promulgation of P.C. 371 which consolidated the classes of relatives whose entry was permitted by P.C. 2071 and those previously eligible for admission under P.C. 695 into one group described as follows:

                                                                           . . .

3. The wife, unmarried son, daughter, brother or sister, the father or mother, the widowed daughter or sister with or without unmarried children under the age of eighteen years of age, the orphan nephew or niece under 18 years of age of any person legally admitted ...

[118]        P.C. 371 also broadened the occupational categories eligible for admission to Canada as follows:

                                                                           . . .

4(a) An agriculturalist having sufficient means to farm in Canada.

(b) An agriculturalist entering Canada to farm, when destined to a father, father-in-law, son-in-law, brother, brother-in-law, uncle or nephew engaged in agriculture as his principal occupation who is in a position to receive such immigrant and establish him on a farm.

(c) a farm labourer entering Canada to engage in assured farm employment.

(d) A person experienced in mining, lumbering, or logging entering Canada to engage in assured employment in any one of such industries.

[119]        The relationship categories were broadened again when P.C. 695 was amended once more by P.C. 1734, dated May 1, 1947, which substituted the following for paragraph 3 cited above:

                                                                           . . .

3. The husband or wife, the son, daughter, brother or sister, together with husband or wife and unmarried children if any; the father or mother; the orphan nephew or niece under 21 years of age; of any person legally resident in Canada ...

[120]        Another factor relevant to the law of immigration as it stood at the time of Mr. Fast's immigration to Canada is P.C. 1373, dated April 9, 1946, which prohibited the entry or landing of enemy aliens, unless they could prove that they were opposed to an enemy government. A citizen of Germany would have been considered an enemy alien at that time.

[121]        While these provisions dealt with immigration, they did not address the situation of displaced persons who crowded the refugee camps of Europe and who were dependent upon the international community for their care. Canada addressed their immigration to Canada via a series of instruments, commencing with P.C. 2180, dated June 6, 1947, reproduced below:

The Committee of the Privy Council have had before them a report dated 28^th May 1947, from the Acting Minister of Mines and Resources, [then the Minister responsible for immigration] representing:

That there are in the refugee camps of Europe many thousands of displaced persons who have been driven from their homes by the circumstances of war;

That extended delays have occurred in the organization and effective intervention of the International Refugee Organization which was designed to bring relief to these distressed persons;

That it is the desire of the Canadian Government to contribute to the amelioration of the circumstances herein described and to do its full share to assist in the discovery a permanent solution for the problem of the displaced persons.

The Committee, therefore, on the recommendation of the Acting Minister of Mines and Resources (concurred in by the Secretary of State for External Affairs and the Minister of Labour) advise:

That as a contribution towards the solution of this problem and notwithstanding anything to the contrary contained in Order in Council P.C. 695 dated the 21^st of March, 1931, authority be granted for the immediate admission to Canada of five thousand individuals from the displaced persons camps in Europe;

That the Minister of Mines and Resources be directed to make provisions through the Immigration Branch and through the utilization of whatever assistance may be required and may be made available to him by the Minister of Labour, for the selection and transportation to Canada of the five thousand displaced persons aforesaid;

That the Minister of Labour be directed to arrange, with whatever assistance may be required and may be made available to him by the Minister of Mines and Resources, for the reception of the displaced persons at the port or ports of entry into Canada, and for their distribution throughout the country; and

That expenses incurred by the Minister of Mines and Resources and by the Minister of Labour in the execution of these directives be charged against the appropriate votes of the Departments concerned or, if these should prove inadequate, against supplementary funds to be provided for this purpose.

Emphasis added.

[122]        The number of persons to be admitted to Canada from the camps was increased to ten thousand by P.C. 2856, dated July 18, 1947. The admission of an additional ten thousand displaced persons was authorized by P.C. 3926, dated October 1, 1947. Subsequent Orders in Council authorized further increases until, by the time P.C. 3721 was promulgated on October 6, 1948, the admission of forty thousand displaced persons had been authorized.

[123]        The decision of the Canadian Government to allow significant immigration to Canada was accompanied by the creation of an interdepartmental committee to study and report on security matters, including the screening of prospective immigrants to Canada. In general terms, the Security Panel proposed security policy for the Cabinet's consideration, and the Cabinet made various decisions based upon those policy recommendations. The other important institutional relationship which influenced the development of practices in the field was that between the Immigration Branch and the R.C.M.P. At that time, the Immigration Branch was part of the Department of Mines and Natural Resources. The Minister responsible for the Department through most of the period of interest was James A. Glen and the Director of the Branch was Mr. A.L. Jolliffe. Commissioner Woods headed the R.C.M.P. at the time, assisted by Assistant Commissioner Nicholson, Director, Criminal Investigation (D.C.I.), and Inspector Parsons who was then responsible for the Special Branch.

[124]        On July 8, 1946, the Security Panel acknowledged the possibility "under existing regulations of undesirable aliens entering Canada and the desirability of adopting some form of screening". It recommended that security control through United Kingdom facilities in Europe would provide reasonable temporary facilities. It also proposed that the Minister be given the authority to refuse entry to Canada to "undesirables" on security grounds (exhibit 106). The appropriate legislative amendment was thought to be too difficult to draft and so, in August 1946, the Cabinet decided that the question of the exclusion of undesirables be dealt with "by other means", i.e. by administrative measures (exhibit 110). As for the proposal for screening, the Security Panel concluded that security screening should be done "at source" and considered that members of the Royal Canadian Mounted Police (R.C.M.P.) might be added to immigration teams for that purpose (exhibit 111).

[125]        Following consultation between the Immigration Branch and the R.C.M.P., it was decided to dispatch an R.C.M.P. member, Staff Sergeant (S/Sgt.) Hinton to London, England, to arrange for the screening through British sources of "applications for relatives coming within the provisions of P.C. 695". S/Sgt. Hinton would be provided with a list of applications already in hand which contained relevant personal data. After inquiries with various agencies, S/Sgt. Hinton would indicate on the list the security status of each applicant and return the list to the Immigration Branch which would process only those names marked "Clear", meaning no security concerns.

[126]        The procedure for future applications was different. Applicants to sponsor relatives for immigration to Canada would complete a Form 55 (also known as an IMM 55) one copy of which would be forwarded by the Immigration Branch to R.C.M.P. Headquarters where it would be checked against the records of the force, as regards the character of the sponsor. If no security issues were noted, the form would be returned to the Immigration Branch who would forward it to S/Sgt. Hinton via the diplomatic bag. S/Sgt. Hinton would pursue his inquiries and indicate the result on the form, i.e. "Clear", "Not passed", "Hold for investigation". The form would then be returned to the Immigration Branch, with a report to R.C.M.P. Headquarters of rejected applications (exhibit 66).

[127]        In keeping with this understanding, S/Sgt. Hinton was dispatched to London in October 1946 under the following orders:

                                                                           . . .

5. Your duties will be to check the names of any potential Canadian immigrants passed to you by the Immigration Branch, Ottawa, through External Affairs. These names will be checked against records available at the British Passport Control Department of the Foreign Office, the Special Branch of the Metropolitan Police, and against any other records which may from time to time be opened to you, such as the Security Control Section, [?].

6. Names of potential immigrants will be supplied to you on individual application forms which have first been subject to a check at this headquarters. The result of this check will be noted on the form itself. Such forms will be dispatched by the Immigration Branch, Ottawa, to External Affairs, and will then be transmitted by diplomatic bag to London.

7. When you find that an applicant has a record which indicates it would be undesirable to admit him to Canada, you will mark the form "not clear for security" and return it to the Immigration Branch, Ottawa, through the same channels, i.e. the High Commissioner's office for transmission by diplomatic bag.

