Date: 20010302
Docket: T-2669-97
Neutral citation: 2001 FCT 138
IN THE MATTER OF revocation of citizenship pursuant to sections 10
and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19
of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER of a request for reference to the Federal Court
pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;
AND IN THE MATTER of a reference to the Court pursuant to Rule 920
of the former Federal Court Rules, continued pursuant to Rule 169(a)
of the Federal Court Rules, 1998, as required pursuant to Rule 501.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
WASYL ODYNSKY
Defendant
REASONS FOR JUDGMENT
MacKAY, J.:
[1] This is a reference by the plaintiff Minister of Citizenship and Immigration, pursuant to s. 18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 as amended, (the "Act"), of the Minister's case concerning the obtaining of citizenship by the defendant, Wasyl Odynsky. The Minister requests a declaration that the defendant was admitted to Canada for permanent residence and obtained Canadian citizenship by false representation, or fraud or by knowingly concealing material circumstances.
[2] For the reasons that follow, I issue the declaration sought, since I find on a balance of probabilities that Mr. Odynsky was admitted to Canada for permanent residence in 1949, and obtained citizenship under the Canadian Citizenship Act, R.S.C. 1952, c. 33 (the "1952 Act") by false representation or by knowingly concealing material circumstances.
[3] These Reasons are lengthy and for ease of reference they are organized under the following headings, commencing at the paragraph noted below.
| [13] The Issues Before the Court |
| [20] Mr. Odynsky's Odyssey, through World War II to 1955 |
| [49] Canadian Immigration Policy and Practice, 1945-1949 |
| [61] Mr. Odynsky's Evidence of his Admission to Canada |
| [75] The Circumstances of Mr. Odynsky's Obtaining Citizenship |
| [91] Significant Legal Issues |
| [92] The Scope of the Notice of Revocation |
| [113] The Application of s. 10 of the Act |
| [125] The Authority to Reject Prospective Immigrants on Security Grounds |
| [154] The Interpretation of "knowingly concealing material circumstances" in s-ss. 10(1) and 18(1) of the Act |
| [163 ] Mr. Odynsky's Wartime Activities and the Security Screening of Prospective Immigrants in 1949 |
| [192] Summary of Findings and Conclusions |
Introduction
[4] The Minister served notice upon Mr. Odynsky of her intention to report to the Governor in Council, pursuant to s. 10 of the Act, that the defendant had obtained citizenship under the Act by false representation or fraud or by knowingly concealing material circumstances. After receipt of that notice Mr. Odynsky requested that the Minister refer the matter to this Court.
[5] These steps were in accord with ss. 10 and 18 of the Act which provide:
| 10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
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| 10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
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| 18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
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| 18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne soit réalisée:
a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour;
b) La Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
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| [6] The Minister's Notice of Revocation of Citizenship to Mr. Odynsky, dated September 24, 1997, referred to both the Act and its predecessor, the 1952 Act. It advised that the Minister proposed to make a report to the Governor in Council within ss. 10 and 18 of the Act, and s. 19 of the 1952 Act: |
| . . . on the grounds that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, in that you failed to divulge to Canadian immigration and citizenship officials your collaboration with German authorities and your engagement in activities connected with forced labour and concentration camps during the period 1943-1944, as a guard at the Trawniki Training Camp and later at the Poniatowa Labour Camp, in Poland. |
| [7] The 1952 Act, by s. 19, referred to in the Notice, in essence combined the substance of ss. 10 and 18 of the Act, which replaced it. The former Act provided that the Governor in Council might order that citizenship cease, on report of the Minister that a citizen, other than one born in Canada, had obtained a certificate of citizenship by false representation or fraud or by concealment of material circumstances, subject to confirmation of such a finding by a Commission of inquiry. |
| [8] The Notice to Mr. Odynsky also advised that he might request, as he later did, that the Minister refer the case to this Court, which she did by Notice of Reference dated December 11, 1997. It also advised that a report to the Governor in Council would not be |
| made unless the Court decides that the defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. |
| [9] For the record I note that following the reference and filing of a statement of facts by the Minister to the Court, the Federal Court Rules, 1998 came into force on April 25, 1998, by SOR/98-106. In accord with those Rules this matter was heard as an action pursuant to Rule 169, with pleadings, pre-trial preparations, and trial in accord with Part 4 of the Rules, concerning Actions. |
| [10] For the record also, I note that the Court and counsel heard evidence of witnesses called on behalf of the defendant, and by the Minister, in Beleluja, Ukraine, Mr. Odynsky's home village, for four days in November 1998, with hearings in Toronto following, over 25 days spread from January to August 1999. The Court acknowledges the contributions of witnesses in the Ukraine, in particular, Ivan Andriyovich Timchuk from Beleluja, Ivan Wasylovich Lukaniuk of Khimchin Village, and Mykola Teodorovich Kishkan of Vidiniv Village, all of whom were conscripted in 1943 and trained and served as guards with Mr. Odynsky. I acknowledge also the courtesy and kindness of the principal of the school in Beleluja where hearings were held, and her friends from Beleluja who prepared lunch each day for the group of counsel, reporter and interpreters, and Court staff. To the many people of the village who attended the hearings with considerable interest, and evident concern and respect, I express gratitude. |
| [11] I acknowledge also the cooperation of Ukraine officials who facilitated arrangements for evidence to be heard there, pursuant to the Memorandum of Understanding between the Office of the Procurator-General of Ukraine and the Department of Justice of Canada, concluded in September 1992. |
| [12] I acknowledge also the important contribution of other witnesses, heard in Canada, including former public servants, expert witnesses, and many others, including the defendant, Mr. Odynsky, and witnesses called by him. |
| The Issues Before the Court |
| [13] It is now well settled that the ultimate issue for the Court in this reference by the Minister under the Act for a declaration is a determination of fact.1 In that determination, the civil standard of proof, i.e., a balance of probabilities, applies,2 but the Court will "scrutinize the evidence with great care because of the serious allegations to be established by the proof that is offered", as Mr. Justice McKeown commented in Bogutin.3 A positive determination, granting the declaration sought, by paragraph 18(1)(b) of the Act is an essential preliminary to the exercise of discretion by the Minister to make a report to the Governor in Council. The Court's determination is not subject to appeal, by reason of s-s. 18(3) of the Act. |
| [14] While the ultimate issue for determination appears relatively simple, its resolution is complicated by reason of the lack of records maintained by the Minister concerning Mr. Odynsky's admission to Canada and his subsequent obtaining of citizenship. Its resolution is complicated further by the quality of evidence concerning, and the difficulty for witnesses asked to recall, events and processes that occurred or in which they may have been involved more than 50 years ago. |
| [15] Born in January 1924, in the village of Beleluja, Ukraine, then within Poland, Mr. Odynsky arrived in Canada in 1949, landing at Halifax on July 3. He came to this country from a camp, operated by the International Relief Organization (I.R.O.), for displaced persons located in then West Germany, where he had migrated as World War II was ending. He was granted an immigrant visa and was assisted in coming to Canada as a farm labourer. He is one among many thousands of displaced persons in Europe who came to Canada after 1945. Most of them later became citizens and contributed to the evolution of our modern society. In July 1955, Mr. Odynsky applied for Canadian citizenship, which was granted on December 5, 1955. Since 1950 he and Mrs. Odynsky, who were married in 1948 in a camp for displaced persons, have lived in Toronto. There their three children were born, their family was established and there he worked until retirement. |
| [16] Before turning to resolution of the issues of fact and law upon which my conclusion is based I review the background, including Mr. Odynsky's experience so far as it is here relevant up to 1955 when he became a Canadian citizen, Canadian immigration policy and practice as it was in the years 1945 to 1949, Mr. Odynsky's evidence of his admission to Canada, and the circumstances of his obtaining citizenship. |
| [17] The principal issues of law important for my determination are then dealt with in turn, including the scope of the Notice of Revocation, the application of s-s. 10(2) of the Act, the authority to exclude immigrants on security grounds in 1949, and the interpretation of "knowingly concealing material circumstances" within s-ss. 10(1) and 18(1) of the Act. |
| [18] I then turn to more difficult issues of fact in assessing whether, in connection with his admission to Canada in 1949, Mr. Odynsky made false representation or knowingly concealed material circumstances, that is, his service with German forces during World War II. |
| [19] Finally, I set out a summary of the findings of fact and legal conclusions upon which my ultimate determination rests, and I conclude by stating that determination and granting the declaratory relief sought by the Minister. |
| Mr. Odynsky's Odyssey through World War II to 1955 |
| [20] Beleluja, where Mr. Odynsky was born in 1924, is in the Western Ukraine, in Snyatyn Rajon of the Oblast then known as Stanislav, now known as Ivano-Frankivs'k. That area was then within Poland as a result of the settlement of boundaries after the First World War. In 1939, after the German attack on Poland, in accord with the pact between Germany and the Soviet Union, the area came under Russian occupation. With the German attack on the Soviet Union in June 1941, it came under German domination, within an area of occupied countries administered by the German conquerors under the General Gouvernment, controlled by German police and army authorities. It so continued until 1944 when the advancing Soviet Army drove the retreating Germans from Ukraine. Thereafter, until independence of the Ukraine in August 1991, the area was within the Soviet Republic of Ukraine, within the U.S.S.R. |
| [21] Mr. Odynsky's family lived in Beleluja where his father was a farmer with somewhat more extensive farm operations than many others in the village. He lived with his father and mother, two brothers, one older and one younger, and a younger sister. Mr. Odynsky completed five years of school in the village, before leaving at age 11 to work on the family farm. He was 15 years old when the Second World War began on September 1, 1939, and he remained in the village, working on the family farm, first under Soviet control for nearly two years, and then from June 1941 under German control. In 1943 he was taken by the Germans to serve with their military and police services. |
| [22] His father had opposed the collective consolidation of farms under the Russians in the period 1939-41, and again after 1944 when the Russians returned after driving the Germans out of Ukraine. When the Russians returned, Mr. Odynsky's older brother was killed by Russian troops when he was seeking to hide arms for the Ukrainian national movement. His father was arrested and imprisoned for more than a year, then was permitted to return to Beleluja to find his two younger children and was forced to move with them to Kazakhstan after the war was over. Mr. Odynsky's mother was taken by the Russians to forced labour in the Soviet Union, and only after 10 years was she able to join her husband in Kazakhstan. Ultimately his mother died there, his brother and sister remained there, while his father returned to Beleluja after an absence of some 20 years. |
| [23] The hopes of some Ukrainian people in 1941, that the German attack on the Soviet Union would ultimately lead to independence for Ukraine, were soon dashed. German forces quickly eliminated any movement for independence, and German control and policies for the occupied eastern territories were soon resented by the Ukrainian people. They endured much hardship and suffering in the course of the war and in the postwar years. |
| [24] Mr. Odynsky testified that following the German occupation his older brother discovered hidden village records, from the days of Soviet occupation, which listed his family as one of ten designated to be transported to the east by the Russians, presumably for opposition to collective farms. That proposed removal was frustrated by the German occupation. |
| [25] In the village of Beleluja under German occupation, a few Jewish families, who had lived among the Ukrainian population of the village for many years and were accepted by them as equals, were taken away by the Germans and were not seen again. |
| [26] In late 1942 or early 1943, younger Ukrainians, including many from the Ivano-Frankivs'k area, were taken by the Germans for forced labour within Germany. Mrs. Maria Odynsky, the defendant's wife, who is also a native of Ukraine, born in the village of Rothovytsia, was so taken to Germany in 1943 when she was only a teenager. Two of her brothers were also taken to Germany for forced labour. Many others were taken to serve with auxiliary military and police forces in support of the German forces, to provide police and security in the occupied eastern territories. Initially that support was provided by Volksdeutsches, ethnic Germans living in occupied countries, and by selected men drawn from the ranks of prisoners of war ("POWs") captured from Russian forces. By early 1943 young men from occupied countries, particularly Ukraine, were drawn into the auxiliary services by the German occupier. |
| [27] Mr. Odynsky was caught up in the German sweep for younger people to assist their forces. In early February 1943, the mayor of his village was directed to provide a list of young men born in the years 1920 to 1924 and to send those individuals to Snyatyn, which he did. Among those sent to Snyatyn was Mr. Odynsky. There he and four others from Beleluja were selected among many others, and they were told that they were required to serve with the German army forces. They were permitted to return home but were ordered to report a few days later, on February 10, at Kolomyja. If they did not return as directed they would be subject to arrest. |
| [28] The five young men selected from Beleluja returned home. They did not show up on February 10, as they had been directed to do. Rather, they hid in the fields nearby and in the village. In April the Gestapo, with local police, came to the village looking for those who had failed to report in February as ordered. They directed that if those missing young men did not show up in the village within a limited time their families would be taken away. |
| [29] Mr. Odynsky and the others surrendered. They were all taken by horse and wagon to Snyatyn, and threatened with death if they tried to escape again. After two weeks in the local jail they were taken to Kolomyja where they were imprisoned for two more weeks. While there, they were threatened with death for deserting by not reporting as directed, but a local lawyer, interceding on their behalf, succeeded in having this threat lifted. They were spared, but were warned that any escape would be punished by death when they were caught, or if they were not caught, their families would be sent to concentration camps. |
| [30] They were transported by rail to Trawniki, in eastern Poland, in the Lublin district then under administration of the General Gouvernment. At Trawniki, the German Schutz-staffel, (the "SS"), supervised the training of auxiliaries. The SS was the organization originally formed within the German National Socialist, or Nazi, Party to promote its political, ethnic and social goals. Under Himmler the SS was ultimately responsible for police operations in German occupied eastern territories, including the forcing of Jews into ghettos and their murder by killing squads and at death camps. Death camps and forced labour camps were operated by the SS in the General Gouvernment area, and those operations relied in part on auxiliary police. Trainees at Trawniki were first recruited from captured Russian soldiers in POW camps, and later, by 1943, those drawn from young men born in occupied territories. In addition to the training camp, at Trawniki the SS operated a forced labour camp where Jews were detained and forced to labour to produce clothing and other goods for German forces.4 |
| [31] Mr. Odynsky and his fellow trainees were issued uniforms, given medical examinations and basic training in marching, guarding and the use and care of weapons. Except for limited training purposes they were not issued weapons. A personnel form was completed for signature by each man with his photograph and thumbprint. Copies of a form issued for one Wasyl Odynskj, of Ukrainian nationality, born in 1924 in Beleluja, was among documents adduced at trial.5 It is identified as "Personalbogen Nr. 3337", dated 7.4.43 at Trawniki. It bears a picture and a thumbprint, but the signature is not legible. So far as it is legible Mr. Odynsky denied at trial that the signature is his and he was not convinced the picture was of him. He testified he had not seen the document before it was produced for this proceeding. The document had been retrieved from Russian archives. It does record a transfer to Poniatowa on "25.v.43". There was some evidence that another Wasyl Odynsky or Odynski, from Beleluja, was also taken by the Germans to Trawniki among the five young men taken in April 1943. |
| [32] After some weeks of basic training at Trawniki, Mr. Odynsky, with others from the group of trainees, was included in a company sent to serve as guards for another SS forced labour camp, at Poniatowa. This camp, like Trawniki, was in the Lublin district, which by 1943 included a number of death camps and labour camps operated by the SS. |
| [33] At both Trawniki and Poniatowa the factories within each camp were operated by German business firms which had been moved from ghettos in Warsaw and elsewhere. Many former employees moved with the factories, taking their families with them, and with other workers they were forcibly confined, and required to work on production for the German forces. The operation of these camps was but one phase in "Operation Reinhardt", the Germans' "final solution" for Jews in eastern occupied territories. |
| [34] At Poniatowa, most of the labourer-prisoners were housed within the main campsite, where the German headquarters and housing for the German force were also located. About a kilometer away Poniatowa also included a housing facility, known as the "Seidlung" or Settlement, consisting of apartment buildings for labourer-prisoners who had been comparatively well-to-do, and for German civilian factory supervisors. There was also a building for the "Trawniki" men, as the Ukrainian auxiliaries, including Mr. Odynsky, were called. His evidence at trial was consistent with that of his compatriots who were heard as witnesses at Beleluja in 1998, more than 50 years after their experience at Poniatowa. Their task was to patrol and guard the perimeter of the Seidlung, ostensibly for protection against attack by partisans, and to check the labourer-prisoners leaving each morning and returning at night. It appears that the Ukrainian Trawniki men, at least those at the Seidlung, were not directly responsible for guarding the labourer-prisoners. The prisoners were under direct supervision of Jewish "capos", who were responsible for maintaining order and discipline among them, and within the factories German civilian staff directed their work. Other Trawniki men were used as guards at the main camp and they and the German SS officers lived at the main camp. |
| [35] During five or six months of this service at Poniatowa, Mr. Odynsky's evidence is that he had little personal contact with the prisoners, except those who provided medical and dental services for the guards as well as the prisoners. |
