|29 July 2005|
RE: File 20031527, Canadian Jewish Congress v Ukrainian Archive at www.ukar.org (CJC v UKAR)
The John J Chamberlin Second Investigator's Report (dated 30-Jun-2005 and delivered to Lubomyr Prytulak 04-Jul-2005) deviates from normal CHRC procedure so as to obstruct Lubomyr Prytulak's ability to defend himself.
Proper CHRC procedure is to notify Respondent that an investigation is in progress and that an Investigator's Report is being prepared, and to disclose to Respondent the name of the investigator and to invite Respondent input to the investigator. One sees such proper CHRC procedure in the case of the First Investigator's Report: the Suzanne Best letter of 27-Nov-2003 discloses the name of the investigator, offers access, and invites input:
Ms. Hannya Rizk is the investigator designated to gather the evidence in relation to the complainant's allegations and, once the investigation is complete, to report on the findings to the Members of the Commission. You can reach her at (613) 943-9061 or by fax at (613) 947-7279.
What does the investigator do? The investigator gathers the information and evidence needed to prepare a report and makes a recommendation to the Commissioners. The investigator gives the respondent an opportunity to reply to the allegations. The investigator may interview witnesses or ask the respondent and complainant for documents or information.
Hannya Rizk's Investigator's Report has already been written. The Canadian Human Rights Act (CHRA) does not require or authorize or even anticipate the need for a Second Investigator's Report. Why, then, was a second investigation conducted and a second report written?
Until a better explanation is offered, it may be supposed that there had been agreement at the CHRC with Prytulak's complaint that the First Investigator's Report was unsatisfactory because it excluded all Prytulak arguments from consideration.
The John J Chamberlin Second Investigator's Report, like the Hannya Rizk First Investigator's Report, is no better than a restatement of the CJC complaint, and makes no mention of the many persuasive and documented defenses that Prytulak has put before the CHRC. The John J Chamberlin Second Investigator's Report in no way alludes to, or lists, or acknowledges Prytulak facts or arguments. The Chamberlin Report is written as if Prytulak had submitted nothing whatever and had offered no defense whatever.
Such CHRC refusal to afford Prytulak the right of reply is at variance with the requirement of administrative fairness:
I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham", at p. 1378, "that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness."
Chief Justice Laskin writing for the majority in Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police, Canada Supreme Court Reports, 1979, Volume 1, p. 324.
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.
Lord Denning quoted by Laskin C.J. in Nicholson v Haldimand-Norfolk Regional Board of Commissioners of Police, Canada Supreme Court Reports, 1979, Volume 1, p. 327.
[C]ourts have generally inferred from the administrative nature of the Commission's decision that they need only ensure that the Commission considered all of the facts, leaving it up to the discretion of the Commission as to whether to proceed to Tribunal. [...]
Joanna Birenbaum and Bruce Porter, Screening Rights: The Denial of the Right to Adjudication Under the Canadian Human Rights Act and How to Remedy it. A research paper prepared for the Canadian Human Rights Act Review Panel, 04-Nov-1999
The world acknowledges the legitimacy, and indeed the nobility, of fighting for truth in the 19th century's greatest miscarriage of justice — the conviction and incarceration on Devil's Island of Alfred Dreyfus for crimes supposedly committed by Ferdinand Esterhazy. The world has not as yet come around to the view that the same legitimacy, let alone nobility, attaches to fighting for truth in the 20th century's greatest miscarriage of Justice — the conviction and sentencing to death of John Demjanjuk for crimes supposedly committed by Ivan the Terrible of Treblinka. If the Ukrainian Archive stands for one thing above all others, it is the right to speak truth to power concerning John Demjanjuk. If the Canadian Jewish Congress wishes to suppress one thing on the Ukrainian Archive above all others, it is the disclosure of truth concerning John Demjanjuk. The chief reason that the Canadian Jewish Congress seeks to suppress the entire vast Ukrainian Archive on the basis of a complaint about a few short quotations, is because the Ukrainian Archive defends John Demjanjuk too successfully for the CJC to engage in open debate, and too successfully for the CJC to wish to draw attention in its complaint to UKAR's Demjanjuk defense.