8. Forms on applicants having no unfavourable record will be marked "clear for security" and dispatched to the Immigration Branch, Ottawa, in the same manner.

                                                                           . . .

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

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

(Exhibit 65)

[128]        The procedures to be followed by immigration officers were set out in a document entitled "Canadian Immigration Regulations and Procedures" which is dated December 7, 1946 (exhibit 47):

IV. Application form for Immigration Visa

                                                                           . . .

(d) In cases that have been approved on Form 55, it will not be necessary to have proposed immigrant fill in application for visa - the visa officer will merely place his visa stamp on this form with the same notation as those placed in the passport, as he retains this form as his permanent record.

                                                                           . . .

VI.     Provision for entry to Canada of immigrants is contained in Order in Council P.C. 695 ...

(a) Procedure: It is proposed to make the procedure as simple as possible.    With regard to alien immigrants who are eligible for admission under present regulations all categories, except one, call for investigation in Canada and in the vast majority of cases application for entry originates in Canada through relatives here. A form has been prepared for use in conjunction with such applications - Form 55. This form will be used for a three-fold purpose; investigation of settlement in Canada, security screening and in lieu of the letter of conditional entry formerly used.

(b) When settlement arrangements have been investigated and found satisfactory and a case has been passed for security, the District Superintendent in whose district the application originated, will make any comments that will be of help to the visa officer in identifying immigrant and verifying that relationship to applicant is as represented. These will be placed in the space for remarks on the back of Form 55 and will end with the statement that settlement arrangements have been found to be satisfactory. The Superintendent will place his signature and date at the end of these remarks and superimpose office seal over his signature. Form 55, thus approved, will be dispatched Overseas to the Canadian Visa Officer where the immigrant will apply for visa and be medically examined.

                                                                           . . .

(e) At the same time that approved Form 55 is dispatched Overseas, the District Superintendent will write the applicant in Canada. If the proposed immigrant is residing in a country where there are facilities for granting visas, the letter will be along the following lines:

" ...this is to advise that settlement arrangements for the reception of the above named are considered satisfactory and it will be in order for them (him or her) to apply in person to the (Canadian immigration officer, the Canadian Embassy, Legation or Consulate) at ............. for examination and visa. Provided that they (he or she) are of good character, in possession of travel document establishing identity, pas medical examination and can otherwise comply with the provisions of the Canadian Immigration Regulation, the will granted visa for Canada."

"This letter should be sent to your mother (or etc.) for presentation to the Canadian Visa Officer at .........."

                                                                           . . .

11. All proposed immigrants coming with sections 3 (a) and 5 of P.C. 695 will be screened through the R.C.M.P., Ottawa for security purposes. There may, however, be special cases where instructions regarding security will have to be transmitted to the visa officer. Wives and children coming within section 3 of P.C. 695 will not require a security screening.

                                                                           . . .

(j) The one class of immigrant not included in the foregoing procedure comes within section 4 of P.C. 696 [sic] - agriculturalists with sufficient means to begin farming in Canada, but as the machinery for the security screening of class has not yet been determined and arrangement for reception and placement of agriculturalists have not been worked out or organized, it is thought best to postpone their coming forward for the time being and visas to this class should be withheld and the case referred to the Director of Immigration, Ottawa, with all the particulars available.

[129]        Exhibit 47 also deals with the issuance of visas:

(a) Immigrant Visas: In the space following the word "Authority" Ottawa file number to be inserted and in cases where there is no Ottawa file number, such as those that are not referred to Ottawa but Visa is granted under P.C. 695, Section showing category under which visa is issued to be inserted, e.g. P.C. 695 - 3, 4, 5 or as the case may be.

(b) In the case of an immigrant who is a displaced person, the letters "DP" are to be placed after Ottawa file number.

(c) In case where visa is granted on strength of approval on Form 55, Ottawa file number will be found in the upper right hand corner on front of Form 55. This is the number that is to be quoted as authority.

[130]        It is significant that the applications being dealt with at this point in time are with respect to potential immigrants from all of Europe. Insofar as existing applications were concerned, S/Sgt. Hinton was directed to first consider applications for candidates located in Norway, Denmark, Holland, Belgium, France and Greece. Germany is conspicuously absent from this list. It is also important to note that the bulk of applications being processed are applications originating with sponsors in Canada for the immigration of their relatives in Europe. Finally, one class of immigrants is not to be processed at this time, applicants coming with paragraph 4 of P.C. 695, agriculturalists.

[131]        While the United Nations Relief and Rehabilitation Agency (U.N.R.R.A.), and subsequently, the International Refugee Organization (I.R.O.), were responsible for the care of displaced persons in Europe, the I.G.C.R.'s mission was to assist in the resettlement of these displaced persons. As these procedures were being developed, a representative of the I.G.C.R., Wing Commander (W/C) Innes, visited Ottawa to discuss how his organization might assist in facilitating the movement of refugees in camps in Europe to their relatives in Canada. Certain procedures were agreed to at that time covering the movement of sponsored applications for relatives in Germany, Austria and Italy. In essence, IMM 55's for these applicants would still be cleared through R.C.M.P. Headquarters in Ottawa, but would not be forwarded to S/Sgt. Hinton in London. Once an application was cleared by Headquarters, the information on the form would be used to compile a list of potential immigrants which would be forwarded to the I.G.C.R. which would set about the process of locating the candidates in refugee camps or elsewhere. Once settlement arrangements in Canada had been investigated and found satisfactory, the Immigration Branch would prepare another list indicating which applications had been approved and the status of arrangements of payment for the immigrants' passage. The I.G.C.R. would do a preliminary security and medical screening of the approved candidates and would assemble them for processing by Canadian immigration teams.

[132]        The question of security screening was discussed extensively. The Minutes of W/C Innes meeting with Canadian official, exhibit 70, record the following:

The question of security screening was thoroughly discussed and it was agreed that the most satisfactory method would be to have a member of the R.C.M.P. work with the Head Office of the I.G.C.R. in Germany, Austria and Italy - Inspector Parsons to recommend to his Chief that a man be sent to England in the immediate future, Mr Innes to make all necessary arrangements for his R.C.M.P. representative to work with the I.G.C.R. and to proceed to their Head Office in Germany.

[133]        In fact, Sergeant Major Murray of the R.C.M.P. was dispatched to Europe and arrived in London on January 17, 1947 (exhibit 78).

[134]        These arrangements were communicated to S/Sgt. Hinton by letter dated December 27, 1946 (exhibit 71), from Assistant Commissioner Nicholson:

                                                                           . . .

2. A further meeting was held in the office of the Director of Immigration at which time W/CR Innes, Assistant Director of the Inter-Governmental Committee on Refugees was present when the following points were discussed and decided upon for the movement from Austria, Germany and Italy of displaced persons eligible for admission to Canada under existing regulations.

(a) For the moment, only those persons coming within this category, whose immigration is being sponsored by relatives in Canada will be considered. Lists of the immigrants in question will go forward to the London England office of the I.G.C.R. direct from immigration, who, in turn will distribute such lists to their field office in Germany only for the moment for the purpose of locating the immigrant and having the necessary security check conducted by our representative. In this latter connection the I.G.C.R. will arrange that the member of the force detailed for this duty and posted to the I.G.C.R. office in Europe will be put in touch with all authorities and records available in the field to enable him to carry out the security vetting measures.

(b) Forms 55 will be forwarded to these Headquarters by the Immigration Department for the usual security check on the applicant. After security check has been completed the forms will be returned to the Immigration Department, to be handled as outlined in paragraph (a) above.

(c) When settlement arrangements in Canada are considered satisfactory by the Immigration Department here, they will notify the I.G.C.R. in London of the fact, also that a security check has been made on the applicant and that all conditions are satisfactory for the admission of the immigrant.