| [36] In the fall of 1943, the operation of the forced labour camp at Poniatowa was suddenly terminated. On November 3 or 4, 1943, the Trawniki men were confined to their barracks at night and were not permitted to leave until late the next day. In less than a full day German police and SS forces, apparently including some of the Einsatzgruppen or killing squads commanded by the SS, marched the prisoners, men, women and children, to large trenches outside the main camp. These trenches the prisoners had been forced to dig earlier, on the pretence these were to be defence works for the camp. When the prisoners reached the trenches they were ordered to undress and enter the trenches naked, where they were then executed by shooting. |
| [37] The shooting at Poniatowa was carried out at the same time as similar killing operations at Trawniki and at another camp, at Majdanek. Operation "Erntefest" or "Harvest Festival" as it was known to the Germans, was a day of infamy. It is estimated that at Poniatowa alone 15,000 people were killed that day. Mr. Odynsky's evidence is that he had seen prisoners assembled and marched from the Seidlung, that gunfire was heard all day, and that a Ukrainian officer had told him the Germans were killing the Jews. When he and his fellows were permitted to leave their barracks there were no Jewish labourers to be seen at Poniatowa, either at the Seidlung or at the main camp. There was evidence given at the hearing of this reference by Dr. Yitshak Arad, who lived throughout the war in Poland, now an Israeli historian, an expert in regard to the Holocaust, particularly in Eastern Europe and at Trawniki. He estimated that more than 25,000 others were also massacred in Operation Erntefest at the other forced labour and death camps in the Lublin district. From his extensive studies he testified that some Jewish prisoners, excluded from the first day's massacre so that they might be forced to burn the bodies of those killed, refused to perform that task and that they in turn had been shot by Germans and Ukrainian "Trawniki men", though he admitted in cross-examination there was no evidence to support his conclusion about this involvement of Trawniki auxiliaries. |
| [38] There is no evidence that Mr. Odynsky had any extended contact with Jewish labourer-prisoners at Poniatowa, or with guarding them except in guarding the perimeter of the Seidlung. There is no evidence that he or any of his Ukrainian colleagues at the Seidlung had any part in Operation Erntefest, or in the subsequent massacre of those left to burn the corpses. After that dreadful November day the Trawniki men at Poniatowa continued to guard the Seidlung, the main camp, and their facilities, primarily against any possible partisan attack, even though the camps were no longer in operation with forced labourers or any other prisoners. |
| [39] Later in November 1943, Mr. Odynsky was granted leave and permitted to return to Beleluja where his mother had become very ill. While there, he too became ill and he remained longer than his original leave, but after two weeks of extended leave time he was ordered to return to Poniatowa, which he did. On his return, there were no prisoners held at the camp, then or thereafter. |
| [40] From January 1944, through spring until June or July, Mr. Odynsky and his colleagues continued to guard the facilities at Poniatowa and at Trawniki. Some of the men were sent off to other duties. Then, with the Russian army advancing ever closer, Mr. Odynsky and others were moved to Trawniki and formed into a company in an SS battalion, called Battalion Striebel, named after the SS leader who had commanded the camp at Poniatowa, and now commanded the battalion of Trawniki auxiliary troops. In the summer of 1944, the battalion, including Mr. Odynsky, moved west, ahead of advancing Russian forces, serving primarily as a labour battalion. In February 1945, they were in the area of Dresden, in Germany, when allied bombers wreaked havoc on the city. They spent some six weeks locating and burying or burning the dead, helping to clean up the city and to restore its basic services. |
| [41] Battalion Striebel, moved on from Dresden to an area west of Prague, Czechoslovakia in the spring of 1945. It was there that it disbanded when Germany surrendered in May. Some of its members remained there, within the later Soviet area of occupation, and a number of them were conscripted into the Soviet army. Others, including Mr. Odynsky, made their way westward, to Eger, in a portion of Germany occupied by American forces. There they surrendered, wearing German army uniforms, and they were billeted in tents in an American army camp for POWs. |
| [42] Those in the camp were registered by American authorities, and were issued an identification document in exchange for their German military documents. Mr. Odynsky did not then speak English and his evidence is that he was not asked for and did not give any information about his war service. After about 6 weeks in the camp, many were released, including Mr. Odynsky and five others from his company. They were issued release papers, allowed to leave the POW camp, and they were permitted to go to and remain at Augsburg. |
| [43] There they found a Ukrainian committee promoting the establishment of a camp for Ukrainians. There are estimates that more than 7 million displaced persons were in western Europe at the end of the war and that more than a third of them were from Ukraine, persons who had come as forced labourers brought to Germany during the war, or those who arrived with retreating German forces at the end of the war6. A camp for those who did not wish to return to Ukraine, by that time under Soviet occupation, was established at Gegengen. There Mr. Odynsky registered, using his birth certificate, the release paper from the POW camp and a document from the Ukrainian committee in Augsburg certifying his status as a Ukrainian. |
| [44] In late fall of 1945, the rapidly growing population at Gegengen was moved to another camp known as Somme Kaserne. That camp was initially operated by the United Nations Relief and Rehabilitation Administration which sought to support the return of displaced person to their home countries. By 1947 a new agency, the International Relief Organization, had assumed responsibility for the operation of Somme Kaserne, and it pursued the goal of assisting displaced persons to resettle in countries other than their homelands. |
| [45] In Somme Kaserne, Mr. Odynsky met and married his wife Maria. She too was a displaced person in Germany at war's end after release from forced farm labour in which she had been engaged for more than two years. While they were living at Somme Kaserne, in 1948 the Odynskys learned that the IRO was seeking to settle displaced Ukrainians in various countries abroad, including Canada, which was reportedly seeking workers for mining and farm work. Mr. and Mrs. Odynsky discussed the possibilities and decided to try to go to Canada where Mr. Odynsky's maternal grandparents and some others of his family lived in British Columbia. |
| [46] I deal with Mr. Odynsky's evidence of his admission to Canada as a landed immigrant in 1949, and of his obtaining Canadian citizenship in 1955, in later portions of these reasons. At this point it is sufficient to note that they applied and were accepted for immigration to Canada. Mr. Odynsky was landed at Halifax in July 1949, and he travelled to Toronto. |
| [47] At Toronto, he was assigned to work on a farm in the area of Listowel, Ontario, where he remained for six months. He moved then to another farm, near Stouffville, Ontario, where accommodation was provided not only for him but also for Mrs. Odynsky who joined him in Canada in January 1950. |
| [48] When his contracted year of farm labour service was complete, Mr. Odynsky and his wife moved to Toronto. There their three children were born, they established their home and their family life within Toronto, and within the Ukrainian community. There they have remained and, as we have seen, they became Canadian citizens in 1955. |
| Canadian Immigration Policy and Practice, 1945 - 1949 |
| [49] Mr. Nicholas D'Ombrain, a former senior public servant, provided an affidavit and testified as an expert witness on the workings of federal cabinet government and policy, with particular reference to immigration policy and security screening in the years after World War II.7 |
| [50] As the war ended, immigration to Canada was restricted under regulations enacted in 1931,8 pursuant to the Immigration Act of 1927.9 Through the 1930's an annual average of only 7,000 immigrants were admitted to Canada, and those were all primarily from the United Kingdom, Ireland, Dominions of the then British Empire, and the United States, the only nationals regularly considered admissible under the regulations then in force. |
| [51] With the end of the war in 1945, interest in expanding immigration to Canada was revived, and supported by public policy, in part to meet manpower requirements, particularly in agriculture and resource industries. Following an outline of government policy to the House of Commons by Prime Minister MacKenzie King in May 1947, immigration restrictions were also relaxed to assist in resolving the substantial international problem of resettling hundreds of thousands of people displaced from their homelands and then located in camps in western Europe. The first provision for admission of displaced persons, by P.C. 2180 in June 1947, was for 5,000 to be admitted. By the fall of 1948 that number had increased to 40,000 by successive orders-in-council. Thereafter the numbers continued to grow and restrictions against entry by others were relaxed through the late 1940's and 1950's. It is immigration policy and practice in the years up to 1949 that is here relevant since Mr. Odynsky came to Canada in 1949. |
| [52] As interest renewed in facilitating immigration to Canada in the immediate post-war years, there was concern that this be done without compromising internal or international security interests of the country, a concern heightened by cold war circumstances and by experience from the "Gouzento affair" in 1946. From 1946 the R.C.M.P. continued its general responsibilities for assessing security interests, including the security risk presented by prospective immigrants. Recommendations of a Security Panel, comprised of senior public servants concerned with security interests, were approved by the Ministers concerned. These recommendations led to the deployment of R.C.M.P. officers to various posts throughout western Europe to work with immigration and medical officers in screening applicants for immigration to Canada. |
| [53] Initially, the R.C.M.P. security officers in Europe operated on oral instructions of their superiors. The earliest document formally adopted setting out security screening criteria for potential immigrants is a memorandum from R.C.M.P. records, dated at Ottawa, November 20, 1948 entitled "Screening of Applicants for Admission to Canada".10 It provided: |
| Screening of Applicants for Admission to Canada |
| Any one or more of the following factors, if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission: |
| (b) Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (NON-Germans) |
| (c) Member of Nazi Party. |
| (d) Criminal (known or suspected). |
| (e) Professional gambler. |
| (g) Black Market Racketeer. |
| (h) Evasive and untruthful under interrogation. |
| (i) Failure to produce recognisable and acceptable documents as to time of entry and residence in Germany. |
| (j) False presentation; use of false or fictitious name. |
| (k) Collaborators presently residing in previously occupied territory. |
| (l) Member of the Italian Fascist Party or of the Mafia. |
| (m) Trotskyito or member of other revolutionary. |
| [54] In 1947 Cabinet had determined that security screening in Europe should be left to the R.C.M.P. and the latter determined that screening would be required of all displaced persons and all immigrants from certain designated countries, including Germany which was then still an enemy country. A later report11 to the Security Panel reported that the R.C.M.P. had implemented a policy for interviewing displaced persons in their camps, for examination of their papers, and for a search for any relevant records available to the R.C.M.P. from security sources. That report also noted that: |
| D.P.'s bearing the blood grouping tattoo of a Mazi (sic) Storm Trooper are rejected on security grounds. Likewise persons from German occupied countries known to have collaborated with the Nazi machine or served voluntarily with the German Forces are rejected.12 |
| [55] A later report to Cabinet, dated August 22, 1949, reported that displaced persons were screened by personal interviews, and were not given permission to enter Canada until they had been cleared for security.13 |
| [56] The process of screening conducted in the field was described to the Court by former Immigration Officers and a former R.C.M.P. officer who testified. They included Roger Martineau, Roger St.Vincent, Andrew Kaarsberg, all formerly of the immigration service, and Donald Cliffe, formerly of the R.C.M.P. Mr. Martineau was introduced to the process upon arrival in Germany in May 1948, and he served at Munich, working for five weeks at three camps for displaced persons in that area, including Funk Kaserne . He then served in Austria from June 1948 to August 1949 when he was transferred to Stockholm. Mr. St.Vincent served as an immigration officer, a team leader, at Karlsruhe, the Canadian immigration headquarters in the U.S. Zone of occupied Germany, and later in Austria. Mr. Kaarsberg went to Germany in December 1948, to Karlsruhe, and he went on to Munich in January 1949, where he was serving when Mr. Odynsky applied to and came to Canada. His signature appears on Mr. Odynsky's IRO identification and travel document, authorizing the Immigrant Visa Stamp, dated May 13, 1947, stamped on that document. |
| [57] Their evidence described the process each had followed, which, so far as they knew, was standard for processing applicants in western Europe for immigration to Canada. An applicant for immigration, having completed application forms, was invited for interview and examination. In the case of DP's living in camps, the immigration team, consisting of the immigration officer as head, an R.C.M.P. security screening officer, and a medical officer from National Health and Welfare Canada, made arrangements with the I.R.O., operator of the camps, to visit and examine applicants in the camps. Upon arrival for interview, an applicant would be interviewed by the R.C.M.P. officer and either "passed" or "not passed" security screening, sometime later referred to as "stage B". The applicant was then examined by the medical doctor and x-rays, provided by the applicant or arranged by the doctor, were examined before the applicant met with and was interviewed by the immigration officer. Only the immigration officer could approve the applicant for immigration to Canada, by affixing and signing the visa stamp to the applicant's passport or document for travel. |
| [58] All three immigration officers testifying before this Court professed no direct knowledge of the security screening officer's work, his concerns or his processes, but they all understood that his general role was to ensure there was no basis for concern about an applicant's past in relation to involvement with German forces, in major criminal offences, or in suspect political activities. Each of Messrs. Martineau, St. Vincent and Kaarsberg indicated they would not issue a visa if an applicant had not passed the prior security screening or medical assessment stages in the process. |
| [59] The work of the R.C.M.P. security screening officer was described by Mr. Cliffe, a security screening officer assigned to work in Italy in 1951 and later working in Germany and Sweden. He had started on the basis of oral directions and the 1948 statement of criteria. He had been introduced to the work by an experienced officer who had started screening prospective immigrants in 1948. Before an applicant for immigration was interviewed, the RCMP officer, known as a visa control officer, would have sought information about the applicant from police and security services. When interviewed, the applicant would first be seen by the R.C.M.P. visa control officer, then by others. Mr. Cliffe's evidence is that he always considered as most relevant for his purposes, information about what the applicant had done and where he had been for the past ten years, particularly during the war years. He sought information from intelligence and security agencies, and he questioned applicants on matters brought to his attention or that raised questions in his mind. If the security officer was not satisfied that an applicant presented no security risk the applicant would not pass the security screening stage. He confirmed his understanding that an applicant who did not pass "stage B", or security clearance, would not be granted a visa to come to Canada by an immigration officer. |
| [60] I return, briefly at this stage, to the evidence of Mr. Kaarsberg. He identified his signature authorizing the visa stamp, dated May 13, 1949, on the lower right corner of Mr. Odynsky's IRO Identification and Travel document. When asked whether this would mean that he saw Mr. Odynsky on that date, Mr. Kaarsberg said he could not be sure of that, but he was certain that either he saw him and passed his application or that another immigration officer had seen him and had approved the grant of a visa to him. Further, Mr. Kaarsberg testified that in either case he would have ensured that Mr. Odynsky had been cleared for security. If he had not been cleared, the visa stamp would not have been affixed and signed by Mr. Kaarsberg as the responsible immigration officer. |
| Mr. Odynsky's Evidence of his Admission to Canada |
| [61] Mr. Odynsky's evidence concerning his recollection of the processing of his application to come to Canada does not include or reflect the security screening process described by the plaintiff's witnesses. He testified at trial that before he applied to come to Canada he had completed no forms concerning, and he had not been asked any questions about, his experience during the war, when he surrendered at the American army camp for POWs at Eger in May 1945. Similarly, he had not been asked questions about his wartime activities when he was admitted to the displaced persons camps, at Gegengen, or at Somme Kaserne. At Eger he did turn in his German service book, and when admitted to the camp of Gegengen he did produce his discharge paper from the POW camp, his certificate from the Ukrainian committee in Augsburg, and his birth certificate. At Gegengen he was issued a DP card, essentially a card identifying him as a displaced person. He testified that he was not asked any question there except whether he was Ukrainian which he was able to establish with his birth certificate from his church at Beleluja, and the certificate from the Ukrainian committee at Augsburg. There was no formal admitting process at Somme Kaserne when he was relocated there from Gegengen. |
| [62] On one occasion in late 1946 or early 1947, a screening process was set up by the operating agency at Somme Kaserne, either UNRRA or the IRO, to assess why some of the residents did not want to return to their homelands. Mr. Odynsky was interviewed on that occasion by a team of an American officer, a civilian woman and an interpreter. He then produced his birth certificate and his DP Card and indicated he did not wish to return to Beleluja, Ukraine, because the area was under Soviet domination. He testified that he was not then asked questions other than what he intended to do if he did not return to his home. |
| [63] It was while he was at Somme Kaserne, in 1947, that he learned his family had been taken by the Soviets from Beleluja to the east. In 1948, at Somme Kaserne, Mr. Odynsky was arrested and thereafter detained for two or three months, as a result of his purchase of food for others, perceived by the authorities perhaps as black marketing activity. His detention in 1948 was served at a labour camp where he was visited from time to time by his prospective wife, now Mrs. Odynsky. After his release and return to Somme Kaserne they were married. Later in 1948, while they were still living at Somme Kaserne, it was announced that Canada, Australia, and Britain would be accepting displaced persons for resettlement. After discussing the matter they went to the camp office and asked to be registered to go to Canada. |
| [64] The office was staffed by Ukrainians, and one of the staff completed the form for application or registration which they believe was printed in English, a language which the Odynskys did not then speak or read. At trial Mr. Odynsky recalled showing their DP cards, but he does not remember producing other documents and he does not recall whether or not he signed any form. When asked what work he would seek in Canada he indicated farm work, and he explained his facility with that work from his home farm. He testified that he was not then asked what he had done or where he had been during the war years. He volunteered that he had relatives in Canada. The clerk who completed the forms did not review the completed forms with Mr. Odynsky. The Odynskys were advised that the forms would be sent to Munich, and they would be advised when a reply was received. |