(d) As soon as this notification has been received by the I.G.C.R. they will have all immigrants congregated at some centrally located point, dependent of course, on the fact that the immigrant has been cleared for security, notifying the immigration department of the location of such congregation point. The Immigration Department, on receiving this advice will send a team forward to Europe to conduct the necessary interrogation and medical check; issue visas and arrange for the transportation of the immigrants to Canada.

3. ... It was suggested by W/C Innes and concurred in here that the member of this Force seized with the responsibility of security clearance should proceed without delay to the central office of the I.G.C.R. for Germany and Austria, later to Italy and thence to France.

4. As stated, for the present only those immigrants or displaced persons will be dealt with whose entry to Canada is being sponsored from this end, but it was pointed out by W/C Innes that there a great number of persons claiming relatives in Canada in the countries mentioned but whose relatives have not as yet come forward to sponsor their emigration from Europe. ...

5. It is proposed to detail A/S/M Murray J. for this particular work ...

6. All material presently in your hands dealing with persons resident in Germany and Austria, therefore, should be turned over to A/S/M/ Murray. When dealing with such lists, Murray should establish additionally to the security end the fact as to whether or not any of the persons appearing thereon come within the category of displaced persons or otherwise. The displaced persons should be handled through the I.G.C.R. and the remainder, who are not displaced persons referred back to you after security check has been made for subsequent transmission to the Immigration Department here.

Emphasis added.

[135]        At this point, December 1946, the situation is that applications originating in Canada for the immigration of persons falling within the classes of immigrants authorized by P.C. 695 were sent to S/Sgt. Hinton for security vetting except if the potential immigrant was a displaced person residing in Germany, Austria or Italy, who came within the mandate of the I.G.C.R. Those applications were forwarded to S/M Murray in Germany who screened the potential immigrants for security, in collaboration with Canadian immigration teams. The instructions provided to S/Sgt. Hinton suggest that S/M Murray was to assess not only whether the persons whose names he was provided were cleared for security but also whether they were displaced persons. The applications of those who were displaced persons were to be handled through the I.G.C.R. while the applications of the others were to be passed on to S/Sgt. Hinton. This suggests that S/M Murray interviewed all potential applicants who were located in Germany.

[136]        It should be noted that I.G.C.R.'s processing of candidates included the I.G.C.R.'s own security screening, conducted by military intelligence (exhibit 77). I.G.C.R.'s policies prohibited the organization from rendering assistance to German citizens as well as to anyone connected with the Nazi organization or collaborators (exhibit 56, at p. 45 to 51). Consequently, the screening carried out by S/M Murray was a second screening exercise. The question as to why a second screening was thought to be necessary was not addressed in the evidence or in the argument.

[137]        The Canadian Government's decision to expand the categories of admissible immigrants, as reflected in P.C. 371, promulgated January 30, 1947, led to a review of security procedures by the Security Panel, at the request of Cabinet. The problem was the seeming inability of the screening process to keep up with the expected increase in volume of immigration. On February 4, 1947, the Security Panel presented the Cabinet with two alternatives:

                                                                           . . .

6. a) To modify present procedures to permit applicants, otherwise acceptable, to enter without screening, with the exception of those originating in the countries of Eastern Europe - present facilities of the R.C.M. Police to be concentrated on the screening of applicants from those areas.

This is probably the more desirable procedure from a security standpoint. Its adoption, however, would retard immigration from the areas in question, and would involve notifying relatives of the consequent delays and reasons therefor. This would, in turn, be tantamount to a statement of government policy that immigration from certain specified countries would be on a restricted basis.

b) To continue the present system of screening, but only to the extent that it would not interfere with the entry into Canada of immigrants otherwise acceptable - the question as to who would be selected for screening being left to be discretion of the R.C.M. Police.

This would amount to a system of 'spot' checking which would at the most provide for examination of 20% of the expected immigration. While this is not desirable from a security standpoint, it would permit full implementation of the government's decision to extend immigration, and at the same time continue the frame-work of a screening service which could be expanded if thought desirable at a later date.

7. In the interests of good security, alternative (a) is to be preferred, but it is realized that there are other important considerations which might render it unsuitable for practical application and, if this is so, alternative (b) is recommended rather than abandoning security screening altogether.

(Exhibit 134)

[138]        Cabinet chose alternative (b) which required adjustments to be made in the procedures to be followed. It is also significant that upon the coming into effect of P.C. 371, in January 1947, there was now a broad category of persons eligible for admission to Canada on the basis of occupation rather than on the basis of relationship. While P.C. 695 had provided for the admission of "an agriculturalist having sufficient means to farm in Canada" since 1944 at the latest, the amendments introduced by P.C. 371 added agriculturalists sponsored by relatives, farm labourers, loggers, miners and lumbermen going to assured employment. Consequently, any new arrangement had to take into account not only the anticipated additional volume but also the new categories of applicants.

[139]        The new procedures were agreed upon between the Immigration Branch and the R.C.M.P. and were described in a letter from Mr. Jolliffe to Commissioner Woods, dated February 17, 1947 (exhibit 79):

1. That we [Immigration Branch] would continue to submit to your Department copies of all applications arising in Canada for the admission of alien immigrants, the applicants here to be immediately checked through your headquarter records and those with unsatisfactory records to be immediately reported to the Commissioner of Immigration. This procedure is the same as now being. [sic] It is understood that your Department will continue to transmit these applications overseas for vetting and that if an unsatisfactory record is established we are to be immediately informed so as to prevent the admission of the prospective immigrant if time permits.

2. We will discontinue holding up cases for clearance from your Department in all cases other than those described in No. 3 below. This means that following the immigration investigation of the individual case approval will be given unless a report is received from your Department with regard to the applicant that would warrant refusal of the application.

3. All applications arising in Canada for the admission of relatives from Germany, Austria, and Italy other than those relating to the wife and unmarried children under eighteen years of age of a legal resident of Canada will be withheld pending a clearance from your Department which will only be given after an enquiry overseas. The case of displaced persons in Germany, Austria and Italy who are admissible to Canada on a relationship basis are being dealt with differently, they are being screened by officers of your Department sent to Europe for that specific purpose.

4. With regard to alien immigrants admissible on grounds of occupation other than relationship, such as agriculturalists, arrangements will be made with the transportation company who select agricultural families, to furnish lists of the prospective immigrants giving the following information regarding each person:

1. Full name, place of birth, age and exact date of birth if this information is available.

2. Citizenship.

3. Present address in full including street and number.

It will be necessary to work out details with regard to the [illegible]...ssion and delivery of these lists and with [regard?] to the furnishing of advance information [regarding?] other classes of labour that may be admitted under the regulations.

[140]        Exhibit 79 contains, for the first time, references to persons admissible on grounds of occupation as opposed to relationship, no doubt as a result of the expansion of categories admissible persons in P.C. 371. There are significant variations from the procedures which had previously been established. All applications arising in Canada will continue to be referred to R.C.M.P. Headquarters for security clearance of the sponsor. Applications will continue to be sent overseas for vetting but, with one exception, the processing of the application will not be held up pending receipt of the results of the security check. Visas will be granted on the merits unless a positive direction is received from the R.C.M.P. as to a security concern.

[141]        The exception to the new procedure was the case of applications arising in Canada for admission of relatives residing in Germany, Austria and Italy which were to be held up pending receipt of security clearance which would only be given "after enquiry overseas". Displaced persons in those countries who were admissible on a relationship basis were to continue to be screened by the R.C.M.P. members dispatched to Europe for that purpose. One notes here a distinction in the treatment of sponsored relatives living in Germany. Those who were not displaced persons were to be dealt with differently than those who were, the latter being the responsibility of R.C.M.P. members dispatched to Germany to provide security screening. The conclusion which I draw from this is that sponsored relatives living in Germany, who were not displaced persons, would continue to be screened by S/Sgt. Hinton through his sources in the United Kingdom.