| [65] Mr. Odynsky further testified that they waited about a month during which time they were moved with others to a camp at Leipheim. They were there when a reply to their application came. This instructed them to report early in May to Munich. He and Mrs. Odynsky travelled to Munich. The only documents he took with him were his birth certificate and his DP card. They reported to the office at another camp, Funk Kaserne, a camp designated for processing applicants seeking to be settled abroad. They were billeted at Funk Kaserne while their medical examinations were undertaken. They reported back to the office, as directed, where a staff member, who spoke Ukrainian, whom they had met on arrival, informed them of appointments for medical examinations. After separate medical examinations by an English-speaking doctor who worked with an interpreter fluent in Ukrainian, they were given appointments for x-rays, which were repeated for Mr. Odynsky, and the reports of those they returned to the camp office. They were told to remain at Funk Kaserne pending advice whether they would be accepted to come to Canada. Any forms completed at Funk Kaserne were filled out for them by office staff fluent in Ukrainian and English. In the latter language the Odynskys were not then literate. |
| [66] Mr. Odynsky testified that in the process of interview and examination at Funk Kaserne he was not, at any time, asked questions about his wartime service. Moreover, he testified that he was not interviewed by any Canadian officials, with the exception of the doctor whom he believes was Canadian. |
| [67] After a few days they received word that they were accepted and they were told to return to Leipheim pending further instructions about arrangements for travel to Canada. Not long after, word came for Mr. Odynsky to report again to Munich, ready to go to Canada, while Mrs. Odynsky was to remain at Leipheim until after her husband had completed half of a year's contract to serve as a farm worker in Canada. |
| [68] When he reported to Funk Kaserne at Munich, as directed, Mr. Odynsky says that he reported at the office which was crowded. He surrendered his DP card, and he was issued an IRO Identification and Travel document. When issued to him that document was stamped and dated with a visa stamp, and signed by an immigration officer, permitting him to enter Canada. His testimony is that he did not then complete any forms and he was not then asked any questions about his wartime activities or where he had lived during the war. |
| [69] After a few days at Munich, Mr. Odynsky travelled by train to Wildflecken, en route to Bremerhaven. There the group he was with waited for a few weeks, before moving on to Bremerhaven. There he boarded a ship, the S.S. General G.H. McRae, bound for Halifax. His testimony at trial is that at no time at Funk Kaserne on his second visit there, or before boarding the ship, or on his way to Canada, did he have any contact with Canadian officials. Upon the ship's arrival at Halifax, passengers remained on board for two days during which a person in civilian clothes processed the papers of the passengers. Mr. Odynsky's testimony is that he handed his papers to the official who stamped them and asked where he wished to go. He says he was not asked any question about his wartime experience. He indicated his preference to go to the Toronto area, and after he was landed at Halifax on July 3, 1949, he boarded a train for Toronto. |
| [70] Another version of Mr. Odynsky's story was told by him to officers from the R.C.M.P. and the Department of Justice, who called at his home and asked to interview him on August 26, 1997, not quite a month before the Notice of Revocation was sent to him by the Minister. The officers had arrived without prior notice and when they called at the house, they identified themselves to Mrs. Odynsky at the door and indicated they wished to ask Mr. Odynsky about his immigration to Canada nearly 50 years before. Mr. Odynsky agreed to be interviewed, and he agreed that the interview might be recorded on tape. The tape, a transcript produced from it, and copies of documents produced by the R.C.M.P. officer at the interview were all in evidence at the hearing, along with documents which the R.C.M.P. officer, Corporal Fnukal, had then or which Mr. Odynsky produced on that occasion. In addition, the officers involved testified at trial. |
| [71] In the course of the interview in August 1997, in response to questions about the IRO arrangements to assist Mr. Odynsky to come to Canada, Mr. Odynsky volunteered that he had given information to the IRO about his wartime activities, advising the I.R.O. that he had worked on farms, working on one farm before moving on to another, gradually working his way to the west. Thus he said he worked through Poland, Czechoslovakia and then into Germany, where he was at war's end. There he had remained for four years in DP camps. He also acknowledged at that interview that he expected any information given to the I.R.O. would have been passed to Canadian authorities when he applied to come to Canada. |
| [72] Further, when the R.C.M.P. officer showed him a list of some members of Battalion Striebel, which included the name "Odynskyj, Wasyl", Mr. Odynsky denied that he had heard of the battalion and denied it was his name. At the interview in August 1997 he denied he had been at Trawniki or Poniatowa. He said he had only heard of Trawniki in connection with news coverage of the Deschenes Report some years earlier and that he had not heard of Poniatowa. When shown a copy of the document Personalbogen Nr. 3337, said to be from Trawniki, he did not admit it related to him or that the photograph was of him. When shown a copy of an "A.E.F.D.P." record concerning one "Wasyl Odynskyj" which contained a notation "Arrested....48", he denied the document had been seen by him before and he denied he had been arrested in 1948. |
| [73] In cross-examination before trial and direct examination at the trial, Mr. Odynsky admitted quite openly that his explanation of his life in the war years, given when he was interviewed in August 1997, was false. He professes he was fearful and did not know what to do at the time. I note that his responses to questions in that interview session with the R.C.M.P. officer were not given under oath. His testimony in discovery and at trial was sworn to be true. He was not cautioned in August 1997 that anything he said might be used in evidence in proceedings to revoke his citizenship. |
| [74] I turn next to review the circumstances of Mr. Odynsky's obtaining Canadian citizenship. |
| The Circumstances of Mr. Odynsky's Obtaining Citizenship |
| [75] In July 1955, after more than five years in this country Mr. and Mrs. Odynsky applied for Canadian citizenship. While neither of them recalls with certainty, they believe that they attended at Toronto's old City Hall to obtain application forms. Neither of them read English then and they had assistance in completing the forms. Whether that was provided at City Hall or by friends after they had returned home, is among details no longer recalled. |
| [76] For Mr. Odynsky it is argued that the plaintiff must establish, in relation to his acquisition of citizenship, that he lied or that he knowingly concealed his war time activities from Canadian officials, that those activities were material to the process of acquiring citizenship, and that he knew they were material. |
| [77] It is further urged that the plaintiff Minister has not adduced any evidence of the process followed in 1955, either in relation to citizenship proceedings generally or in dealing with Mr. Odynsky's application, and that there is no evidentiary basis for the Court to find that the defendant lied or misrepresented any material facts. |
| [78] There is, however, evidence of the process, upon which the plaintiff relies, in addition to the statutory provisions then applicable. That evidence is the copies of documents concerning Mr. Odynsky's application for citizenship. Also in evidence before the Court is the testimony of Mr. Odynsky, both in discovery and at trial and of Mrs. Odynsky at trial. |
| [79] Those documents14 included the application for citizenship, submitted by Mr. Odynsky, and the Decision of the Court signed by a Citizenship Judge with a certificate of the Court Clerk dated October 28, 1955 that the applicant was found to be qualified for Canadian citizenship. The October date was apparently the date when the Odynskys, having been summoned, appeared before the judge and responded to questions about Canada, for that is the date of the Court Clerk's certificate that the Citizenship Judge found the applicant to be qualified for citizenship. The form Decision of the Court, on the same page as the Clerk's certificate, has check marks indicating, inter alia, that Mr. Odynsky "has . . . . acquired Canadian domicile" and "is . . . . of good character". The other documents before the Court, all dated December 5, 1955, include a copy of his certificate of citizenship; a written oath of allegiance and a declaration of renunciation of allegiance to any foreign state, both signed by Mr. Odynsky; and his application for a miniature certificate of citizenship. |
| [80] I note that of those documents only the applications for the certificate and for the miniature certificate specifically request information, and neither asks about his war time activities, or about his domicile except his future intention, or about whether he was of good character. In discovery, the representative of the Minister acknowledged that it was not claimed that anything the defendant attested to in his application was wrong, and in it Mr. Odynsky had not been asked, and he had made no representation, about his character. That acknowledgment did not imply that the Minister conceded that Mr. Odynsky was of good character, rather that assessment should be made taking account of the circumstances of his admission to Canada. |
| [81] The evidence of Mr. Odynsky is that he was not asked, in the course of applying and processing of his application for citizenship, any questions concerning his activities during the war. No such questions appear on the forms and both he and Mrs. Odynsky testified they were not asked such questions when they appeared before the Citizenship Judge. They each recall being asked questions about Canada and Mrs. Odynsky remembers the judge chatting with her eldest child, then a little girl, who had accompanied her parents to the Court. |
| [82] The 1952 Act, applicable in 1955, set out requirements for acquisition of citizenship, under s-s. 10(1), and it defined domicile. So far as those provisions are relevant here, they were: |
| 10. (1) The Minister may in his discretion, grant a certificate of citizenship to any person who is not a Canadian citizen and who makes application for the purpose and satisfies the Court that,
. . .
(b) he has been lawfully admitted to Canada for permanent residence therein;
(c) he has resided continuously in Canada for a period of one year
immediately preceding the date of the application and, in addition, except where the applicant has served outside of Canada in the armed forced of Canada during time of war or where the applicant is the wife of and resides in Canada with a Canadian citizen, has also resided in Canada for a further period of not less than four years during the six years immediately preceding the date of the application;
. . .
|
10. (1) Le Ministre peut, à sa discrétion, accorder un certificat de citoyenneté à toute personne qui n'est pas un citoyen canadien, qui en fait la demande et démontre à la satisfaction du tribunal,
. . .
b) qu'elle a été licitement admise au Canada pur y résider en permanence;
c) qu'elle a résidé continûment au Canada pendant un an immédiatement avant la date de sa demande et qu'en outre, sauf si la personne qui présente la demand a servi hors du Canada dans les forces armées du Canada en temps de guerre, ou si elle est l'épouse d'un citoyen canadien et réside avec lui au Canada, elle a résidé au Canada durant une période supplémentaire d'au moins quatre ans au cours des six années qui ont immédiatement précédé la date de la demand;
. . .
|
| 2(j) "domicile" to the purposes of this Act, means the place in which a person has his home or in which he resides and to which he returns as his place of permanent abode and does not mean the place where he resides for a mere special or temporary purpose, and "Canadian domicile" means such domicile maintained in Canada for at least five years;
|
2j) "domicile", aux fins de la présente loi, signifie l'endroit où une personne a son logis ou dans lequel elle réside et auquel elle retourne à titre de demeure permanente, mais ne signifie pas l'endroit où elle réside pour une simple fin spéciale ou temporaire; et l'expression "domicile canadien" désigne un tel domicile maintenu au Canada durant au moins cinq ans;
|
| [83] Under the Immigration Act applicable in 195515, when Mr. Odynsky was granted Canadian citizenship, "Canadian domicile" was defined in part as follows: |
| 2(e) "domicile" means the place in which a person has his home, or in which he resides or to which he returns as his place of permanent abode, and does not mean the place where he remains for a mere special or temporary purpose:
(i) Canadian domicile can only be acquired, for the purposes of this Act, by a person having his domicile for at least five years in Canada after having been landed therein within the meaning of this Act . . .
|
2f) "domicile" signifie l'endroit où une personne a sa demeure, ou dans lequel elle réside, ou auquel elle retourne comme au lieu de son habitation permanente, et ne signifie pas l'endroit où elle réside pour un objet particulier ou temporaire;
(i) Le domicile au Canada ne peut s'acquérir, pour les fins de la présente loi, que par un séjour d'au moins cinqu ans au Canada par une personne qui y est débarquée aux termes de la présente loi . . .
|
| [84] In 1949, when the defendant was granted landed immigrant status at Halifax on July 3, the Immigration Act then applicable16, defined "landed" as follows: |
| 2(l) "land", "landed" or "landing", as applied to passengers or immigrants means their lawful admission into Canada by an officer under this Act, otherwise than for inspection or treatment or other temporary purpose provided by this Act.
|
2e) "débarquer", "débarqué" ou "débarquant", appliquée à des voyageurs ou passagers ou à des immigrants, signifie leur admission légale au Canada par un fonctionnaire, sous le régime de la présente loi, autrement que pour subir l'examen ou un traitement ou pour autre fin temporaire prévue par la présente loi;
|
| [85] Whether the defendant had acquired Canadian domicile when he applied for citizenship in 1955 is disputed by the plaintiff on the basis that his admission to Canada in 1949 was not lawful, in accord with the Immigration Act as it then applied, and thus his arrival could not be the commencement of the five year period then required for Canadian domicile under that Act. I return to assess this argument in connection with consideration of the circumstances of Mr. Odynsky's admission to Canada in 1949. For now I return to consideration of the submissions of the parties in regard to the issue of whether Mr. Odynsky misrepresented or knowingly failed to reveal relevant facts in the process of obtaining citizenship, apart from any issue arising from his earlier admission to Canada. |
| [86] The process for dealing with applications for citizenship applicable in 1955 was set out in Part IV of the 1952 Act as amended.17 The defendant submits that there is no evidentiary basis to conclude that he misrepresented or knowingly concealed his war time activities in the process of obtaining citizenship. In accord with s. 29 of the 1952 Act he had the responsibility to "produce to the Court such evidence as the Court may require that he is qualified and fit to be granted a certificate under this Act . . . .". Unless he was required by the Court to disclose his war time activities, he had no duty to do so18. There is no evidence that in 1955 Citizenship Courts required such information and it is Mr. Odynsky's evidence that he was not asked any questions about his wartime activities when he appeared. |
| [87] The plaintiff argues that the Court should apply the principle of omnia praesumntur rite esse acta, that is, that the acts of a public officer are presumed to be regularly performed unless proven otherwise. Under that principle, this Court should infer from the record of decision of the Citizenship Judge, whose duty it was to inquire, that the Judge would have asked questions about the defendant's wartime activities, about his Canadian domicile, and about his character. It is urged that his war time activities and his failure to disclose them in seeking to come to Canada, and later in seeking Canadian citizenship meant that he was not a person of good character. |
| [88] Mr. Odynsky testified that he could not remember whether he was asked by the Citizenship Judge whether he was a person of good character. He further testified that he had not been asked about his wartime years by the judge in 1955. While good character was not defined by legislation or regulation, it is the plaintiff's submission that the requirement would have been known to Mr. Odynsky, despite his difficulty with English, from material available to him when he applied for citizenship. Further the plaintiff urges that he would have been asked questions by the Citizenship Judge who noted that he was of good character, and that this could not be true in view of Mr. Odynsky's wartime activities. That conclusion, based upon inferences drawn by the plaintiff, in my opinion is not warranted on the basis of the evidence before the Court. There was no evidence of the process of the citizenship courts generally in 1955, or of the court which approved Mr. Odynsky's application for citizenship. |
| [89] There was evidence at the hearing of this reference, uncontested by counsel for the Minister, from representatives of the Ukrainian community and Mr. Odynsky's priest, of the defendant's contribution to his community and his church, and of his general good character as the witnesses perceived it, when he obtained citizenship and today. |
| [90] In my opinion, on the evidence before me, apart from issues arising from the defendant's admission to Canada in 1949, I conclude that there is no evidence that he misrepresented, or knowingly concealed, facts about which he was asked and which were material to the process of obtaining Canadian citizenship in 1955. |
| [91] Four legal issues of significance raised in this case require resolution. It seems appropriate to deal with these before considering further the circumstances of Mr. Odynsky's admission to Canada and whether those are relevant to his acquisition of citizenship. These issues concern |
| i) The scope of the Notice of Revocation, |
| ii) The application of s. 10 of the Act, |
| iii) The authority to reject prospective immigrants on security grounds, and |
| iv) The interpretation of "knowingly concealing material circumstances" as used in ss. 10 and 18 of the Act. |
| The scope of the Notice of Revocation |
| [92] For the defendant it is submitted that the Notice of Revocation is to be read as alleging that he lied about or knowingly concealed |
| 1. his collaboration with German authorities; and |
| 2. his engagement in activities connected with forced labour and concentration camps during 1943-44 as a guard at the Trawniki Training Camp and the Poniatowa Labour Camp in Poland, and |
| 3. that he did so to both Canadian immigration officials and citizenship officials. |
[1] It is the defendant's view that the plaintiff has not proved any of these allegations, all of which, in his view, must be established if his conduct is to be brought within the ambit of the Notice. In particular, it is urged that the plaintiff must prove that the defendant lied about or knowingly concealed material circumstances from both Canadian immigration and citizenship officials.
[2] It may be useful to repeat the allegations as set out in the Notice of Revocation. After referring to the relevant statutory provisions under which the Notice issued, it provides the grounds for the Minister's proposed action in these terms:
. . . that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, in that you failed to divulge to Canadian immigration and citizenship officials your collaboration with German authorities and your engagement in activities connected with forced labour and concentration camps during the period 1943-1944, as a guard at the Trawniki Training Camp and later at the Poniatowa Labour Camp, in Poland.
[3] In a ruling rendered during hearing of this matter, this Court ruled that the phrases ". . . your collaboration with German authorities" and ". . . your engagement in activities connected with forced labour and concentration camps during the period 1943-1944 as a guard . . . ." "are to be read disjunctively and that each allegation can be read as independent of the other".19 In another ruling, this Court held that the Notice of Revocation provides ". . . the framework for the Court's assessment of the Minister's request for a reference . . . ." which is ". . . significant in defining, albeit in brief terms, the basis of the Minister's decision to seek revocation . . . .", subject to amplification as to particulars, within the ambit of the Notice, set out in the Statement of Facts and Evidence of the Minister, now the Statement of Claim under the Court's Rules.
[4] For the defendant it is urged that the Notice of Revocation is to be construed strictly and that this Court, by its previous rulings, has so indicated. On the basis of such a construction it is the defendant's view that the plaintiff has failed to prove any of the allegations contained in the Notice. On the other hand, the plaintiff urges that the Notice is not to be interpreted literally as requiring that all the allegations contained in it be proven. As in the case of a criminal prosecution, it is urged by the plaintiff that it is sufficient if one of the charges in an indictment, or in this case one of the grounds in this Notice, is established. While I agree with the defendant that principles of criminal law are not here applicable, I am not persuaded that the Notice is to be interpreted as literally as the defendant urges or that every detail of fact alleged in the Notice must be established by the plaintiff Minister in this reference proceeding.
[5] The Notice is not a statute. In my view, it is to be interpreted reasonably, bearing in mind the purpose for the Notice, as provided in s. 18 of the Citizenship Act, that is, defining in very brief and summary terms the basis of the Minister's determination to seek revocation of citizenship. The notice is to be appropriate for providing fair advice to the recipient of the ultimate case he has to meet, the details of which are then set out in the Statement of Fact and Evidence, or under the current Rules, a Statement of Claim, and these may be further particularized or elucidated through discovery under the Court's Rules for actions.
[6] Thus, I am not persuaded that the Minister must here prove that the defendant lied to, or knowingly concealed material circumstances from, both Canadian Immigration and Citizenship officials, or that establishing that this was done in relation to one, but not both, of these officers would constitute an amendment to the terms of the Notice. If it be proven that the defendant did as alleged to one but not both of those officers, the Immigration Act, or the Citizenship Act may be applicable to determine the legal consequences, and those Acts are not dependant upon the wording of the Notice of Revocation. Similarly, I am not persuaded that in this case the Minister is required to establish that the defendant was engaged in activities connected with both forced labour and concentration camps during the period 1943-44. If there is a distinction drawn between those camps as operated by the SS in Eastern Europe it is not a distinction of relevance here.
[7] In my opinion, in this case there is no doubt that the Notice provided sufficient and fair warning of the ultimate issue on which the Minister's proposed action was based. From the beginning the parties have adopted different positions concerning the significance of the Notice and its interpretation. Those differences were evident in argument on the defendant's application, after the decision in Dueck was issued, for preliminary determination of a question of law before trial, a motion which I dismissed for reasons then given.20 The difference was clear as well from the opening statements of each of the parties when their respective cases were opened at trial, and it is reflected in their respective arguments.
[8] Interpreting the Notice, as I do, in less literal terms than the defendant urges, in my view requires that in all cases where the word "and" is used in the Notice the phrases or words it connects are to be read disjunctively. This means not only, as previously ruled, that the phrases "collaboration with German authorities" and "your engagement in activities connected with forced labour and concentration camps" are to be read disjunctively. So also are the words "Canadian Immigration" and "Citizenship Officials", as well as the words before and after "and" in the phrase "forced labour and concentration camps . . . .", and in the phrase "at the Trawniki Training Camp and later at the Poniatowa Labour Camp . . . .".
[9] These are not criminal proceedings and as in any other civil proceeding where the Court's primary task is to make a finding of facts, the plaintiff Minister is required to establish those facts on a balance of probabilities. It is for this Court to determine whether facts are established and are sufficient, within the terms of the Notice, to warrant the declaration the Minister seeks. That may be warranted without requiring that all possible factual grounds referred to in the Notice of Revocation be established.
[10] I turn to issues specifically raised by the defendant in relation to the ambit of the Notice of Revocation. First it is said that the plaintiff has not proven that the defendant was a collaborator. It is urged that the plaintiff must prove there was a definition of this term that was accepted, understood, and uniformly applied by Canadian immigration officials at the time the defendant came to Canada, and by Canadian citizenship officials at the time he was granted citizenship. Further, it is urged that the plaintiff must prove that the defendant engaged in activities that constituted collaboration in order to bring his activities within the definition. In discovery of the plaintiff's representative it was admitted that there was no known definition of the term collaborator adopted in Canadian policy or practice in the immediate post-war years and that it is not now known how the term was interpreted and applied in Munich when the defendant's visa was issued in 1949. In the course of the hearing I ruled that in light of these admissions the plaintiff could not introduce contrary evidence through Mr. Donald Cliffe, an RCMP visa control officer who served in Europe somewhat later, commencing in 1951.
[11] There is, however, other evidence before the Court of the way in which the term was used, apparently widely, in the immediate post-war years, and about the significance of involuntary service. The use of that term by Canadian and other officials in the post-war years appears in a number of documents before the Court, including the following as examples.
| 1. A record dated February 14, 1946, of an Informal Departmental Meeting on Immigration Matters which includes a reference under the heading "Security" to aspects of immigration in the following terms: |
| 1. The meeting considered that the following activities would be evidence of an unsatisfactory security background: |
| (a) collaborating with the enemy during the war of 1939-4521 |
| 2. United Nations Relief and Rehabilitation Administration, 4th session of the Council, 2nd Report of the Ad Hoc Committee on Policy (Adopted March 28, 1946) included reference to an amended Resolution No. 71, paragraph 2(a) to read (in part): |
| . . . in cooperation with the occupying authorities . . . . the administration will take immediate measures to withdraw its assistance from those displaced persons who have been determined by the military authorities to have collaborated with the enemy or to have committed crimes against the interests or nationals of the United Nations, whether or not such persons are detained in custody.22 |
| 3. Instruction No. 1, entitled "Procedure in Handling Alien Immigration", dated Apr. 15, 1947, Department of Mines and Resources, Immigration Branch [Canada] includes the following references: |
| Persons who have served the enemy in any capacity are not eligible for admission . . . . |
. . .
. . .
| A. Displaced Persons, in Germany, Austria, Italy |
. . .
| The Inter-governmental Committee on Refugees have agreed to assemble displaced persons coming within their mandate for examination by Immigration Teams that are being sent to the occupied countries for this purpose and to arrange for the transportation of those granted visas. The mandate of the I.G.C.R. does not cover nationals of enemy countries . . . . prisoners of war in allied hands regardless of nationality, war criminals, quizzlings or traitors or any persons who have assisted enemy forces or those who have fled from Germany or into Germany from their places of residence in order to avoid falling into the hands of allied armies, etc.23 |
| 4. Memorandum for the Security Panel: Security Screening of Prospective Immigrants, March 30, 1948, from the RCMP to the Privy Council, includes the following reference: |
| Storm Troopers and collaborators, D.P.'s bearing the blood grouping tattoo mark of a Mazi [sic] Storm Trooper are rejected on security grounds likewise persons from German-occupied countries known to have collaborated with the Nazi machine or served voluntarily with the German forces are rejected. 24 |
| 5. Letter dated April 26, 1948, from the Commissioner, Overseas Service (Immigration) to the A/Superintendent of European Emigration for Canada, London England, regarding "Ukrainians who have served in the Enemy Forces": |
So far as Ukrainians on the Continent are concerned, we are to be governed by the existing policy, namely, where such persons have served in the Enemy Forces, they will be refused visa if service was voluntary but if they served with the Enemy Forces under compulsion, such service will not be considered a cause for rejection. ... This is the procedure we have been following.25
[Note: The text quoted from the letter closely follows the text of a memorandum for file by Mr. A. L. Joliffe, Director of Immigration, dated April 15, 1948. In discovery the Minister's representative admitted that from at least April 15, 1948 to the end of 1949 service of Ukrainians with enemy forces under compulsion would not be considered a ground for rejection. The admission noted that R.C.M.P. found the policy difficult to administer in the field.26 ]
6. The memorandum of the RCMP dated November 20, 1948 setting criteria for screening out unsuitable applicants for immigration, as we have seen, included reference in clause (k) to "collaborators presently residing in previously occupied territory".27
[12] In addition, the Court heard evidence of expert witnesses, historians, about their understandings of the use of the term collaborator in the immediate post-war years. Dr. Golezewski understood the word "collaborate" had come to mean to cooperate with the enemy whether or not one condoned their acts, because it was in the best interests of one's own group or nation. He agreed that collaboration was a voluntary act.28
[13] Dr. Arad agreed that collaboration would be a voluntary or willing act,29 and Dr. Subtelny understood collaboration to mean the "voluntary cooperation of individuals or organizations with the enemy against the interests of their community, their nation, their state".30 On the basis of this evidence the defendant submits that the plaintiff must establish that the defendant's service with the Germans was voluntary, or she will have failed to prove the defendant could have been considered a collaborator.
[14] In the course of discovery the plaintiff's representative admitted that the defendant's initial recruitment into the service of the Germans was not voluntary and further, that he did not go to Trawniki or Poniatowa voluntarily. Those assessments were supported by evidence heard from witnesses in Beleluja and from the defendant himself.
[15] For the plaintiff it is urged that the defendant's failure to escape from his service as a guard or his later service with Battalion Striebel, particularly after the Russians had reoccupied western Ukraine including the area of Beleluja, meant that his service was voluntary from that time forward. I am not persuaded that this is the case. Mr. Odynsky's evidence is that he did not escape at any time because of his understanding that unsuccessful attempts to escape would result in death or severe punishment, and if he did escape and were not captured, his family would be sent to a concentration camp or worse. Moreover, there is no evidence before the Court as to when he might have known, in the last months of the war, that Russians had reoccupied the region of Ukraine where Beleluja is located.
[16] In support of the Minister's argument, the plaintiff introduced a number of documents said to be German personnel forms indicating that other Ukrainians had escaped during the period following the "Harvest Festival" massacre. Like much other documentary evidence this had been produced from archival sources in Europe and while the original documents may well have been German documents produced in the ordinary course of record keeping, no evidence was adduced concerning their significance. Nor was any evidence adduced concerning what might have happened to those who were said to have been recorded as having escaped. The defendant's evidence was that he had no knowledge of any of the people referred to in these documents and that he was unaware of any guard ever escaping. In my opinion, the evidence referred to by the plaintiff does not warrant the inference that the defendant's fear of harm to himself or to his family if he were to escape was unreasonable, or that his continuing service, for which he had been involuntarily conscripted, became voluntary service at some undetermined time during the war.
[17] Finally, the defendant urges that there was no evidence of specific activities by him as a camp guard or with Battalion Streibel which would bring him within the terms of the Notice of Revocation. It is urged that the plaintiff's case cannot hang simply on his presence at those labour camps nor that he was simply a guard nor that he was a member of an auxiliary unit under command of German police authorities, for the Notice does not specifically allege any of these things. However, counsel for the plaintiff urges that she relies on the totality of the functions and duties or activities that Mr. Odynsky performed and carried out while serving as a guard at the camps and his service with Battalion Striebel, both of them directed by the SS, which bring him within the ambit of the Notice.
[18] I agree that there is no evidence of specific activity engaged in by the defendant while serving as a guard or otherwise, except for his own testimony, supported by that of his former colleagues at Trawniki and Poniatowa who testified in Beleluja. His activities included training at Trawniki and serving as an armed guard around the perimeter of the Seidlung at Poniatowa and at its entrance along the roadway to the main camp and he also served as an armed guard for the facilities and supplies of that camp and at Trawniki. In my opinion this clearly brings the defendant's activity within the ambit of the Notice concerning "activities connected with forced labour camps" in which he was engaged in the period 1943 to 1944 as a guard at Trawniki and Poniatowa.
[19] It is worth note that there was no evidence before the Court of any particular activity of Mr. Odynsky that could be characterized as brutal or criminal, or as directly threatening to any individual. Service with Battalion Striebel is not a separate basis for revocation, except as it may be considered service as a "member of the SS" or as "collaboration", alleged in the Notice of Revocation. Unless it be considered as service of those kinds specified, service with that battalion is not within the terms of the Notice. I note there is little evidence of the activity of that battalion before the Court, and none of any action involving Battalion Streibel against partisans or United Nations forces.
[20] I return to the assessment of Mr. Odynsky's wartime service in light of the Notice of Revocation and of the R.C.M.P. security screening criteria applied in 1949, after considering the remaining significant legal issues.
The application of s. 10 of the Act
[21] For the defendant, counsel submits that s. 10 of the Act is not applicable in this case for a variety of reasons.
[22] First, it is urged that the Act completely revised Canada's citizenship law when it was enacted as S.C. 1974-75-76, c. 108, which it is said, introduced this provision as s. 9, now s. 10 of the current Act, for the first time. Based on this perception it is said that s-s. 10(1) by its express terms is limited to persons who "obtained, retained or resumed citizenship under this Act" (emphasis added). Thus, since the defendant obtained citizenship before 1976 s. 10 has no application to him, and the presumption in s-s. 10(2) cannot be applied to the defendant's case since he acquired citizenship in Canada prior to enactment of the statute.
[23] Second, the defendant submits that in any event s-s. 10(2) is not applicable to his case. It is said that the defendant's substantive rights as a citizen in respect of the obtaining or retaining of his citizenship are governed by the law in effect when it was obtained. Counsel cites Luitjens31 as authority for this and refers to the principle that the existence and content of defences are considered substantive rights and are not to be affected by amending legislation that would alter the legal significance of the facts of a case. Thus, it is urged that the enactment of s-s. 10(2) in the mid-1970's cannot adversely affect the substantive rights of the defendant. In written submissions it is urged that the deeming provision of s-s. 10(2) effectively removes the burden on the Minister to prove false representation, fraud or knowing concealment at the citizenship application stage, "in effect (depriving) the defendant of this defence" and diminishing "the substantive rights of a citizen by making citizenship contingent and subject to revocation upon proof of false representation, fraud or knowing concealment at the time of a decision".32
[24] I am not persuaded that the application of s. 10 is to be determined on these grounds urged by the defendant. The enactment of S.C. 1974-75-76 merely brought into force a revised Citizenship Act, replacing the Canadian Citizenship Act enacted as R.S.C. 1970, c.C--19. The latter Act may be traced to an earlier Citizenship Act, i.e., R.S.C. 1952, c. 33, and to the original Citizenship Act, S.C. 1946, c. 15. Within the 1952 Act, applicable in 1955, s-s. 19(1)(b) provided, in part:
| 19. (1) The Governor in Council may, in his discretion, order that any person other than a natural-born Canadian citizen shall cease to be a Canadian citizen if, upon a report from the Minister, he is satisfied that the said person either
. . .
(b) has obtained a certificate of naturalization or of Canadian citizenship by false representation or fraud or by concealment of material circumstances.
|
19.(1) Le gouverneur en conseil peut, à sa discrétion, ordonner qu'une personne, autre qu'un citoyen canadien de naissance, cesse d'être un citoyen canadien si, sur un rapport du Ministre, il est convaincu que ladite personne
. . .
b) a obtenu un certificat de naturalisation ou de citoyen-neté canadienne par fausse déclaration, fraude, ou dissimulation de faits importants;
|
The 1952 Act then set out a process for prior notice to the person to be affected, for an opportunity for that person to request an inquiry to consider the case, and for an inquiry by a commission appointed by the Governor in Council, or by the superior court of the province in which the person affected resided, as the Governor in Council might determine, rather than by proceedings in this Court. A similar provision was included in the Acts of 197033 and 194634.
[25] Subsection 19(1)(b) of the 1952 Act, in force when Mr. Odynsky obtained citizenship, is obviously a forerunner of s-ss. 10(1) and 18(1) in the current Act, the only subsequent changes being to require, initially in the Act as enacted in 1974-75-76, that concealment of material circumstances be done knowingly and to provide that a reference by the Minister be made to this Court if requested by the person affected. 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.
[26] 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.35 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.
[27] Further, under the Interpretation Act, R.S.C. 1985, c. I-21, paragraph 44(d), the provisions of s. 10 are to be given effect insofar as they concern procedure for dealing with matters that have occurred before the enactment of the amending Act.
[28] It is urged for the defendant that s-s. 10(2) is not applicable to his case since the provision is said to adversely affect his substantive rights. The parties are agreed that if the provision is deemed procedural it would be applicable to the defendant's case. It was held to be applicable in generally similar circumstances in Bogutin and in Katriuk, yet counsel for the defendant urges that this was done per in curiam, without benefit of argument or discussion concerning the applicability of s-s. 10(1) of the Act. Since, in my opinion s-s. 10(1) is applicable to the defendant's case, in essence carrying on the basic process for revocation of citizenship much as it was under previous Acts, this argument of the defendant is not persuasive.