[142]        A further observation with respect to exhibit 79, reproduced above, is that paragraph 3 deals with all possible cases of sponsored relatives, i.e. those who are displaced persons and those who are not. Paragraph 4 deals with the other class of admissible persons, those admissible on the basis of occupation. With regard to the latter, no distinction is drawn between those who are displaced persons and those who are not.

[143]        The revised arrangements were communicated to S/Sgt. Hinton by Inspector Parsons in a letter dated April 10, 1947 (exhibit 82), portions of which are reproduced below:

                                                                           . . .

4. While it is understood that Immigrants will not be held up pending security clearance, there is one exception, i.e. in cases of those persons residing in Germany, Austria, and Italy, previously enemy territory. All applications arising for the admission of relatives from these countries other than those relating to the wives and unmarried children under 18 years of age of a legal resident of Canada, will be withheld pending a clearance from this Force. The case of displaced persons in those countries who are admissible to Canada on a relationship basis do not concern you as they are being dealt with through the I.G.C.R.

5. With regard to alien immigrants admissible on grounds of occupation rather than relationship, such as agriculturalists, arrangements are being made with the transportation companies who select the families, to furnish lists of the prospective immigrants, giving as much information a possible as to name, age and date of birth, present address, etc, directly to you through the Canadian missions abroad. Where anything of a derogatory nature is turned up in these cases notification should immediately be forwarded to these Headquarters advising that the person referred to is an agriculturalist and has been notified to you by the C.P.R. or C.N.R. Colonization Branch and we in turn will endeavour to have the issuance of a visa withheld through the Immigration Department. Where the agriculturalist is considered clear for security it will also be necessary to advise us for future reference. The degree of urgency of course, in the latter instance will not be as great.

6. In this respect we are endeavouring to have the Colonization Branches of the Railways adopt some form for the forwarding of information concerning agriculturalists to you similar to that printed at these Headquarters at your request. We do not know what success will be obtained in this but will pursue the matter through the Immigration Department.

[144]        The actual operations in the field are reflected in the reports filed by S/Sgt. Hinton and S/M Murray. On April 1, 1947, S/M Murray reported to Assistant Commissioner Nicholson as follows (exhibit 81):

                                                                           . . .

7. The following procedure is being followed by the Immigration teams. Only persons who are listed on the Canadian Close Relative Scheme and for whom Form 55 has been forwarded to Germany, providing they come within the I.G.C.R. Mandate are being dealt with at this time. In view of this, it was not deemed advisable to carry on screening of persons who did not come within the above limits as it is considered a waste of effort. Therefor as far as I am concerned and Sgt. Syron in the U.S. Zone, only persons collected in camps are being screened for security.

8. All D.P.'s being presented for screening are in possession of a DP card showing the date on which they have been screened by the UNRA teams certifying that they are genuine displaced persons and are entitled to the assistance both of UNRRA and the I.G.C.R. Until such times as they can produce this card they are not considered.

9. Since commencing the screening of these persons I find that very little record of their past history is available other than the dates on which they were removed from their own country and none whatever concerning their political background. Some of these D.P.'s are at present living on the German Economy and are not resident in the UNRRA or P.W. & D.P.'s [Prisoner of War & Displaced Persons ?] Camps. These are persons who have been able to find employment outside camps.

10. In screening these persons in the British Zone I have been forced to confine my inquiries regarding these people to checking with the M.I. Division [Military Intelligence] and P.W. & D.P.'s Headquarters at Lemgo. I have not considered having these persons checked through the Nazi records in Berlin as this takes anything from 6 weeks to two months before a reply can be obtained. In discussing this angle with S/Sgt Hinton, it is thought that it may be advisable to have the Berlin records checked later with a view to making sure that none of these persons have at one time been employed by the Germans on a voluntary basis. By doing so at the moment would entail a considerable delay in the work of the Immigration teams. As far as I have been able to ascertain, there will not be any record of any genuine D.P.'s held in Berlin. I may add here that since the end of the war the concentration camps and all other camps where D.P.'s are held pending their disposal have been fairly well screened for collaborators and others who may be on the wanted lists.

Emphasis added.

[145]        The expression "Canadian Close Relative Scheme" was coined by the I.G.C.R. The December 4, 1946 Ottawa meeting attended by W/C Innes of the I.G.C.R. was, according to the minutes, a meeting in relation to "the movement from Germany, Austria and Italy of displaced persons eligible for admission to Canada under existing Regulations". Just over one month later, on January 13, 1947, General Lush, the Assistant Director of the I.G.C.R. described the arrangements worked out at the same meeting as the "Canadian Close Relative Scheme" (exhibit 73). That term does not describe anything other than the arrangements made by the Canadian authorities and the I.G.C.R. for the processing of the applications originating in Canada for the immigration of displaced persons residing in Germany, Austria or Italy admissible to Canada under P.C. 695 on a relationship basis.

[146]        The new procedures flowing from the adoption of P.C. 371 did not affect S/M Murray because the treatment of applications involving displaced persons in Germany was specifically exempted.

[147]        On April 16, 1947, S/Sgt. Hinton filed a further report with Headquarters (exhibit 83):

1.... Under present arrangements I have the particulars of any form 55 that shows the proposed immigrant as residing in Germany typed on to the usual form here and a copy of the same forwarded to Murray, which I believe is simply passed over by him to the British M.I. [military intelligence], who check with their records and arrange for same to be checked in Berlin, the form ultimately being returned here suitably marked and with a report if necessary. Unfortunately, for various reasons this procedure takes some time ...

2. With this in mind, it would seem hardly likely that many, if any, forms 55 will be received here concerning displaced persons in Germany, Austria or Italy once the I.G.C.R. lists for the countries have been completed. If this proves correct then there are only persons living on the economy of either of the three countries to be considered and as it is not likely such persons will be allowed to leave for some little time it would not seem necessary that the checking of any such persons be expedited ...

3. While there would not appear to be the necessity to expedite enquiries concerning persons residing within the German economy, as I have mentioned in previous reports it is my opinion that if satisfactory arrangements can be made for so doing all names of persons residing in Germany and countries occupied by them, before or during the last War could be checked through the records in Berlin.

[148]        I take it from this that S/Sgt. Hinton is remarking that once the applications of displaced persons residing in Germany (admissible on a relationship basis) are accounted for on the I.G.C.R.'s lists, the only cases left for him to deal with will be those of "persons living on the economy". I understand this to be a reference to persons resident in Germany but not within the mandate of the I.G.C.R., either because they are not displaced persons or because they are admissible to Canada on a ground other than relationship; in either case, they would fall outside the Canadian Close Relative Scheme to which S/M Murray was limiting his efforts.