[29] Moreover, I note that in Oberlander36 this Court dealt with this issue and there held that s-s. 10(2) was properly classified as an enactment concerning procedure, introducing a presumption as an evidentiary rule in proceedings that related to revocation of citizenship. As I read the decision in Luitjens, contrary to the defendant's reading of that case, Mr. Justice Collier there held that the provisions of the current Act in relation to revocation are procedural, and thus are applicable to any revocation proceedings commencing after the enactment of s-s. 10(2) in the mid-1970's, regardless of when citizenship was acquired.
[30] There are two other reasons why I conclude that the defendant's argument about the applicability of s-s. 10(2) is not persuasive. The first is that the acquisition of citizenship by one not born in Canada is a privilege,37 not a right, and Parliament, having established the basis for acquisition of the privilege, may also provide a basis and a process for withdrawing the privilege, at least within limits provided by the Charter of Rights and Freedoms, limits not here raised.
[31] Further, it is clear, as I see it, that s-s. 10(2) does not deprive the defendant of any substantive defence that would have been available to him under the previous Act before s-s. 10(2) was enacted. Under paragraph 19(1)(b) of the 1952 Act a person admitted to Canada who obtained a certificate of naturalization or of Canadian citizenship by false representation or fraud or by concealment of material circumstances was exposed to possible loss of citizenship, subject to an inquiry if one were requested. In my opinion, the application of s-s. 10(2) does not adversely affect a defence available under the 1952 Act which applied when Mr. Odynsky became a citizen. False representation or concealment of material circumstances has long been a ground for deportation of a non-citizen and for revocation of citizenship of other than those who are natural born citizens. The grant of citizenship was based in part on domicile in the mid-1950's and domicile was not considered to commence unless an immigrant was landed, in accord with the requirements of the Immigration Act.
[32] In Bogutin, Katriuk, Kisluk, Luitjens and Oberlander, all cases concerned with the application of s. 10 of the Act, s-s. 10(2) has been held to be applicable in a situation such as that dealt with here. I am not persuaded on the basis of the defendant's argument to depart from that line of authority. As in Oberlander, and for similar reasons, I find it is applicable to the defendant in this case. The provision is procedural. If the Minister establishes that Mr. Odynsky was admitted to Canada in 1949 on the basis of misrepresentation or fraud or knowingly concealing material circumstances, she then has the benefit of the statutory presumption, i.e., citizenship subsequently acquired because of that admission is considered to be acquired by reason of false representation, fraud, or knowingly concealing material circumstances.
The Authority to Reject Prospective Immigrants on Security Grounds
[33] The parties differ on the implications of other decisions in recent revocation cases that dealt with the source of the government's authority, if any, to impose security screening for admission of immigrants in the early post-war period, up to 1950.
[34] The first of the issues is whether there were any regulations under the Immigration Act in 194938 to authorize security screening. In Dueck,39 Mr. Justice Noël found that the first regulation under that Act to authorize security screening, said to have been in place since at least 1946, was P.C. 2856 adopted June 9, 1950, pursuant to s-s. 38(c) of the Immigration Act. That regulation conferred upon the Minister discretion to refuse landing to an apparently suitable immigrant who is "undesirable owing to his peculiar habits, customs, modes of life, methods of holding property or because of his probable inability to be . . . . integrated into the life of a Canadian community . . . .".
[35] In so finding, Noël J. cited the decision of Mr. Justice McKeown in Bogutin, who found, on the evidence before him, that in 1946 the Government of the day, by express decision of Cabinet, had opted against enacting legislation or regulations to authorize security screening and had decided instead to deal with the matter by departmental administrative action.40 In the view of Noël J. earlier Orders-in-Council were not considered by Cabinet as providing the necessary authority for security screening. In Dueck, Noël J. had no doubt that P.C. 2856 was adopted in 1950, at least in part, to provide legal authority by regulation, for rejection of prospective immigrants on security grounds.41
[36] This conclusion, that the enactment of P.C. 2856, was the first regulatory authorization, under the Immigration Act of 1927 and the Orders-in-Council enacted thereunder, to refuse entry into Canada of prospective immigrants on security grounds, was agreed with by Mr. Justice Nadon, in Katriuk.42
[37] In Kisluk43 Mr. Justice Lutfy, as he then was, found that authority to deny admission to Canada on security grounds could be found in certain Orders-in-Council including P.C. 695 of March 21, 1931 and P.C. 4849 of November 26, 1947, each of which precluded the landing in Canada of immigrants of all classes and occupations other than those individuals within specified exceptions whom an immigration officer might permit to land, for permanent residence, in Canada. The first of these orders was clearly enacted to preclude immigration in the circumstances of the Great Depression of the 1930's. The second order consolidated changes that had been introduced up to 1947 in the relatively few exceptional classes who by then were admissible. Those exceptions included alien persons who served in the Canadian armed forces, those who had arrived in Canada as refugees during the war, persons (other than enemy aliens) with close relatives in Canada as sponsors, and labour categories with assured employment. Other Orders-in-Council, in June, July and October of 1947, and in April, September and October of 1948, specifically related to displaced persons then in I.R.O. camps in Europe. These authorized the admission of some 40,000 displaced persons in total.
[38] Mr. Justice Lutfy in Kisluk referred to the opening paragraphs of P.C. 695 and P.C. 4849 (as well as two others adopted after 1949) which each provided that:
. . . until otherwise ordered the landing in Canada of immigrants of all classes and occupations, is hereby prohibited, except as hereinafter provided:
The Immigration Officer-in-Charge may permit to land in Canada any immigrant who otherwise complies with the provisions of the Immigration Act, if it is shown to his satisfaction that such immigrant is . . . . [a person within a prescribed class].44
[39] In the view of Lutfy J., these orders, with the blanket prohibition in the opening paragraph together with the discretion granted to immigration officers to admit specified classes, implicitly provided the discretion to prohibit entry. Potential membership in an accepted class did not create a right to land in Canada. In his opinion, that discretion of immigration officers to admit applicants included authority to prohibit entry on security grounds.45
[40] The Court in Kisluk also made reference to a second series of Orders-in-Council, adopted pursuant to then s. 37 of the Act which authorized regulations concerning visas, e.g. P.C. 4851 of November 26, 1947 which required that "every alien sailing directly or indirectly from Europe shall carry the visa of a Canadian Immigration Officer stationed in Europe". Lutfy J. found these regulations conferred discretion to restrict landing in Canada on security grounds, and he concluded that:
. . . information provided by a security officer that a potential immigrant, who otherwise complied with the requirements of the Immigration Act and regulations, posed a security risk to Canada in 1948 was a proper ground on which the Immigration Officer could exercise negatively the discretion in P.C. 4849 and P.C. 4851.46
[41] The defendant submits that conclusion would be an error in this case for the evidence is that Immigration Officers had no discretion in relation to security matters. These were matters left entirely to the R.C.M.P., and insofar as the discretion of the visa officer was concerned, it was fettered by the determination of the R.C.M.P. which a visa officer could only accept and could not ignore.
[42] I agree that the positive assessment of the R.C.M.P. officer, just as the positive assessment of a medical officer, was a necessary requirement for exercise of the Immigration Officer's discretion. So too was the positive assessment of the Immigration Officer that an applicant met all other requirements under the Act, the regulations or other requirements (e.g. labour/employment categories set for immigrants). It was only if all assessments were positive that an Immigration Officer would exercise his discretion to issue a visa. No alien applicant had a right to enter Canada. In my opinion, failure to issue a visa, strictly speaking, was not the result of a discretionary exercise by an Immigration Officer. No discretion was exercised to preclude an applicant. All applicants were excluded unless an immigration officer exercised his or her discretion to admit an applicant as a qualified person within a specified class.
[43] The conclusion of Lutfy J. that discretion vested in Immigration Officers under regulations to admit or reject persons within classes of applicants was not shared by Mr. Justice Noël in Dueck. In the latter's view, none of the Orders-in-Council under the Immigration Act prior to P.C. 2856 of June 9, 1950, was considered by Cabinet to authorize discretion to prohibit admission on security grounds47. In a draft memorandum for the Prime Minister dated September 16, 1949, concerning the evolution of security screening policy in immigration, the Secretary of Cabinet, N.A. Robertson, noted that from time to time security problems in relation to immigration had been considered by the Cabinet's Committee on Immigration, and there had been considerable discussion whether the Act should be amended to exclude certain undesirable classes such as Nazis, Fascists and war criminals. Consistently decisions had been made that the problem should be dealt with by administrative means.48
[44] I note that in the case of Mr. Odynsky, counsel for the Minister urged that discretion to admit 5,000 displaced persons under P.C. 2180 of June, 1947 included discretion to refuse admission on security grounds. As counsel for Mr. Odynsky notes, that suggestion was not considered by Lutfy J. in Kisluk but it was dealt with expressly by Mr. Justice Noël in Dueck who said that this Order-in-Council:
. . . does not authorize the rejection of immigrants on security grounds. On the face of it, this Order-in-Council concerns itself with the selection of persons who sought to come thereunder by reference to labour requirements. This is a matter which came directly under the jurisdiction of the Interdepartmental Immigration Labour Committee constituted in March 1947 . . . . The Order explicitly contemplates the involvement of these two departments in the selection of DP's; it does not contemplate the involvement of the Department of Justice or the RCMP.49
[45] In this case counsel for the Minister, relying on the decision in Kisluk, urges that the discretion vested in immigration officers to approve admission to Canada, and to issue visas, included authority to refuse admission on security grounds. For the Minister it is also submitted that the administrative direction to require security clearance before the issue of a visa was not contrary to law. Rather, it is said that this was a lawful direction, one consistent with then section 74 of the Immigration Act of 1927 which authorized the Deputy Minister to prescribe:
. . . such rules, notices, forms of reports and manifests and other forms deemed necessary . . . . in connection with regulations under this Act for the use and guidance of officers under this Act.50
[46] It is clear on the evidence before me that by administrative direction, not by statute or regulation, passing security screening was a prerequisite in the late 1940's for anyone admitted to Canada for landing from Europe, particularly from Germany, which was then still an enemy country. That requirement applied in the case of displaced persons admitted in 1949 to meet specially identified labour requirements in Canada.
[47] As early as October, 1945 when Order-in-Council P.C. 6687 first relaxed the restrictive categories for admission to Canada under the 1931 regulation (P.C. 695 of March 31, 1931), to permit landing of refugees who had arrived in Canada during the war years, that was done for those cleared for security, even though no reference to that prerequisite was included in the regulation. Provision for security screening was included in a recommendation to Cabinet that stated ". . . only those granted a clearance from the Royal Canadian Mounted Police be eligible for a landing within the meaning of the Immigration Act, those not qualified for such a clearance to continue under their present status until their cases can be finally disposed of".51 A year later, in September 1946 the then Secretary to Cabinet, reviewing the consideration of expanding immigration after the war, wrote that ". . . it is quite clear that the Cabinet . . . . intended that `landing' should only be granted by the officials concerned to those who have been cleared by the R.C.M. Police52". In his affidavit, submitted in these proceedings, reviewing the evolution of post-war immigration policy and practices, Mr. D'Ombrain comments:
The concern about security screening was constant . . . . It is also noteworthy that from time to time the cabinet involved itself in operational questions related to security screening for prospective immigrants, confirming the importance of ensuring that security requirements were respected . . . . At the same time, it is to be noted that there was a certain tension between the need for effective screening and the need not to impede the flow of immigrants. Each time, however the Cabinet was asked to provide direction, it decided the screening should be carried out to the extent thought necessary and practical by the R.C.M.P.53
[48] As we have seen the issue whether security screening should be explicitly authorized by amendment to the Immigration Act or by regulation under the Act was raised directly in Cabinet in August, 1946, and Cabinet then determined that the problem "could be dealt with by other means".54
[49] In my view, there is no doubt that at the highest level of government, Cabinet intended that security screening of prospective immigrants be undertaken with respect to those seeking to come to Canada from Germany, including displaced persons, in the years 1945 to 1950, and indeed thereafter. That intention was implemented in the field by arrangements made between immigration authorities and the R.C.M.P. under the direction of Cabinet. On the evidence from former immigration officers, Messrs. Martineau, St. Vincent, and Kaarsberg, arrangements were in place for security screening of applicants for immigration in Germany in 1949. Those required an interview by an R.C.M.P. officer, whose concern was security screening, as the first step in dealing with an applicant for immigration, including a displaced person.
[50] I accept that the legal basis for security screening was not specifically provided for by the Act or regulations prior to 1950. Whether one accepts that discretion vested in immigration officers implicitly provided for rejection of applicants on security grounds as Lutfy J. found in Kisluk, or one rejects that conclusion as Noël J. found in Dueck, is not crucial to determination of the ultimate issue before this Court. In my opinion, in 1949 the source of the authority of the Government of Canada to require security screening for applicants for immigration, and to reject those who did not meet security requirements, was in the Royal Prerogative.
[51] I recognize that opinion was explicitly rejected by Noël J. in Dueck. He considered the matter on the basis of argument before him and he concluded:
In support of her argument that the crown's prerogative to reject aliens has not been eradicated, the applicant referred to section 17 of the Interpretation Act, R.S.C. 1985, c. I-2 which states:
| 17. No enactment is binding on Her Majesty or affects Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment. |
The applicant argued that the Crown prerogative may co-exist with a statute which treats the same subject-matter provided that the statute does not override the prerogative either expressly or by necessary implication. The applicant submits that no such override results from the Immigration Act.
In my view, however, the Immigration Act covers the whole of the prerogative which the applicant claims as authority for the rejection of potential immigrants on security grounds. The Immigration Act in force in 1948 conferred upon the Minister of Mines and Resources the authority to determine who could enter Canada and by definition who could not. When regard is had to the scheme of the Act, there was no apparent limit to the grounds upon which the Minister could refuse entry. As we have seen, section 38 of the Act allowed the Minister to prohibit entry, by order or proclamation, by reason of "climatic, industrial, social, educational, labour or other conditions or requirements of Canada" or because of the immigrants' "peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated". That is the authority under which Order in Council P.C. 1950-2856 was eventually adopted and there can be no doubt that this regulation provided the Minister concerned with the authority to reject immigrants on security grounds.55
[52] The Order in Council referred to by Noël J., P.C. 1950-2856, was adopted pursuant to s-s. 38(c) of the Immigration Act.56 That regulation vested the authority in the Minister to reject applicants on security grounds. It was enacted under s-s. 38(c) which provided:
| 38. The Governor in Council may, by proclamation or order whenever he deems it necessary or expedient,
. . .
(c) prohibit or limit in number for a stated period or permanently the landing in Canada, or the landing at any specified port or ports of entry in Canada, of immigrants belonging to any nationality or race or of immigrants of any specified class or occupation, by reason of any economic, industrial or other condition temporarily existing in Canada or because such immigrants are deemed unsuitable having regard to the climatic, industrial, social, educational, labour or other conditions or requirements of Canada or because such immigrants are deemed undesirable owing to their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry.
|
|
| 38. Le gouverneur en son conseil peut, par proclamation ou arrëte, lorsqu'il le juge nécessaire ou à propos,
. . .
c) Interdire, pendant une période de temps déterminée ou d'une maniêre permanente, le débarquement au Canada ou le débarquement à tous les ports d'entrée désignés, au Canada, ou limiter le nombre d'immigrants appartenant à quelque nationalité ou race, ou d'immigrants d'une catégorie ou occupation particulière, à cause d'une situation économique, industrielle ou autre régnant temporairement au Canada, ou parce que ces immigrants sont jugés impropres, eu égard aux conditions ou exigences climatériques, industrielles, sociales, éducationnelles, ouvrières ou autres du Canada, ou parce que ces immigrants sont considérés comme non désirables par suite de leurs coutumes, habitudes, modes de vie et méthodes particulières de posséder des biens et vu leur probable inaptitude à s'assimiler facilement ou à assumer les devoirs et les responsabilités du citoyes canadien dans un temps raisonnable après leur arrivée au pays.