[149]        A final piece of evidence to be considered is a report prepared by the R.C.M.P. in March 1948 for the Cabinet setting out the history and practice to date of security screening. Under the heading of Methods, five groups of potential immigrants are identified:

(a) Near Relatives -Sponsors resident in Canada

(b) Near Relatives - displaced persons - Sponsors resident in Canada

(c) Displaced Persons - Brought in under special employment categories

(d) Agriculturalists - Selected by Railway Colonization officials

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

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

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

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

(Exhibit 88)

[150]        This document confirms that only Near Relatives who came within the I.G.C.R. mandate were interviewed by the security officer. But it can also be taken to suggest that all displaced persons were interviewed, whether they were eligible on a relationship basis or on the basis of occupation. At the time this document was written, March 1948, the Bulk Labour Scheme authorized by P.C. 2180 would have been underway. That scheme dealt only with displaced persons, and did so on the basis of the demands of the Canadian labour market. If an employer required loggers, loggers were recruited in the displaced persons camps (transcript, December 4, 2001, at p. 473-475). Given the volume of immigration from the camps, I think it likely that this reference is a reference to the procedures established for the Bulk Labour Scheme. We know from the testimony of immigration officers who processed applications for that scheme that all candidates were interviewed by the security officer (transcript, December 4, 2001, at p. 475). The question is whether item c) also refers to displaced persons who were admissible on an occupational basis under P.C. 695, since the Bulk Labour Scheme had just been authorized when Mr. Fast immigrated to Canada. If it is, then it suggests that all displaced persons were interviewed, regardless of the basis upon which they were eligible for admission to Canada. This is inconsistent with the comments of S/M Murray in his report of April 1, 1947 (exhibit 81) in which he says that he interviewed only persons falling strictly within the Close Relative Scheme. Since S/M Murray was doing security interviews in Germany when Mr. Fast's application was processed, I believe that his report is a more accurate statement of his activities than a report prepared in Ottawa months later. As a result, I think it likely that the reference to "displaced persons - brought in under special employment categories" is a reference to the Bulk Labour Scheme.

[151]        The reference in this report to 'Agriculturalists - Selected by Railway Colonization officials' suggests that there was a particular way of treating these applicants, a theme to which I shall return later in these reasons.

[152]        To summarize, at the point in time where Mr. Fast's application to immigrate to Canada was processed, applications were being held up pending security screening only in the case of displaced persons coming within the Close Relative Scheme whose applications were processed in the camps. In other cases, security screening was being done through the facilities available to S/Sgt. Hinton in the United Kingdom but approval of applications was not delayed until the potential immigrant was cleared for security. If there was a security problem, the onus was on the R.C.M.P. to contact the Immigration Branch before a visa was issued.

The Processing of Jacob Fast's Application

[153]        With that background in mind, what do we know about the processing of Mr. Fast's application to immigrate to Canada? We know from exhibit 53, put into evidence through              Dr. Gosewinkel and authenticated by the affidavit of Margrit Alpers, that Mr. Fast and his family registered with the municipal authorities of Bremervörde on September 27, 1945. Their address was shown as Alte Strasse, number 4, Minstedt. Minstedt is a village in the Bremervörde police district. Exhibit 53 shows their previous place of residence as Pr. Stargaard, which is where the family underwent EWZ processing in 1943. The evidence of Dr. Gosewinkel is that the letters D.R. which appear on the card indicate that Mr. Fast was registered as a citizen of the German state.

[154]        We know from exhibit 53 that Mr. Fast and his family did not live in one of the refugee camps operated by the international refugee organizations, but they made their own way in the German economy. At some point, they must have made contact with Nathalie Fast's uncle Henry Toews, who lived in Arnaud, Manitoba. There have been produced from the archives of the Mennonite Church two documents which were marked as exhibit 147 which appear to be copies of forms completed on behalf of the Fast family by Mr. Toews.

[155]        The first document in exhibit 147 is a printed form entitled "Application for the Admission to Canada of Following Described Immigrants". The form is completed by hand, and is dated July 15, 1946, and signed by H.P. Toews. At the bottom of the form in bold print is "Submitted by Canadian Pacific Railway Company Department of Immigration and Colonization". The proposed immigrants are shown as Jakob Fast, Natalie Fast, and their children Therese, Marie and Heinrich Fast whose personal information is consistent with that of Jacob Fast and his family. Their address in Bremervörde is shown. Opposite nationality or Citizenship, "Displ. people, Mennonite from Russia" is shown. The applicant is shown as Henry Peter Toews from Arnaud, Manitoba. He is shown on the form as being the uncle of Natalie Fast.

[156]        The other form produced from the archives of the Mennonite Church as part of exhibit 147 is a printed IMM 55 form which has been partially completed on a typewriter. At the very top of the form "Approved Sugar Beet Growers Application" has been inserted in typewritten text. The applicant is shown as Rev. H.P. Toews and the proposed immigrants are shown as Jakob Fast and his family, described as Russian citizens, with an additional notation "All born in Russia". The copy of the form which has been produced is only partially completed and is neither signed nor dated. Handwritten across the front of the form as if through carbon paper are the words "General Stewart, July [illegible]".

[157]        Exhibits 148 and 149 were also produced from the archives of the Mennonite Church. Exhibit 148 is a letter dated May 14, 1947, written by Mr. Fast to an agency, whose name has been blacked out (likely the Mennonite Central Committee), to say that he had received a letter from Arnaud, Manitoba, indicating that tickets had been purchased for him and his family. He says that he has been advised that he should contact the addressee for information on whom he should contact for processing. The letter contains the following phrase: "[...name blanked out ...] has presented us as farm labourers on sugar beet fields and thought we would have to go to Gronau, but you would probably be the best person to provide us with information on this".

[158]        Mr. Fast received a reply from the Mennonite Central Committee in Gronau, Westphalia (exhibit 149). The letter simply advised that "If your uncle has made the necessary applications and payments in Canada, you will receive a summons from the military government, at which point you will then go to a camp for processing. You should not assume that you will have to go to the Gronau camp for this, rather [you will probably go] to Buchholz near Hanover".

[159]        The issue of the processing of Mr. Fast's application for immigration to Canada also requires consideration of Mr. Fast's travel document, exhibit 41, the Certificate for the Purpose of Emigration to Canada issued by the I.G.C.R. That document shows the dates and places of birth of Mr. Fast and his children. The document makes no reference to citizenship, other than a disclaimer by the I.G.C.R. to the effect that it "is issued without prejudice to and in no way affects the holder's nationality". The document bears a number of official stamps and endorsements. It has an I.G.C.R. stamp which is countersigned, showing it to have been issued at Hanover, on June 13, 1947. It also bears the stamp of the Department of National Health and Welfare, countersigned and dated June 13, 1947. It is stamped with a Canadian Immigrant Visa stamp containing the following information (the portions in bold print are written in by hand) :

Authority: Ottawa B-30154 D.P.

Issued at Hanover Germany

On 13^th June 1947

[160]        This is followed by a signature which has been identified as that of Mr. Cormier, the senior Canadian immigration officer in Germany at the time.

[161]        The description of the immigration and screening procedures in place during this time make it clear that the basis on which one claimed to be admissible to Canada was a key determinant of the treatment which one's application received. So, it is therefore necessary to decide on what basis Mr. Fast's application to Canada would have been processed.

[162]        Until June 6, 1947, applicants for immigration to Canada had to bring themselves within the permitted classes of immigrants in P.C. 695. After June 6, 1947, displaced persons in the camps could hope to immigrate to Canada under the authority of P.C. 2180 if they could show that they had certain occupational skills for which a demand existed in Canada. Given that             Mr. Fast's visa was granted on June 13, 1947, one week after the promulgation of P.C. 2180, it is almost certain that the machinery to process his application under that scheme was not in place at that time. Consequently, I believe it is a practical certainty that Mr. Fast's application was processed under the authority of P.C. 695. It is also relatively certain, in my view, that it was not processed on the basis of relationship. The degrees of relationship contemplated by paragraph 3 of P.C. 695 included that of orphaned niece or nephew under a certain age, not exceeding 21 years of age. Neither Mr. Fast nor his wife met the age qualification, so that they were not eligible for admission on the basis of relationship. In order to argue that they were treated as close relatives notwithstanding the fact that they did not meet the criteria found in P.C. 695, one would have to show that P.C. 695 was not applied according to its terms. There is no evidence which would support that conclusion.

[163]        If that is so, Mr. Fast's application would not have been processed as part of the Canadian Close Relative Scheme operated in conjunction with the I.G.C.R. It will be recalled that in his report of April 1, 1947, exhibit 81, written approximately ten weeks before Mr. Fast's application was processed, S/M Murray advised Headquarters that "Only persons who are listed on the Canadian Close Relative Scheme and for whom Form 55 has been forwarded to Germany, providing they come within the I.G.C.R. Mandate are being dealt with at this time. In view of this, it was not deemed advisable to carry on screening of persons who did not come within the above limits as it is considered a waste of effort" (my emphasis). As a result, one can say with a certain amount of assurance that Mr. Fast, who did not meet S/M Murray's criteria, would not have been interviewed by an R.C.M.P. security officer.

[164]        If Mr. Fast was not admissible on a relationship basis, he must have been admitted on an occupational basis. In his letter to the Mennonite Central Committee, exhibit 148, Mr. Fast advises that they are being "presented as farm labourers on a sugar beet field". The C.P.R. form which is part of exhibit 147 is headed "Approved Sugar Beet Growers Application". The letter corroborates the contents of the form which suggests that there was in fact a connection between Mr. Fast and the railway company. There is evidence that Mennonite relief agencies had developed a relationship with the railway companies to facilitate the movement of Mennonite refugees. Footnote 93 to Dr. Avery's report is a document dated 26 November 1946 which describes the visit of one Cornelius Klassen to the Canadian Mission in Germany. The document describes Cornelius F. Klassen as a member of the Executive Committee of the Mennonite Central Committee in the United States as well as in Canada. It says he carried with him a letter from H.C.P. Cresswell, Chief Commissioner for Immigration and Colonization in the C.P.R., saying that he was attached to the Canadian Colonization Association, a subsidiary of the Immigration Department of the C.P.R. This same letter indicated that Mr. Klassen was visiting Germany with a view to arranging the orderly departure to Canada of Mennonite refugees and displaced persons under the auspices of the Immigration Department of the C.P.R.

[165]            The document notes that the Mennonite Central Committee hoped to persuade the I.G.C.R. that Mennonites, who were regarded by the I.G.C.R as Volkesdeutsche (ethnic Germans) and therefore ineligible for assistance from the I.G.C.R., were to be considered as Dutch. The author of the document expresses some scepticism that this would succeed since most Mennonites last contact with Holland was some 300 years earlier.

[166]            Consequently, there is some reason to believe the railway companies were engaged in the movement of agricultural workers to Canada and that they did so in collaboration with Mennonite relief agencies.

[167]        The Minister attempted to show that all visa applicants in Germany were interviewed by a security officer by tendering the evidence of two former immigration officers who had processed the applications of potential immigrants in Germany in 1948.

[168]        Roger Martineau joined the Immigration service in 1945, following his discharge from the Air Force. He was dispatched to Germany in May 1948. Roger St. Vincent joined the service in November 1947 and was sent to Germany in June 1948. Both of them described their experience in processing applications for immigration to Canada. The introduction of their evidence was objected to on the basis that, since Mr. Fast's application was processed in June 1947, evidence of the procedures followed in 1948 was simply irrelevant to the issues which I had to decide. I allowed the evidence to be led on the basis that the Minister would show that the procedure followed in 1948 was the same as the procedure followed in 1947. Upon reflection, the Minister has failed to discharge that burden.

[169]        This is how Mr. St. Vincent described the process in which he was engaged:

THE WITNESS: The International Refugee Organization headquarters received the information regarding the selection of refugees as outlined by the Canadian government with the assistance from the Labour Department. This is what started at the period when I was there.

It was an arrangement whereby the Canadian employers or individuals would signify their need for different types of workers across Canada, whether they be mill workers, wood workers, farm labourers, sugar beet workers, or whatever type of workers. They would signify and they would establish a quota on the number of people that the employers in Canada or the individuals were prepared to assist.

That information was transmitted to Germany and it ended up in the holding camps of Germany and Austria. The holding camps were where the refugees lived. Those who had eligibility cards could receive rations and accommodations, in other words, sleeping quarters. The information was placed on the board in different languages saying "If you are interested in going to Canada, Canada is looking for these types of workers."

Those who signified an interest in the different occupations that were in demand would then register their intention and be processed in an IRO processing camp. They would be bussed or trucked to the nearest processing centre that could accommodate where there was a Canada section staff, a few members of the IRO working in the Canada section. They had the Australian section and other sections. And these people would document them according to the occupation that they were interested in.

After they had a certain number of them, it was a decision that had to be made by the labour officer in Karlsruhe as to whether he was going to go to that camp and pre-interview these people before a team went to the IRO processing camp to examine them. In other words, he had to assure himself that, if they were mill workers, they were in fact competent as such. Or if they applied for household service worker, domestic worker, there would be a lady from the Labour Department that came around and questioned them to assure that they met the requirements of the Canadian employer who wished them to be single, no children, not pregnant.

After this was done, not in all cases, but in many cases by the labour officer, we would be called to go to the camp, the IRO processing centre. This is where I, as the visa officer and in charge of the automobile that was leased to me by the CGIM, Canadian Government Immigration Mission, would proceed with a doctor and a security officer. I always had a doctor and a security officer with me throughout my stay in Germany wherever I went to examine refugees, displaced persons, in the IRO processing centre.

(Transcript, December 4, 2001, at p. 473-75.)

[170]        It is clear from this evidence, in particular the references to the role of the Department of Labour, that Mr. St. Vincent, and Mr. Martineau, whose evidence was to similar effect, were engaged in the processing of immigrants admissible to Canada under the authority of the P.C. 2180, the Bulk Labour program. In fact, Mr. St. Vincent admitted in cross-examination that he did not process the applications of sponsored applicants in 1948. The fact that these officers were processing applications which were authorized by a different Order in Council does not necessarily mean that the procedures were not the same. On the other hand, there is no onus on the defendant to show that they were different. The onus is on the Minister to show that they were the same. On the question of whether all applicants were interviewed by a security officer, as alleged by the Minister, the evidence of these gentlemen is of no assistance to me because they were engaged in a program which had only just been proclaimed at the time Mr. Fast's application was processed. The Bulk Labour program would certainly have fallen within paragraph c) of exhibit 88 which meant that all applicants were interviewed. But the Minister cannot argue that since all persons in that program were interviewed, Mr. Fast must therefore have been interviewed when it is clear that Mr. Fast was not part of that program.

[171]        However, Mr. Martineau did make an interesting observation when shown Mr. Fast's travel document (exhibit 41). He was asked to comment on the Visa stamp:

Q. Can you tell the Court what information is contained on the visa stamp? It says "authority"

A. Yes, there is an Ottawa file number there with the letters "DP" for displaced person; place of issue, Hanover, Germany; the date and the validity, three months

Q. Is there any indication on the visa stamp as to what category this person would have come into Canada under?

A. It doesn't really say, except for the fact that there is an Ottawa file number there, so there must have been a Canadian Immigration office involved.

Q. What does that tell you?

A. It could be a Form 55 for a worker.

(Transcript of evidence, December 13, 2001, at p. 1020-21.)

[172]        That observation is consistent with the conclusion to which I have come.

[173]        In the end result, I conclude that while there were two major immigration programs in Germany in which security screening by way of interview was mandatory, the Canadian Close Relative Scheme and the Bulk Labour Scheme, there were also other programs in place in which security screening was limited to paper screening coordinated from London by S/Sgt. Hinton. In particular there was the program operated by the railway companies, a program with which Mennonite relief agencies appear to have had a close relationship. According to exhibit 79, applicants under the railway programs would have been subject to paper screening only. This is corroborated by exhibits 82 and 88, both of which are documents which originate with the R.C.M.P. It is also confirmed by exhibit 81 in which S/M Murray indicates that he is limiting his efforts to members of the Close Relative Scheme falling within the I.G.C.R.'s mandate. On balance, I conclude that Mr. Fast's application was subject to paper screening only.