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[53] In Kisluk, Mr. Justice Lutfy also discussed the prerogative as the possible source of the Crown's authority for security screening requirements. He referred to the recognition as early as 182057 of the Crown's prerogative to control the admission of aliens to the state. He referred as well to section 17 of the Interpretation Act, and to the discussion, concerned with the predecessor to that section in the previous consolidated statutes, by Chief Justice Dickson for the majority of the Supreme Court of Canada, who said in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission):
It seems to me that the words "mentioned or referred to" in s. 16 [similar to s. 17 of today's Interpretation Act] are capable of encompassing: (1) expressly binding words ("Her Majesty is bound"); (2) a clear intention to bind which . . . . "is manifest from the very terms of the statute", in other words, an intention revealed when provisions are read in the context of other textual provisions . . . . and, (3) an intention to bind where the purpose of the statute would be "wholly frustrated" if the government were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced. These three points should provide a guideline for when a statute has clearly conveyed an intention to bind the Crown.58
[54] In Kisluk, Lutfy J., considering the circumstances of 1948, concluded:
The historical context in which the Immigration Act was enacted, the uncertain wording of subsection 38(c) and the absence of an entitlement to be landed in Canada for prospective immigrants put into question, in my respectful opinion, whether the legislation fully displaced the Crown prerogative in relation to the exclusion of aliens on grounds of national security. However, I need not decide whether the legal authority to prohibit entry on security grounds rested solely on the doctrine of Crown prerogative in view of my conclusions concerning the effect of the orders-in-council in force in 1948. . . .59
[55] In this case the defendant urges that Parliament had legislated in relation to security clearance requirements first in 1872 by amending the then Immigration Act to provide:
The Governor in Council may, by proclamation, whenever he deems it necessary, prohibit the landing in Canada of any criminal, or other vicious class of immigrants, to be designed by such proclamation.60
Further, the defendant submits that by the Immigration Act of 1910, Parliament also precluded admission of those advocating the overthrow by force or violence of Government or constitutional law or authority, adding to the class of those who threaten security interests. These provisions, it is urged, demonstrate Parliament's displacement of any prerogative power to restrict admission to Canada on security grounds.
[56] It is clear Parliament may displace the exercise of prerogative power, in principle and by virtue of section 17 of the Interpretation Act. Nevertheless, I am not persuaded that the prerogative power of the Crown is limited by parliamentary provision for discretion to be exercised through regulation by the Governor in Council, which legislation or regulation does not expressly bind the Crown or does not do so by clear implication, at least until the adoption of regulations that conflict with or provide for displacement of, the continuing exercise of prerogative authority.
[57] Thus, in my view the amendments of 1872 and 1910 referred to by the defendant, and the later provision by s-s. 38(c) of the Act, delegating discretion to the Governor in Council did not, in themselves, eliminate or displace the Crown's general prerogative to exclude aliens from immigration to Canada on security grounds. Any of the specified exclusions under the Immigration Act or regulations limited the scope of the prerogative power, but they did not conflict with the prerogative authority to exclude persons, who were within permitted classes, on general security grounds. Only when the Governor in Council acted by a regulation to authorize the Minister, inter alia, to preclude persons on security grounds, could it be said that the prerogative power of the Government of Canada in relation to security screening of prospective immigrants was limited.
[58] Subsection 38(c) of the Immigration Act, as in force in 1948 (and 1949), was the basis of the finding by Noël J. that the Crown prerogative in relation to all aspects of immigration was completely withdrawn by Parliament. With respect for that finding, I note that he also found security screening was not authorized by regulation until 1950, when regulations vested in the Minister complete authority to preclude admission of prospective immigrants. In my view it is clear that it was not until then, in 1950, that one could say "there was no apparent limit to the grounds upon which the Minister could refuse entry". Until then, the fact the discretion was vested in the Governor in Council to provide for such regulation did not affect the exercise of the Crown prerogative authority, for the discretion under the Act had not been exercised. Thus, s-s. 38(c) did not expressly or implicitly preclude the exercise of the prerogative to provide for security screening of prospective immigrants, and it did not create an absurdity if the prerogative were to be exercised.61
[59] For the defendant, it is urged that the Supreme Court of Canada, in Espaillat-Rodriguez v. Canada62 recognized that the authority to exclude aliens on security grounds is based on the Immigration Act and regulations. In my view, that decision rendered in 1963 does not address the circumstances prevailing in 1949, before adoption of P.C. 1950-28 which vested authority in the Minister to determine grounds for acceptance of those within admissible classes, including security grounds. In my opinion, the decision in Rodriguez is not relevant in considering the authority in 1949 to preclude admission of prospective immigrants on security grounds.
[60] For the Minister it is urged that the authority to impose security screening was an aspect of the prerogative authority of the Crown to act in defence of the realm, that is, in relation to defence, national security and international affairs. In my view it is unnecessary to decide that issue; it is sufficient to find it was within the recognized prerogative of the Crown to provide for the admission of aliens, including the security screening of prospective immigrants in the late 1940's. In my opinion that authority continued until enactment of P.C. 2856 on June 9, 1950 which authorized the Minister to provide for admission to Canada, within classes allowed by the Act, on grounds satisfactory to the Minister, implicitly including security grounds.
[61] In summary, in 1949 when Mr. Odynsky's application to immigrate to Canada was approved, the arrangements in place for security screening of applicants were authorized implicitly under regulations that granted discretion to immigration officers to approve and to issue a visa to those selected within the classes of persons approved by regulation. Further, the rejection of those who did not clear the security screening by R.C.M.P. officers was within the prerogative authority of the Government of Canada to deal with aliens seeking admission to this country under the classes of persons approved by regulation and by legislation for admission.
The interpretation of "knowingly concealing material circumstances"
as used in ss. 10 and 18 of the Act
[62] The defendant urges that it is not proven that he knowingly concealed his wartime activities in the process of being admitted to Canada, or that these activities were material to his being admitted, or that he knew they were material. It is necessary to consider the meaning of "knowingly concealing material circumstances" as used in ss. 10 and 18 of the Act.
[63] There are arguments concerning whether he was examined by a security officer of Canadian nationality, whether questions were asked and under what authority, which I deal with elsewhere. As for questions concerning a duty of candor, and an obligation to disclose in the absence of questions, I accept the view of Mr. Justice Collier in Luitjens that absent relevant questions, where a person cannot be presumed to know particular matters of concern, there is no duty of candor.
[64] Aside from those issues, the defendant urges that there is no proof that his wartime activities were material to his admission because there is no proof that their disclosure would have resulted in him being denied admission. However, there may be a reasonable inference that he would have been rejected, based on a balance of probabilities in light of the evidence of all the circumstances, and if this did not occur, disclosure would surely have led to further questioning and careful assessment of Mr. Odynsky's activities in light of the rejection criteria used by screening officers. I do not agree that the test of materiality here is whether the activities, if known, would have resulted in his rejection. In my opinion, materiality is to be determined in light of the significance for purposes of the decision in question of the information not disclosed. Here Mr. Odynsky's wartime activities were relevant and significant for assessing him in the context of several of the rejection criteria.
[65] Moreover, they were material circumstances whether or not Mr. Odynsky knew that they were material. The word "knowingly" is an adverb modifying "concealing". It does not modify "material circumstances". I do not agree with the argument that the words used in ss. 10 and 18 apply only where it is established the person concealing information is aware that the information concerns material circumstances.
[66] "Knowingly" as applying to "concealing" means "in a knowing manner, with knowledge, consciously, intentionally"63 to conceal. In Canada (Minister of Multiculturalism and Citizenship) v. Minhas64 then Associate Chief Justice Jerome, speaking of the phrase "false representation or fraud or knowingly concealing material circumstances", in s-s. 10(1), said:
In order to succeed, the Minister must do more than merely demonstrate that the respondent has committed a technical transgression of the Act. The words used in subs. 10(1) do not impute an offence requiring the full criminal standard of proof `beyond a reasonable doubt', but rather have the effect of saving innocent misrepresentations from the severe penalty of revocation of citizenship. An innocent statement or representation, although false and misleading, is not sufficient to invoke or justify such a penalty. There is a further element of proof required, relating to the respondent's state of mind, and the onus of that proof rests with the Minister. What is required, therefore, is some evidence that the respondent misrepresented pertinent facts with the intention to deceive and to obtain his citizenship on the basis of those false representations.
[67] In sum, it is my opinion that the words "knowingly concealing material circumstances" used in ss. 10 and 18 require that the Court must find on evidence, and/or reasonable inference from the evidence, that the person concerned concealed circumstances material to the decision, whether he knew or did not know that they were material, with the intent of misleading the decision-maker.
[68] The decision in Minhas has been referred to and relied upon in part in two other decisions of this Court, Canada (Minister of Citizenship and Immigration) v. Malik65 and Canada (Minister of Citizenship and Immigration) v. Coomar66.
[69] In all those cases, as in Brooks,67 the person concerned had answered questions untruthfully, thus concealing material circumstances. It is urged in respect of Brooks, as it might be for Minhas and the other cases following it, that the circumstances are here different, for on the defendant's evidence he was not asked and did not answer questions about his wartime activities. That is not the only evidence in my view.
[70] I turn next to consider the evidence of Mr. Odynsky and others concerning security screening in 1949.
Mr. Odynsky's Wartime Activities
and the Security Screening of Prospective Immigrants in 1949
[71] Three principal issues remain to be resolved in considering Mr. Odynsky's wartime activities and the security screening criteria for applicants from displaced persons' camps in Germany seeking admission to Canada in 1949. The first is whether Mr. Odynsky was examined for security clearance in the processing of his application to come to Canada. The second is whether his application would have been refused if his wartime activities had been disclosed. The third is whether there was misrepresentation or knowing concealment of material circumstances, i.e., his wartime activities, by Mr. Odynsky in connection with his admission to Canada. I turn to consideration of these issues in turn.
[72] At trial Mr. Odynsky's evidence is that he was not asked what he had done or where he had lived through the wartime years on any occasion that could be perceived as related to his admission to Canada. In particular, he was not asked about his wartime activities in connection with his application to come to Canada, when he first applied at Somme Kaserne at Augsburg, or when he and Mrs. Odynsky were examined at Funk Kaserne at Munich when they remember registering and undergoing medical examinations, or when Mr. Odynsky later returned to Munich for processing to travel to Canada.
[73] I note that Mrs. Odynsky, testifying at trial, did not remember being asked about her activities or where she had lived during wartime years at any of the UNRRA or I.R.O. operated camps where she lived after the war. Her circumstances were somewhat different since when she was registered at her first camp for displaced persons, at Bayreuth, she produced her arbeitsbuch, a labour book, with her identification, issued to her by the Germans when she was taken to Germany for forced labour. That may have accounted for her presence in Germany and her activity in wartime years for purposes of any UNRRA and later I.R.O. records.
[74] Relying in part on Mr. Odynsky's tale, about what he had told I.R.O. officials, when he was interviewed by the R.C.M.P. in August 1997, and in part upon I.R.O. documents which were not related specifically to the defendant, documents submitted in evidence by the plaintiff, it is urged for the Minister that the defendant must have misrepresented his wartime activities to I.R.O. officials. Further, it is urged that any misrepresentation of his background would have been available to any concerned R.C.M.P. visa security officer at Somme Kaserne, as Mr. Odynsky himself assumed would be the case when he spoke to the R.C.M.P. officer in 1997. In the ordinary course whatever information I.R.O. had about Mr. Odynsky would have been provided upon their request to the immigration selection team that considered his application, according to the testimony of former immigration officers and Mr. Cliffe, heard at trial.
[75] Yet in my view, the conclusion urged by the Minister, that Mr. Odynsky misrepresented his past to I.R.O. officials, is speculative and not supported by evidence. Mr. Odynsky acknowledged in discovery and at trial that his story in the 1997 interview was false. The I.R.O. documents before the Court include an I.R.O. form for information concerning an individual which does include a section for information on places lived and activities undertaken for the previous 12 years. Instructions for completion of forms and directions to I.R.O. officers, resolutions about the organization's purposes and materials concerning its constitution, indicate that persons who had served with enemy forces of the United Nations, or collaborated with those forces, were not entitled to the protection and support of the organization. The documents are interesting but evidence of their use in practice in the years of significance in this case was not adduced. The Court declines to find that Mr. Odynsky misrepresented his wartime activities to I.R.O. officials, or that the I.R.O. information about him, if any, would have been the key element for his security screening by those considering his application for admission to Canada.
[76] It is urged for the defendant that the only direct evidence of the processing of his application for admission to Canada is that of Mr. and Mrs. Odynsky. Yet there is other evidence of the process generally followed. There is the evidence of three former Canadian immigration officers, Messrs. Martineau, St.Vincent, and Kaarsberg, that the process they consistently followed in Germany in the late 1940's with applicants who were displaced persons was that applicants were dealt with by personal interview or examination, in turn by the security screening officer, by the medical examiner, and finally by the immigration officer. There is also the evidence of Mr. Cliffe, formerly an R.C.M.P. security screening officer of his practice in the early 1950's, which he understood was consistent with that of his counterparts in Europe then and previously. His principal concerns were where a prospective immigrant had lived and worked and what he or she had done, particularly during the years of World War II. That information was considered relevant for checking with local police authorities and with the Berlin Document Centre, then operated by U.S. authorities to maintain German records on former Nazis, members of the Waffen SS, and others.
[77] The documentary evidence in this case is substantial in support of the opinion of Mr. D'Ombrain that the Cabinet and its advisory Security Panel strongly supported security screening, abroad, of prospective immigrants, and that this task be undertaken by the R.C.M.P., working with immigration officers. In my opinion the evidence is also clear that the R.C.M.P. determined that all displaced persons and any others admissible from Germany in the late 1940's were to be screened for security, at a time when German nationals were not admissible to Canada since they were still enemy aliens. It is also clear that screening required a personal interview of an applicant by the security officer.
[78] If the evidence of Mr. and Mrs. Odynsky were accepted the result would be that they did not complete any application forms themselves and any forms necessary were completed by staff of the I.R.O. at Somme Kaserne. Further they were not interviewed at Funk Kaserne except by a medical examiner who worked through an interpreter, and that examiner was the only Canadian official with whom they met, so far as they knew or could recall. They were not seen or interviewed by a security screening officer or an immigration officer. Mr. Odynsky's I.R.O. travel document was stamped, with a visa signed by an Immigration Officer at some time when the defendant was not present, to permit him to be landed in Canada. It is my conclusion that their memories of the details of the process when they were at Somme Kaserne in May 1949 is not complete, but that is not surprising since that was more than 50 years ago.
[79] There is finally the evidence of Mr. Kaarsberg, heard at trial, that he would not have issued a visa to Mr. Odynsky, which he did by stamping and signing the defendant's I.R.O. travel document, if he had not first satisfied himself that Mr. Odynsky had been passed at the security screening stage by a security or visa control officer with whom Mr. Kaarsberg would have been working in May 1949. Further, he would only have issued the visa if he had satisfied himself, by his own personal interview, or that another immigration officer had been so satisfied, that Mr. Odynsky should be admitted to Canada. Only in those circumstances would Mr. Kaarsberg have issued a visa, by stamping and signing Mr. Odynsky's I.R.O. travel document.
[80] I note that document includes a stamp of National Health and Welfare Canada, also dated May 13, 1949 as Mr. Kaarsberg's stamp was, and the medical examiner who signed with the stamp also wrote "passed". It was not the practice of security officers to mark "passed" or "not passed" on an I.R.O. travel document, and no such notation appears on Mr. Odynsky's.
[81] In light of all the evidence before me I find on a balance of probabilities that when his application for admission to Canada was considered at Munich, at the time of his attendance at Funk Kaserne, when his visa was approved, stamped and signed by Mr. Kaarsberg, then a Canadian immigration officer, Mr. Odynsky had been interviewed by a security screening officer who had passed him for security. I find also that if this had not happened he would not have been issued a visa, to be landed in Canada, by Mr. Kaarsberg who at the time had satisfied himself, or was satisfied that another immigration officer was satisfied, that Mr. Odynsky had met all requirements, including security screening, for admission to Canada.
[82] For the Minister it was urged that I should find Mr. Odynsky's evidence was not credible. While I make no general finding on his credibility, I do not find that his evidence of his examination at Funk Kaserne is a complete description of the process he experienced. I do not accept his evidence as complete since it does not reflect the process which, on the evidence of others, was in place for examining displaced persons at Munich who applied to come to Canada in 1949.
[83] I find that he was interviewed by an R.C.M.P. security officer. Of course, in any interview, as a prospective immigrant, Mr. Odynsky had an obligation, under the Immigration Act in force in 1949, to answer truthfully any question put to him.
[84] I turn to the question whether the defendant's wartime activities, if disclosed when he was processed for admission to Canada, would have led to rejection of his application. For Mr. Odynsky it is submitted this is not established on the evidence before the Court, in particular with reference to the security screening criteria on which the Minister relies. For the plaintiff it is urged that is unnecessary that this be established so long as it is established that information about his wartime activities was material to the exercise of the visa officer's discretion and that Mr. Odynsky knowingly did not disclose it, foreclosing other inquiries.
[85] The Minister's position is based upon the decision of the Supreme Court of Canada in Minister of Manpower and Immigration v. Brooks.68 There, in considering s-s. 19(1) of the Immigration Act of 1952, that Court concluded that a misrepresentation of a material fact includes an untruth, the withholding of truthful information, or a misleading answer which has the effect of foreclosing or averting further inquiries even if those inquiries might not have turned up any independent ground of deportation, or of rejection in this case.