[174]        Both the Canadian Close Relative Scheme and Bulk Labour Scheme were limited to displaced persons in Germany, Austria and Italy. The Canadian Close Relative Scheme was limited in that way because of the requirements of the I.G.C.R. while the Bulk Labour Scheme was limited because of its legislative mandate, P.C. 2180. It is true that Mr. Fast was identified as a Displaced Person and that he travelled on a travel document available only to displaced persons. The evidence establishes that all immigrants who came to Canada under the Close Relative Scheme and the Bulk Labour Scheme were displaced persons and were interviewed by security officers. That is as far as the evidence goes. It does not establish that all displaced persons, without regard for the basis on which their application to immigrate to Canada was processed, were interviewed by security officers simply because they were displaced persons.

[175]        Therefore, I am unable to conclude that every Displaced Person coming to Canada from Germany in 1947 was interviewed for security concerns by an R.C.M.P. officer. I find that those who were eligible to immigrate to Canada on occupational grounds under P.C. 695, particularly if they were associated with a railway company, such as Mr. Fast probably was, were likely subject to paper screening only through S/Sgt. Hinton's office in London, and were not personally interviewed.

[176]        By way of abundant caution, and to avoid any possible misunderstanding, there is nothing in the evidence which would suggest that Mennonite relief organizations knew of Mr. Fast's wartime activities or that they were willing participants in the movement of Nazi collaborators to Canada.

[177]        It follows from this that I am unable to conclude that Mr. Fast misrepresented or knowingly concealed his wartime activities from a security officer screening potential immigrants to Canada. It also follows from this that I do not have to consider the issue of whether the Government had the said authority to reject immigrants on security grounds.

False Representations or Knowing Concealment of German Citizenship

[178]        The next issue is whether Mr. Fast falsely represented or knowingly concealed his German citizenship from Canadian immigration officials. This could have occurred in two contexts: in the course of the processing of his application by Mr. Cormier in Germany and at the time of his arrival in Canada. In both cases, he was interviewed by an immigration officer who was responsible to see that Mr. Fast was eligible for admission to Canada. As P.C. 1373 prohibited the entry or landing of enemy aliens, it is a fair inference that the subject of citizenship would have arisen in both conversations. The Minister takes the position that since it is clear that Mr. Fast acquired German citizenship, and was therefore ineligible, he can only have been admitted to Canada by misrepresenting or concealing his German citizenship.

[179]        Mr. Fast's counsel argued that Mr. Fast cannot have acquired German citizenship if he did so under duress. Counsel pointed to evidence that the alternatives were either to be shot or sent to a labour camp (transcript of evidence, December 3, 2001, at p. 415). In my view, the fact that the alternatives to taking German citizenship were unpleasant does not mean that one did not voluntarily accept German citizenship. In other words, while some may have felt coerced, others may not have needed to be coerced. If Mr. Fast felt coerced, it was open to him to tell the Court that he was, but he did not give evidence to that effect. I cannot presume that he was coerced. On the other hand, there is some evidence that he voluntarily asserted his German citizenship. Exhibit 53, Mr. Fast's German registration card, shows his citizenship as "D.R." which I have been told stands for "Deutsches Reich" or German citizen (exhibit 53, transcript of evidence, December 10, 2001, at p. 602). This information came from Mr. Fast, who would have been required to tender proof of his citizenship (transcript of evidence, December 10, 2001, at p. 596).    In my view, if Mr. Fast had German citizenship forced upon him, he would be unlikely to subsequently assert it, as he did during the registration process.

[180]        The Minister has proceeded on the basis that Mr. Fast lost his Soviet citizenship by taking German citizenship. There is no evidence before me that the taking of German citizenship required Mr. Fast to renounce his Soviet citizenship. The EWZ documents upon which the Minister relies recognize the possibility of dual citizenship. Exhibit 33 is the Application for Naturalization used by the EWZ teams. The applicant is required to declare his or her citizenship. The explanatory comments in relation to this question are as follows:

(State if you have dual citizenship; stateless persons should give former citizenship and reason for loss of such)

[181]        This does not prove that Germany allowed its citizens to maintain dual citizenship. But, it does show that the Nazi regime was aware of that possibility.

[182]        The same document, the Application for Naturalization, requires the applicant to sign a declaration that the contents of the application are true and to acknowledge that misrepresentation may result in the invalidation of the Certificate of Naturalization. However, it does not contain any form of renunciation of the applicant's original citizenship. Had the Nazi regime intended applicants to renounce their prior citizenship, it would have been very easy to incorporate such a renunciation in the application form. The absence of any form of renunciation is not conclusive that the taking of German citizenship did not require one to renounce one's prior citizenship. But it is consistent with such a hypothesis. If renunciation was presumed by German law, the Minister had the opportunity to put that evidence before the Court through            Dr. Marwell, who was qualified as an expert on resettlement and naturalization policy. If it is the Minister's position that Mr. Fast was lying when indicating that he was a citizen of the Soviet Union because German citizenship required him to renounce his prior citizenship, then it is for the Minister to prove that he was required to renounce. The Minister has not done so. Consequently, there is no basis on which I can conclude that Mr. Fast was misrepresenting himself in saying that he was a Soviet or Russian citizen.

[183]        But if answering a question truthfully but incompletely is not a misrepresentation, it may nonetheless amount to knowingly concealing the fact which was not disclosed. Misrepresenting a fact is not knowingly concealing it. Knowingly concealing a fact is suppressing that fact in the face of an inquiry which calls for its disclosure. It is not misrepresentation because ex hypothesi the answer to the inquiry is truthful, even though incomplete. The concealment consists in allowing a partial answer to stand as a complete answer, so as to lead the inquirer to believe that the fact which is not disclosed does not exist, or is not true. It is knowing concealment when the speaker is aware of the significance of the omission. This distinguishes knowing concealment from oversight or inadvertence.

[184]        This conclusion stops short of the position argued by counsel for the Minister that Mr. Fast had a duty of candour, that is, the duty to volunteer material information in the absence of any inquiry being made. This argument was canvassed by Collier J. in Canada (Secretary of State) v. Luitjens, [1991] F.C.J. No. 1041, where the learned judge undertook a review of the Canadian, American and English jurisprudence on the subject. He noted, in particular, the decision of the House of Lords in a case called Zamir v. Secretary of State for the Home Department, [1980] 2 All. E.R. 768, in which the House of Lords found that there was a duty on applicants to disclose all material facts in their knowledge. However, he noted that the House of Lords had changed its position in a subsequent case, Khawaja v. Secretary of State, [1983] W.L.R. 321. Collier J. held that the better position was: " absent relevant questions, there is no duty of candour".

[185]        The Minister relied upon the decision of the Supreme Court of Canada in [1974] S.C.R. 850">Canada (Minister of Employment and Immigration) v. Brooks, [1974] S.C.R. 850, in support of its position that there was a duty of candour which extended beyond the specific questions asked of the applicant for entry to Canada. [1974] S.C.R. 850">Brooks, supra, is a difficult case in which the Supreme Court explored a series of questions including the issue of materiality in relation to misstatements made to immigration officers. It was in the course of that discussion that the issue of duty of disclosure arose. There is no unequivocal statement in the case that there is a duty of candour in the absence of inquiry. And, for the reasons set out below, I am satisfied that questions would have been asked of Mr. Fast as to his citizenship.

[186]        I have no hesitation in concluding that Mr. Cormier inquired as to Mr. Fast's citizenship when processing his visa application in Germany. P.C. 1373 made enemy aliens inadmissible for entry to Canada. Mr. Cormier was required to satisfy himself that Mr. Fast was admissible to Canada, or, to put it another way, that he was not inadmissible. This necessarily leads to questions about Mr. Fast's citizenship. Mr. Fast may have truthfully answered that he was a Soviet or Russian citizen. I am satisfied that if he had answered that he was a German citizen, he would not have been allowed to enter Canada. Consequently, Mr. Fast cannot have disclosed his German citizenship to Mr. Cormier. Does that failure amount to knowingly concealing his German citizenship?

[187]        Am I to assume that Mr. Fast was aware that his German citizenship was a bar to his entry to Canada so that his failure to disclose it to Mr. Cormier is culpable and not an innocent oversight? Once again, the onus is on the Minister to prove such knowledge, or circumstances from which it can be inferred. There is no onus on Mr. Fast to disprove anything until the Minister leads sufficient evidence on the issue to shift the tactical burden to him. There is nothing in the evidence in relation to the processing of Mr. Fast's application by Mr. Cormier which would support any particular inference as to Mr. Fast's state of mind on this issue.

[188]        The next point in time at which this issue arises is in the processing of Mr. Fast's application for landing at Halifax. Exhibit 49 is the C.G.R., essentially the ship's manifest, which was used by immigration officers in the processing of immigrants at the Port of Entry. The Minister called Mr. Joseph Aldard Gunn, a retired immigration officer, to give evidence of the practice at the Port of Entry. Mr. Gunn testified that in 1946 and subsequently, he had participated in the processing of immigrants coming to Canada. It was his evidence that the C.G.R. was usually filled out by the purser staff on the ship who would interview the immigrants, examine their documents and complete the C.G.R. (transcript of evidence, December 4, 2001, at p. 539).

[189]        According to Mr. Gunn, the immigration officer at the Port of Entry would confirm each item of information contained on the C.G.R. (transcript of evidence, December 4, 2001, at p. 544-45). Columns 8 and 9 of the form dealt with nationality and race respectively. The explanatory comments under Nationality were "Country of which a citizen or subject", to which the answer recorded for Mr. Fast and the members of his family is "Russian". While Mr. Gunn does not use the term, it appears that race was equivalent to ethnicity. In the case of the Fast family, the race was shown as Dutch. This is consistent with the position which Mennonite relief organizations advocated with the I.G.C.R.

[190]        Once again, the declaration as to nationality, though truthful, is capable of constituting knowing concealment by Mr. Fast of his German citizenship if one is satisfied that Mr. Fast was aware of the significance of the omission of any reference to his German citizenship. The only evidence which suggests that Mr. Fast may well have been aware of the importance attached to German citizenship was his answer to the question as to race or ethnicity, which Mr. Fast indicated as Dutch. It is true that there is no evidence as to the question which Mr. Fast was asked in relation to this answer. However that omission is supplied by other evidence.

[191]        The EWZ documents show that Mr. Fast's antecedents on both sides of his family and that of his wife were German. The information as to his family history can only have come from him. The EWZ examiner was satisfied that Mr. Fast was 100% German (exhibit 37). In those circumstances, Mr. Fast's reference to his race as Dutch cannot be taken as an oversight. As noted earlier, the Mennonite relief agencies attempted to outflank the I.G.C.R. and I.R.O. restrictions on providing assistance to Volksdeutsche by arguing that Mennonites were ethnic Dutch. The only reason for Mr. Fast to identify himself as Dutch was to avoid reference to his status as Volksdeutsche or ethnic German in a circumstance where that status was unhelpful to his efforts to leave Germany. I infer from this that Mr. Fast was alive to the significance of his German connection. If Mr. Fast knew that German ethnicity was an issue, he cannot but have known that German citizenship was also an issue. It is inconceivable that Mr. Fast would have thought it to his advantage to minimize his German ethnicity but not have addressed his mind to the significance of his German citizenship. I find that Mr. Fast was aware that German citizenship was an impediment to his entry to Canada, even if he may not have known of the precise terms of P.C. 1373, and that his failure to refer to German citizenship in response to questions as to his citizenship was a knowing concealment of that attribute. His willingness to allow a partial answer to stand as a complete answer to the question of citizenship, thereby forestalling or averting further inquiry, amounted to knowingly concealing that fact within the meaning of section 10 of the Citizenship Act. This is as true of Mr. Fast's interview with                 Mr. Cormier as it is of his interview with the immigration officer who interviewed him upon arrival in Halifax.

CONCLUSION

[192]        As a result of the evidence which was put before me, I have come to the conclusion that Mr. Fast was involved with the auxiliary police, specifically the political department (commonly known as the SD) in Zaporozhye, Ukraine, during the Nazi occupation of that city from 1941 to 1943. The evidence from the EWZ documents is to the effect that he was an interpreter. The evidence from his examinations for discovery which the Minister read into the record as part of her case is to the effect that he was a driver.    He wore a uniform and at least one witness says he carried a gun. The evidence is to the effect that the auxiliary police assisted the occupying forces in the execution of their racial policies. There is no evidence as to what role Mr. Fast may personally have played in that regard. However, it is clear that, on any reasonable interpretation of the term, he was a collaborator.

[193]        I have also concluded that Mr. Fast became a citizen of Germany when he retreated westward ahead of the advancing Soviet army.

[194]        I have also concluded on a balance of probabilities that Mr. Fast was not interviewed by the R.C.M.P. in 1947 in relation to his wartime activities in the course of the processing of his application to immigrate to Canada. Given what I have concluded about the basis upon which Mr. Fast was found to be admissible to Canada, I think it more likely than not that he was screened for security through the facilities organized by S/Sgt. Hinton in London, England. That screening failed to uncover his wartime association with the auxiliary police. Consequently,           Mr. Fast neither misrepresented nor concealed his wartime activities in the course of immigrating to Canada because the preponderance of the evidence suggests that he was not asked about those activities.

[195]        However, I have concluded that Mr. Fast did not disclose the fact of his German citizenship to Mr. Cormier, the visa officer who interviewed him in Germany, and to the immigration officer at the Port of Halifax who interviewed him at the time of his entry to Canada. I am satisfied that if he had disclosed his German citizenship to either of those gentlemen, he would have been refused entry. It follows that since he was granted entry, he did not disclose that fact. I conclude from the fact that Mr. Fast misrepresented his ethnicity on the C.G.R. that he was aware of the significance of German citizenship on his admissibility to Canada so that his failure to disclose it upon inquiry amounted to a knowing concealment of that citizenship. I am therefore satisfied that Mr. Fast obtained Canadian citizenship by knowingly concealing his German citizenship at the time of obtaining entry to Canada, as provided in subsection 10(2) of the Citizenship Act.

[196]        In the course of the hearing, counsel for the Minister undertook that, if successful, the Minister would not seek costs against Mr. Fast's litigation guardian. Consequently, notwithstanding the fact that the Minister has been successful, there will be no order as to costs.

OTTAWA, ONTARIO

October 3, 2003

                                                                                 "J.D. Denis Pelletier"          

                                                                                                            Judge

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           T-453-00

STYLE OF CAUSE:                           The Minister of Citizenship and Immigration

                                                                                          v.

                                                                                  Jacob Fast

PLACE OF HEARING:                                   Hamilton, Toronto, Ottawa

DATE OF HEARING: 28, 29, 30 November 2001 (Hamilton), 3, 4, 10, 11, 12, 13 December 2001 (Toronto), 9 January 2001 (Toronto), 27,28 February 2002 (Toronto)

24 April 2002 (Toronto), 8-12 July 2002 (Ottawa)     

REASONS FOR ORDER AND ORDER: Mr. Justice Pelletier

DATED:                                                              October 3, 2003

APPEARANCES:

                         FOR PLAINTIFF

Peter A. Vita Q.C.

Catherine Vasilaros

Jeremiah Eastman

FOR DEFENDANT

Michael Davies

Harald A. Mattson

SOLICITORS OF RECORD:

                         FOR PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada

FOR DEFENDANT

Bayne, Sellar, Boxal

Ottawa, Ontario