[86] Despite that position of the Minister it is urged on her behalf that if Mr. Odynsky's wartime activities had been disclosed he would have been rejected by R.C.M.P. security screening officers under the criteria (b) and/or (k) set down in November 1948 for rejection of prospective immigrants, i.e., as a member of the SS, or as a collaborator. As we have seen, included in the list of those to be rejected were these:69
| (b) Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (NON-Germans) |
| (k) Collaborators presently residing in previously occupied territory. |
[87] Neither of these criteria and in particular the terms "Member of the SS" or "collaborators" was further defined in 1948 or 1949, as the defendant points out and the plaintiff acknowledges, and there is no direct evidence of how these terms were applied by R.C.M.P. officers in the field. While Mr. Cliffe testified of his understanding of the term collaborator, he was not able to recall a case where he had rejected an applicant on that ground. Nor could he recall having dealt with one like Mr. Odynsky who claimed Ukrainian nationality, though Ukraine was not then a member of the international community and had not been an independent nation before the war.
[88] Despite the lack of evidence of the meaning of these terms as used in 1949, the terms were not without meaning. For the defendant it is urged that "Members of the SS", in the case of non-Germans meant only those who bore the SS Blood Group tattoo, which Mr. Odynsky never had. Moreover, on the evidence of Dr. Ornest Subtelny, a historian called by the defendant, for reasons which he set out, Mr. Odynsky would not have been considered a member of the SS. I note that Dr. Yitshak Arad, a historian called to testify on behalf of the plaintiff, testified to the contrary, for reasons he relied upon. With respect for their opinions I note that neither made reference to Mr. Odynsky's nationality, a factor of significance in evidence before me in another case, Oberlander.70 I here take judicial note of my finding in that case, based on the evidence there presented by Dr. Manfred Messerschmidt, a German military historian with expertise in German army and police operations in eastern occupied territories during the war, who testified in Oberlander for the Minister. I there found that, formally, membership in the SS was limited to German citizens. It was not extended to those of other nationality even if they were conscripted to serve with SS units, in its fighting arm the Waffen SS, or in its subordinate police units.
[89] While I do not find that Mr. Odynsky was a "member of the SS" in a formal or technical sense, I do not accept that the term as used in criterion (b) of the grounds for rejection was intended to be limited only to those formally accepted as members by the SS. It was widely known that many others than Germans had served with SS units, particularly the Waffen SS working with the German army, and in SS police service units. This would have been known to those concerned with national security and the screening of prospective immigrants seeking admission to Canada in the late 1940's. I take judicial notice of the attention paid in those years to evolving international criminal law as a result of the Allied Military Tribunal, Control Council Law No. 10 of 1946, which, within then-occupied Germany, declared the SS and a number of its organizations to be criminal organizations. Moreover, the trials of war criminals before the Nuremberg Military Tribunals, from October 1946 to April 1949, reported from time to time through to 194971, directed attention, inter alia, to the atrocious activities of Nazi leaders, of some German forces, and particularly of the SS and its units in eastern Europe.
[90] In these circumstances, in my opinion, any security officer interviewing Mr. Odynsky in 1949, who learned of his wartime service with auxiliary units, as an SS wachmann or guard at Trawniki and Poniatowa, both known forced labour camps operated by the SS, and that he later served with the SS Battalion Striebel, and his service was always under command of SS officers, at the least would have asked questions about that service to assess whether he should be considered admissible under the security criteria. In all probability he would have determined that Mr. Odynsky was to be rejected as a member of the SS. Even if he were not then rejected, any security officer who learned of his wartime service would have questioned him at some length to assess that service in light of the rejection criteria. If Mr. Odynsky were then passed for security, it is highly unlikely he would have forgotten that he was asked about his wartime activities. Yet his evidence is that he was not asked any such questions.
[91] Whether his wartime activities would have meant Mr. Odynsky would have been rejected as a "collaborator" is not established in my view. From documents before the Court that word was widely used, but the application of the term, particularly where service was not voluntary, was a matter of continuing discussion and debate between senior officers of immigration and of the R.C.M.P. Thus, while in 1947 Instruction No. 1 of the Immigration Branch, concerning "Procedure in Handling Alien Immigration",72 includes the direction that "Persons who served with the enemy in any capacity are not eligible for admission", there appears to have been a continuing interest among senior immigration officers that this direction not be applied where a person could establish that any such service was rendered under compulsion. That is evident from the direction to immigration in London in April 1948 that acknowledged the practice of admitting Ukrainians who formerly served, but not voluntarily, with German forces.73
[92] Ameliorating application of the general directive, in the case of those who served under compulsion, was apparently not a matter of much interest to the R.C.M.P. in the 1940's. It is urged that in the view of R.C.M.P. officers, satisfactory evidence of compulsion was virtually impossible to provide, though this is inferred mainly from later documents of the 1950's. Then modifications were made to the listed criterion concerning collaborators, first restricting any assessment of involuntary service to those whose service with German forces began after January 1, 1944, and later to limit "collaborators" to those classed as major collaborators, including in that category those who served as guards at concentration or forced labour camps. The documentary evidence from the 1950's indicates reluctance on the part of those concerned in the R.C.M.P. for security screening of prospective immigrants to modify the general term "collaborators" with reference to compulsory service with German forces.
[93] Nevertheless, in my view, there is not evidence upon which to conclude that Mr. Odynsky would have been considered a "collaborator" in 1949. There is not now evidence of any definition of that term or its application in 1949, and in particular of the words "presently residing in previously occupied territory" that accompany it in criterion (k) of the statement of rejection criteria of the R.C.M.P., as the representative of the Minister acknowledged in discovery.
[94] For the defendant it is urged reaching any conclusion that Mr. Odynsky would have been rejected is speculative and without evidentiary support. If my conclusion is not shared, in respect of the probability of his exclusion as a perceived member of the SS, I agree with the Minister's submissions, based on Brooks, that it is unnecessary to conclude that Mr. Odynsky would have been excluded under security criterion (b). It is sufficient for me to conclude that by knowingly concealing information material to his admission, Mr. Odynsky foreclosed the opportunity for further inquiry by security officers. I turn next to assess that matter.
[95] For the defendant it is submitted that this Court should find, on the evidence before it, that there was no misrepresentation or knowing concealment of material circumstances for a variety of reasons, including the following, to which I note my assessments briefly.
| (a) It is urged that the Court should infer that discharge from the American POW camp at Eger in 1945, based on information then provided by Mr. Odynsky or on his behalf, would have been allowed only if it were found by American Army authorities that he was not a collaborator or a war criminal or a volunteer for the German army, and he was not Volksdeutsche, i.e., of German national origin but born in an occupied country. |
| (b) Further, it is urged an inference should be drawn that information provided to the American Army at the POW camp at Eger, the assessment of that information and his discharge would have been obtained by any R.C.M.P. security screening officer from American intelligence sources in Germany. A security officer, in possession of that information, including information about his wartime activities, would have questioned the defendant who would have responded truthfully, and the security officer would have determined he was not inadmissible and would have passed him at "Stage B". |
| In my opinion these inferences would not be warranted. There is no evidence of any information provided to American Army officers at the Eger POW camp, except Mr. Odynsky's testimony that he there turned in his personal army issue basic identity document issued to him by the Germans. Moreover, his own evidence is that he was not then asked about his wartime activities and he did not then provide any information of that sort, though he is not aware of information that might have been given by officers of his unit who surrendered at Eger. |
| (c) If the Court were to find that Mr. Odynsky misrepresented his background to I.R.O. officials, as his story to Corporal Fnukal in August 1997 indicated, it is urged that is not proof of his misleading Canadian officials in relation to his admission to Canada. |
| There was substantial oral and written argument devoted to the statement given to Corporal Fnukal in August, 1997 and the use and weight to be attributed to it. There was also argument about the authority of the R.C.M.P. to conduct an investigation or interview in August, 1997. I do not deal with those matters since I accept Mr. Odynsky's sworn testimony at trial that his 1997 story to Corporal Fnukal was untruthful. I do not rely on that statement and I give it no weight. I do note that it is an occasion, admitted by the defendant, when he did misrepresent the facts of his background and of his wartime activities. |
| (d) Since there was evidence that in the late 1940's there were others than R.C.M.P. officers engaged in security screening for immigration to Canada, if the Court were to find that the defendant misrepresented his background to a security officer there is no evidence of misleading a Canadian official as alleged in the Notice of Revocation. |
| The argument is not persuasive for there is no evidence and no basis for concluding that those acting on behalf of the R.C.M.P. in security screening, whether they were Canadian R.C.M.P. officers or other nationals with security training recruited for its program by the R.C.M.P., should be considered as acting outside the prerogative authority of the Crown or as not being a "Canadian official" within the meaning of those words in the Notice of Revocation. Whether screening was done by a Canadian R.C.M.P. officer or by a person retained for the R.C.M.P. screening program in Europe, it was done for and in the name of the R.C.M.P., unless there be evidence otherwise, of which there is none. |
| (e) It is urged that there is no evidence of misrepresentation by Mr. Odynsky, and no evidence that he knowingly concealed material circumstances, or that he knew matters alleged to be material, i.e., his wartime activities, were material to a decision that he be admitted to Canada. |
| I have interpreted "knowingly concealing material circumstances", as those words are used in s-ss. 10(1) and 18(1), as requiring that concealment be deliberately done, with a view to obscuring the truth, about matters which are objectively material in the circumstances to the decision to be made, whether or not the person concealing can be said to know that the matters are material. |
| I accept that there is no direct evidence on these issues, except that of Mr. Odynsky. His evidence is that he was not interviewed by a security screening officer or an immigration officer, that he was not asked about his wartime activities and that he did provide truthful answers to any questions he was asked in the processing of his application to come to Canada. |
| It is possible his story is true. I accept that is what he remembers. Yet I have found that on a balance of probabilities he was interviewed by a security screening officer and again, on a balance of probabilities, that he would have been questioned about those. If his wartime activities had been disclosed, on a balance of probabilities, I find that his application would have been rejected or, at the very least, that he would have been admitted only after deliberate and careful questioning and assessment. In the latter event, it is improbable that Mr. Odynsky would not remember his interview. |
[1] Put another way, I find that it is more probable that Mr. Odynsky was interviewed than that he was not interviewed. Further, it is more probable that the interviewing security officer, interested particularly in his activities during the war years, in the latter portion of which he was of prime age for military service, who learned of his activities would have rejected his application, rather than clearing him as having passed "Stage B". I find also that it is more probable than not that Mr. Odynsky did not answer truthfully questions raised by the security officer. His own evidence is that he did not answer any questions about his wartime experience and activities because he was not asked such questions. Since, I infer from all the evidence that he was interviewed by a security screening officer whose responsibility was to assess, in light of his background whether Mr. Odynsky was to be passed for security, I conclude that he misrepresented the facts or that he concealed facts about his wartime activities. I do so conclude and I rely upon his evidence that he did not answer questions about his wartime experience.
[2] These crucial findings are based not on direct evidence but on reasonable inferences based on all the evidence of the circumstances at the time. That is my understanding of my obligation to make findings of fact based upon a balance of probabilities, considering the evidence before me and the reasonable inferences arising from that evidence.
[3] As we have seen the Act by s. 10(1) specifies that the Minister, to make a report recommending revocation of Mr. Odynsky's citizenship, must be satisfied, and for that purpose by this reference seeks a declaration that the defendant has "obtained . . . citizenship by false representation or fraud or by knowingly concealing material circumstances."
[4] I turn to summarize the key facts I have found and my conclusions from the applicable law that lead me to conclude the declaration sought by the Minister should be granted.
Summary of Facts Found and Conclusions Reached
[5] Wasyl Odynsky, the defendant, was born in January 1924 in the village of Beleluja, in the Snyatyn region of the district of Stanislav, now Ivano-Frankivs'k, in western Ukraine, then within Poland. His father had one of the larger farms near the village and he lived with his parents and his siblings in the village. There he attended school until age 11 when he left school to work on the family farm.
[6] After the outbreak of World War II in September, 1939, by agreement between Germany and Russia that area in western Ukraine came under occupation of the U.S.S.R. The process of sovietization and pressures to establish collective farms were interrupted when Germany attacked the Soviet Union in June 1941 and German forces quickly occupied western Ukraine, including Beleluja and environs.
[7] In 1942 and early 1943 the Germans ordered many young people in the Ukraine removed for forced labour in Germany and many young men to report for service as auxiliaries with the German army and police services. In early February 1943 Mr. Odynsky was among young men born in the years 1920 to 1924 ordered to report to Snyatyn. There he was among five young men from Beleluja who were selected and ordered to report to Kolomyja a few days later to serve with German forces.
[8] Mr. Odynsky and his four colleagues did not report as ordered. They hid in Beleluja and the surrounding fields until German officers and Ukrainian police appeared in the village in late March or April and directed that if they did not report without delay they would be severely punished when caught or their families might suffer.
[9] The five young men from Kolomyja all turned themselves in and they were taken to Snyatyn and jailed for a time there, before being transferred to Kolomyja. There they were held in detention, first threatened with death, then told that there was a reprieve and they would be sent for training, but any further attempt to escape service would lead to their execution when caught, and if they avoided capture their families would be sent to concentration camps.
[10] They were then sent to Trawniki in the Lublin district under the German-imposed General Gouvernment. At Trawniki, the SS operated a forced labour camp and a training camp for training auxiliary SS forces as guards. After a month or so in training there, Mr. Odynsky and some 120 others were formed into a company of SS wachmanner or guards and transferred to Poniatowa. There the SS operated another camp with forced labour, primarily Jews from the Warsaw ghetto, manufacturing uniforms and other supplies, under direction of German civilian corporations, for the Army and SS forces.
[11] The auxiliary company including Mr. Odynsky spent a brief period at a barrack at the main camp at Poniatowa. Then they were moved to another part of the camp, the Seidlung or Settlement, a residential barrack area for some Jewish families who had once been comparatively well-to-do and for German civilians. The task of the Trawniki men, as the Ukrainian guards were known, was to guard the Seidlung, principally along a fence line around the sides of the exterior, against possible attack by partisans, and along the fence and road connecting the Seidlung to the main camp, to which forced labourers from the Seidlung were marched each day to and from work.
[12] Conditions for most forced labourer-prisoners at Poniatowa were not pleasant particularly for those housed in crowded barracks at the main camp. Food was scarce and discipline was severe. Within the factory areas German civilians were responsible for management of the work and workers. Outside the factory areas "capos", selected from among the forced labourers, were primarily responsible for discipline, backed up by some of the Trawniki men. The entire operation was under command of the German SS troops, apparently a small number, trained in the use of arms and force. The only evidence of those engaged as guards at the Seidlung, from Mr. Odynsky and three men who served at Poniatowa with him and who testified in Beleluja, was of their task as guarding the perimeter of the Seidlung and of facilities associated with the camp. They essentially deny direct involvement with the labourer-prisoners held and working there.
[13] After less than six months of that guard role and routine training, forced labour activities at Poniatowa, as at Trawniki and at another labour/death camp at Majdanek came to a sudden end. On November 3 or 4, 1943 German Waffen SS and SS police forces surrounded the three camps , entered them, and in a well-organized Operation, "Erntefest", or "Harvest Festival", in less than a full day slaughtered by shooting the many thousands of Jewish and other forced labourers and their families held in the three camps.
[14] During that operation Mr. Odynsky and his fellow Trawniki men were confined to their barracks by the SS. He saw some of the labourer-prisoners and families marched from the Seidlung area, and he and his colleagues heard shooting all day. When they were permitted to leave their barracks, after an estimated 15,000 persons at Poniatowa alone, were shot in the one day, there were no longer any labourer-prisoners or their families to be seen at the camp. A few were spared and ordered to burn the corpses which they refused to do, and so they too were executed.
[15] While one expert witness, a historian, suggested that Trawniki men had ultimately shot the survivors who refused, then burned them and the corpses of other dead prisoners, he admitted in cross-examination that there was no evidence to support that suggestion.
[16] Soon after Operation Erntefest, Mr. Odynsky was granted leave to return to Beleluja where his mother was ill. He became ill himself while there and was permitted to extend his leave but after some five or six weeks he was ordered to report back to Poniatowa, which he did. On his return, there were no forced labourers or other prisoners held there. His company remained there as guards for the facilities as a whole and occasionally he and they served as guards at other facilities.
[17] In June 1944 Mr. Odynsky's company and others were returned to Trawniki. The SS wachmann units were formed into SS Battalion Streibel, named for the SS commander of the labour camp who now became commander of the Battalion. It became a labour battalion and it moved westward, ahead of the advancing Russian forces, assisting in construction of defence works and in cleaning up damage, as it did for some weeks in the Dresden area in the spring of 1945.
[18] From there it moved to the west of Czechoslovakia and it was just west of Prague when Germany surrendered. Those in the battalion seeking to avoid capture by advancing Russian forces, Mr. Odynsky among them, moved west to surrender to American forces at Eger in Germany.
[19] In my opinion there is no doubt that Mr. Odynsky's service at Trawniki and Poniatowa, and even with SS Battalion Striebel was not voluntary. It was urged by the plaintiff that at some stage in 1944 or 1945, with the Russian forces advancing, he made no effort to escape or simply to be absent without leave, and thus his continuing service should be considered voluntary. He believes he would have been shot if captured after leaving and that he would have put his family in jeopardy, at least so long as German forces were in western Ukraine. There was no evidence about a particular time after which his service might be considered voluntary and I am persuaded that it continued to be involuntary until the end of the war.
[20] There was no evidence at trial that Mr. Odynsky participated personally in any incident involving mistreatment of prisoners or of any other person during his service with the SS guard units or with Battalion Striebel, as the plaintiff Minister's represenative conceded in discovery before trial.
[21] After a few weeks in the American POW camp at Eger, Mr. Odynsky and others were released and permitted to go to Augsburg. A number of Ukrainians gathered there and a camp for displaced Ukrainian persons was established at Gegengen and later a larger camp was formed at Somme Kaserne, both in the Augsburg area. Mr. Odynsky lived in both those camps until early in 1949 when he lived briefly at Leipheim shortly before he came to Canada.
[22] At Somme Kaserne he met and later married Maria, his wife, also from Ukraine, whence she had been removed by the Germans early in 1943 as a forced labourer to work on a German farm. They were married in 1948 soon after Mr. Odynsky was released from a detention camp where he had served a sentence after an arrest for what was apparently considered minor black marketing activity in relation to food.
[23] At Somme Kaserne in early 1949 Mr. And Mrs. Odynsky made application to come to Canada, he as an agricultural worker or farmer. They chose Canada in large part because Mr. Odynsky had family members, including a grandmother and uncles living from before the war in British Columbia. The Odynskys did not then speak or read English and the application was completed on their behalf by IRO office staff who were fluent in English and Ukrainian. Somewhat later they were summoned to Munich for examination in relation to their application.
[24] They attended at Funk Kaserne, another I.R.O. camp at Munich, as directed. There they were billeted while, as they recall, medical examinations were completed, a process which included essential x-rays and which took a few days. The only person they there encountered whom they believed to be a Canadian, was a medical doctor who examined them separately, speaking English they believe, and assisted by an interpreter.
[25] Mr. Odynsky's evidence is that he was not then interviewed by any other person whom he believed was Canadian and he was not asked any questions then about his wartime activities or where he had lived during the war years. That testimony is supported by Mrs. Odynsky's testimony. Further, Mr. Odynsky testified he was not asked questions about his wartime years when he was at the American POW camp at Eger, or at any of the IRO camps where he had lived, or in 1949 before he boarded ship, or during his trip to Canada or when he debarked and was landed at Halifax.
[26] It is possible that Mr. Odynsky's memory of his experience when he applied to come to Canada is an accurate depiction of what happened, at least in part, some 50 years before he testified, but I am not persuaded that it describes in full the entire process.
[27] Documentary evidence, and the affidavit and testimony of Mr. Nicholas D'Ombrain, establish the concern of the Government of Canada to ensure security screening by the R.C.M.P. of applicants for immigration to Canada, particularly those residing in former enemy countries, including displaced persons, in the late 1940's. In my opinion, in 1949, while it was not provided by statute or regulation, security screening was implemented pursuant to the Crown's prerogative power to preclude admission of aliens to Canada.
[28] The security screening system established, as it was in place in Funk Kaserne at Munich, based on testimony of three former immigration officers who served in Germany and Austria at the time, required applicants for immigration to be interviewed and passed or approved by a security screening officer of the R.C.M.P., then by a medical officer and then by an immigration officer. Only if he were satisfied that an applicant had passed examination by security and medical officers, and had met requirements under the Act, would the immigration officer grant a visa for an applicant to be landed in Canada.
[29] Mr. Andrew Kaarsberg, the immigration officer who stamped a Canadian visa stamp and affixed his signature on Mr. Odynsky's IRO travel document, testified that he would not have done so without first ensuring that he had already been cleared for security and for medical reasons and had satisfied himself, by interviewing Mr. Odynsky or by ensuring that another immigration officer was so satisfied, that he had met requirements of the Act and Regulations, and the labour category for which he applied.
[30] On a balance of probabilities, I find, in addition to his examination by a Canadian medical officer, that Mr. Odynsky was interviewed and passed by an R.C.M.P. security screening officer, and by a Canadian immigration officer, before a visa stamp and Mr. Kaarsberg's signature were placed on his IRO identification and travel document.
[31] In light of the documentary evidence, including the R.C.M.P. statement of security screening rejection criteria of November 1948, the purposes of that screening, and the testimony of a former R.C.M.P. security screening officer, I also find that, on a balance of probabilities, Mr. Odynsky was asked, by a security screening officer at Funk Kaserne in May 1949, questions concerning what he had done and where he had lived, particularly in the previous decade including the war years.
[32] Under the Immigration Act Mr. Odynsky had an obligation to respond truthfully to questions asked by those concerned to review his application to come to Canada. If, when asked about his experience during the war, Mr. Odynsky had responded that, even if not voluntarily, he had served as an SS-wachmann, training at Trawniki and as a guard at Poniatawa, both known SS forced labour camps, and that he served subsequently in SS Battalion Streibel, always under command of SS officers, it is my opinion that, on a balance of probabilities, an R.C.M.P. security officer would not have passed him for security. He would have been perceived as a member of the SS, even if he were not formally qualified by citizenship. In the alternative, if his wartime background were known to the security officer, he would have been passed for security only after significant questioning, which it is unlikely Mr. Odynsky would have forgotten even 50 years later.
[33] The facts of Mr. Odynsky's wartime experience were material, in light of the security criteria and their purposes, to the decision that he be admitted to Canada, for landing, whether he knew that or not. His personal knowledge that his wartime activities were material to that decision was not essential.
[34] In my opinion, after careful consideration of the evidence presented, on a balance of probabilities, it is more probable than not that Mr. Odynsky did not truthfully answer questions that were put to him concerning his wartime experience. It is my conclusion that he was approved for admission to Canada because of false representation that he made or by his knowingly concealing material circumstances, i.e., about his wartime activities, before his visa was issued to permit him to come to Canada.
[35] I so find without requiring that all of the facts alleged in the Notice of Revocation issued to Mr. Odynsky in September 1997 have to be established by the plaintiff Minister. The relief the Minister seeks in this reference is declaratory, in accord with s. 18 of the Act. Sufficient factual basis for that relief is included in the allegations set out in the Notice of Revocation to provide the defendant with fair notice of the ground for the Minister's proposed action. The Minister must establish, on a balance of probabilities, a factual basis to support the award of the relief sought, a factual basis alleged within the terms of the Notice of Revocation, which I find is here established.
[36] Mr. Odynsky was admitted for landing in Canada on July 3, 1949, on the basis of a visa issued to him, as I find, which resulted by false representation or knowing concealment of material circumstances by him, concerning his wartime experience and activities. If admission on that basis were not considered lawful,74 it would not meet requirements of the Citizenship Act prevailing in 1955 which required that he be lawfully admitted to Canada for permanent residence. Since he was not so admitted, he was not qualified and he could not obtain citizenship under the Act. Citizenship granted in those circumstances can only be considered as having resulted from false representation, express or implied, in relation to an essential prerequisite.
[37] On the other hand, if Mr. Odynsky's admission in Halifax was lawful, in light of the decision of Mr. Justice Létourneau for the Court of Appeal in Jaber v. Canada (Minister of Citizenship and Immigration)75, his admission to Canada based on his false representation or knowing concealment of material circumstances provided the basis for his obtaining citizenship. Under s-s. 10(2) of the Act, Mr. Odynsky is deemed to have obtained citizenship by false representation or by knowingly concealing material circumstances.
Conclusion
[38] In considering any report to the Governor General in Council concerning Mr. Odynsky pursuant to s-s. 10(1) of the Act, the Minister may wish to consider that
| 1) on the evidence before me I find that Mr. Odynsky did not voluntarily join the SS auxiliary forces, or voluntarily serve with them at Trawniki or Poniatawa, or later with the Battalion Streibel; |
| 2) there was no evidence of any incident in which he was involved that could be considered as directed wrongfully at any other individual, whether a forced labourer-prisoner, or any other person; |
| 3) no evidence was presented of any wrongdoing by Mr. Odynsky since he came to Canada, now more than 50 years ago; |
| 4) evidence as to his character from some of those who have known him in Canada, uncontested at trial, commended his good character and reflected his standing within his church and within the Ukrainian community in Toronto. |
[39] While those factors may be relevant to any discretion the Minister or the Governor in Council may exercise, they are not relevant in this proceeding.
[40] This Court finds, on a balance of probabilities in considering certain key factual issues, that the defendant, Wasyl Odynsky, was admitted to Canada for permanent residence in July 1949 on the basis of a visa obtained by reason of false representations by him or by his knowingly concealing material circumstances. Subsequently he obtained citizenship in 1955 when, having been admitted to Canada, on that basis, he is deemed, pursuant to s-s. 10(2) of the Act, to have acquired citizenship by false representation or knowingly concealing material circumstances.
[41] As a result this Court now issues the declaration requested by the Minister in this action, that is,
| The defendant, Wasyl Odynsky, obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of s-s. 18(1)(b) of the Citizenship Act. |
[42] Costs shall be as the parties may agree. Failing agreement, if necessary counsel may speak to the matter or provide written submissions for consideration of the Court.
(Signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
March 2, 2001.
Date: 20010302
Docket: T-2669-97
Ottawa, Ontario, this 2nd day of March , 2001
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
IN THE MATTER OF revocation of citizenship pursuant to sections 10
and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19
of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER of a request for reference to the Federal Court
pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;
AND IN THE MATTER of a reference to the Court pursuant to Rule 920
of the former Federal Court Rules, continued pursuant to Rule 169(a)
of the Federal Court Rules, 1998, as required pursuant to Rule 501.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
WASYL ODYNSKY
Defendant
JUDGMENT
UPON a reference by the Plaintiff, dated December 11, 1997, pursuant to s-s. 18(1) of the Citizenship Act, seeking a declaration that the Defendant, Wasyl Odynsky obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances;
UPON hearing evidence and argument by counsel for the parties, and upon careful consideration of both evidence and argument, and assessing the balance of probabilities;
IT IS ORDERED AND DECLARED:
The Defendant, Wasyl Odynsky, obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of s-s. 18(1)(b) of the Citizenship Act.
____________________________________
Judge
__________________
1.. Canada (Secretary of State) v. Luitjens (1993), 142 N.R. 173 (F.C.A.) (hereinafter Luitjens-C.A.) cited with approval in Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391 at 413, 151 D.L.R. (4th) 119 at 136-137, 218 N.R. 81 at 106-107 (hereinafter Tobiass cited to S.C.R.).
2.. Tobiass, ibid; Luitjens-C.A., ibid; Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203 (T.D.) (hereinafter Dueck).
3.. Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 at para. 113 (T.D.) (hereinafter Bogutin).
4.. Evidence of operations of forced labour camps at Trawniki and Poniatowa, and of auxiliary forces serving there was provided by the defendant, Mr. Odynsky, and by witnesses, Ivan Andriyovich Timchuk and Ivan Wasylovich Lukaniuk and Mykola Teodorovich Kishkar, heard in Beleluja, Ukraine, and by expert witnesses heard at trial, including Dr. Yitshak Arad and Dr. Orest Subtelny.
5.. Exhibit P19 at Tab 8; Exhibit P36-6.
6. Dr. Orest Subtelny, Transcript, Vol. XXIII, April 29, 1999.
7.. Exhibit P32, Affidavit of Nicholas D'Ombrain, sworn February 2, 1999 (hereinafter D'Ombrain). The history of Canadian immigration policy and security screening is traced in some detail by Mr. Justice Noël in Dueck, supra note 2, by Mr. Justice Nadon in Minister of Citizenship and Immigration v. Katriuk (1999), 156 F.T.R. 161 (T.D.) (hereinafter Katriuk), and by Mr. Justice Lutfy, as he then was, in Minister of Citizenship and Immigration v. Kisluk (1999), 169 F.T.R. 161 (T.D.) (hereinafter Kisluk). Their principal source for historic evidence in each case was an expert report and testimony by Mr. D'Ombrain, with documents upon which his report in each case was based.
8.. P.C. 695, 25 March 1931.
9.. R.S.C. 1927, c. 93, as amended.
10.. Exhibit P17 at Tab 39; Exhibit P6 at Tab 194.
11.. Security Panel Document SP 24, Memorandum for the Security Panel, March 30, 1948: Exhibit P6 at Tab 173, Annex "A" (hereinafter SP 24); Exhibit P17 at Tab 33, p. 6.
12.. SP 24, ibid. at 6.
13.. Memorandum for Cabinet: Security investigation of prospective immigrants, August 22, 1949: Exhibit P6 at Tab 203, para. 5.
14.. The documents comprise Exhibit P21; Exhibit P7 at Tabs 258, 259, 260, 261, 262, 263, 264.
15. Supra, note 9.
16. Ibid.
17.. R.S.C. 1952, c. 33, ss. 26-33.
18. Canada (Secretary of State) v. Luitjens, [1989] 2 F.C. 125 (T.D.) (Hereinafter Luitjens).
19..Reasons for rulings on aspects of evidence of a historian as an expert witness: Canada (Minister of Citizenship and Immigration) v. Odynsky (1999), 166 F.T.R. 255 at para. 23 (T.D.) (hereinafter Odynsky).
20..Canada (Minister of Citizenship and Immigration) v. Odynsky, January 20, 1999, T-2669-97.
21..Exhibit P17 at Tab 21, p. 1; Exhibit P9 at Tab 231.
22..Exhibit P17 at Tab 22, para. 5; Exhibit P9 at Tab 234.
23..Exhibit P17 at Tab 9, p. 1, 2; Exhibit P5 at Tab 154.
24..SP 24, supra note 10 at 6.
25.Exhibit, P6 at Tab 179.
26.Transcript from discovery, Exhibit D20-4 at Tab 8, ques. 2609-2611.
27..Supra, note 10.
28..Transcript, Vol. XII, February 22, 1999, at 1324-26.
29..Transcript, Vol. XIII, March 8, 1999, at 1498-1515.
30..Transcript, Vol. XXIII, April 29, 1999, at 2669.
31..Supra, note 18.
32..Defendant's Written Submissions at 56, items (11), (12).
33.R.S.C. 1970, c.C-19, s-s. 18(1)(a).
34.S.C. 1946, c. 15, s-s. 21(1).
35..See Tewelde v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1873 (F.C.A.), online: QL (FCJ).
36..Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (T.D.), online: QL (FCJ) (hereinafter Oberlander).
37.See, Tobiass, supra note 1.
38.Supra, note 9.
39. Dueck, supra note 2.
40.Bogutin, supra note 3.
41.Dueck, supra note 2.
42.Katriuk, supra note 7.
43.Kisluk, supra, note 7.
44.Ibid. at para. 165.
45.Ibid.
46.Ibid. at para. 179.
47.Dueck, supra, note 2.
48.Draft Memorandum to Prime Minister, "Rejection of prospective immigrants on security grounds", September 16, 1949: Exhibit P6 at Tab 206.
49.Dueck, supra, note 2 at para. 294.
50.Supra, note 9.
51. D'Ombrain, supra note 7 at 16.
52. Ibid. at para. 58.
53. Ibid. at para. 59.
54.Ibid. at para. 68; Exhibit P5 at Tab 143, p. 2.
55. Dueck, supra note 2 at paras. 302, 303.
56.Supra, note 9.
57.See, Chitty, A Treatise of the Law of the Prerogative of the Crown and the Relative Duties of the Subject, (London: Butterworth & Son, 1820) at 49, as quoted in Kisluk, supra note 6.
58. [1989] 2 S.C.R. 225 at 281.
59.Kisluk, supra, note 7 at para. 164.
60.Supra, note 32 at para. 299.
61.See also Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 at 140-146 (T.D.); aff'd (1995), 89 F.T.R. 136 (C.A.); leave to appeal dismissed without reasons [1995], S.C.C.A. No. 103 (S.C.C.), online: QL (SCCA).
62.[1964] S.C.R. 3">[1964] S.C.R. 3.
63.Oxford English Dictionary, 2nd Ed., Vol. VIII.
64.(1993), 66 F.T.R. 155 at 157 (T.D.).
65.(1997) 128 F.T.R. 309 (T.D.) per Gibson J.
66.(1998) 159 F.T.R. 37 (T.D.) per McKeown J.
67.[1974] S.C.R. 850">Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850 at 873 (hereinafter [1974] S.C.R. 850">Brooks).
68.Ibid.
69.Supra, note 10.
70.Oberlander, supra, note 36.
71.See e.g. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946 - April 1949.
72.Exhibit P5 at Tab 154, p. 1.
73.Supra, note 26.
74.Canada (Minister of Citizenship and Immigration) v. Nemsila, (1997), 214 N.R. 383 (F.C.A.), aff'g (1996) 120 F.T.R. 132 (T.D.), Jerome A.C.J.; Katriuk, supra, note 7 at 222.
75.Jaber v. Canada (Minister of Citizenship and Immigration) [2000] 1 F.C. 603 (F.C.A.). See also, Tran v. Canada (Minister of Citizenship and Immigration) (1996), 124 F.T.R. 186 (T.D.).
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