The open discussion that defenders of John Demjanjuk are confident Canadian law will allow is the same open discussion that French law allows the defenders of Alfred Dreyfus. The sentiment that motivates Lubomyr Prytulak to write in defense of John Demjanjuk on the pages of the Ukrainian Archive is the same sentiment that motivated Emile Zola to write in defense of Alfred Dreyfus on the pages of L'Aurore:
Ce n'est pas, d'ailleurs, que je désespère le moins du monde du triomphe. Je le répète avec une certitude plus véhémente: la vérité est en marche et rien ne l'arrêtera. C'est d'aujourd'hui seulement que l'affaire commence, puisque aujourd'hui seulement les positions sont nettes: d'une part, les coupables qui ne veulent pas que la lumière se fasse; de l'autre, les justiciers qui donneront leur vie pour qu'elle soit faite. Je l'ai dit ailleurs, et je le répète ici: quand on enferme la vérité sous terre, elle s'y amasse, elle y prend une force telle d'explosion, que, le jour où elle éclate, elle fait tout sauter avec elle. On verra bien si l'on ne vient pas de préparer, pour plus tard, le plus retentissant des désastres. [...]
As for myself, I have not despaired in the least of the triumph of right. I repeat with the most vehement conviction: truth is on the march, and nothing will stop it. Today is only the beginning, for it is only today that the positions have become clear: on one side, those who are guilty, who do not want the light to shine forth, on the other, those who seek justice and who will give their lives to attain it. I said it before and I repeat it now: when truth is buried underground, it grows and it builds up so much force that the day it explodes it blasts everything with it. We shall see whether we have been setting ourselves up for the most resounding of disasters, yet to come. [...]
Quant aux gens que j'accuse, je ne les connais pas, je ne les ai jamais vus, je n'ai contre eux ni rancune ni haine. Ils ne sont pour moi que des entités, des esprits de malfaisance sociale. Et l'acte que j'accomplis ici n'est qu'un moyen révolutionnaire pour hâter l'explosion de la vérité et de la justice.
As for the people I am accusing, I do not know them, I have never seen them, and I bear them neither ill will nor hatred. To me they are mere entities, agents of harm to society. The action I am taking is no more than a radical measure to hasten the explosion of truth and justice.
Je n'ai qu'une passion, celle de la lumière, au nom de l'humanité qui a tant souffert et qui a droit au bonheur. Ma protestation enflammée n'est que le cri de mon âme. Qu'on ose donc me traduire en cour d'assises et que l'enquête ait lieu au grand jour! J'attends.
I have but one passion: to enlighten those who have been kept in the dark, in the name of humanity which has suffered so much and is entitled to happiness. My fiery protest is simply the cry of my very soul. Let them dare, then, to bring me before a court of law and let the enquiry take place in broad daylight! I am waiting.
Émile Zola, J'Accuse...! Lettre au Président de la République, L'Aurore, 13-Jan-1898
Emile Zola, I Accuse...!, Letter to the President of the Republic, L'Aurore, 13-Jan-1898
The Ukrainian people demand the right to free themselves from the incessant barrage of hate propaganda in which the Canadian Jewish Congress buries them. The Ukrainian people demand the right to defend John Demjanjuk without the Canadian Jewish Congress diagnosing them as suffering from mental illness, just as the defenders of Alfred Dreyfus are today free of the diagnosis of mental illness. The Ukrainian people demand the right to defend John Demjanjuk without being accused of hatred against Jews just as the defenders of Alfred Dreyfus are today not accused of hatred against the French. Ukrainians demand the right to defend John Demjanjuk without suffering government prosecution, just as Jews enjoy the right to defend Alfred Dreyfus without suffering government prosecution. The CHRC will not succeed in smothering such Ukrainian demands for equality.
The CJC attempt to suppress truth using the tool of document spoliation will no more succeed in Ottawa than it succeeded in Los Angeles where CJC golden boy Steven Rambam expressed his outrage at a Ukrainian who dared to expose the CJC hate propaganda embodied in the Rambam-Abella-Cotler Fifty Confessions Hoax. Lubomyr Prytulak will not submit to being led through a Kafkaesque nightmare in which he is asked to write his submissions within CHRC-mandated page lengths and submit them within CHRC-mandated deadlines when in fact they will go unread whether they are short or long and whether they are delivered early or late. Canadians will not submit to the step toward totalitarianism that the CHRC took upon originating the doctrine that when the powerful complain of defamation, the weak should be forbidden the defense of truth.
The instant letter does not summarize or review or give any hint of the defense that Prytulak has submitted to the CHRC and that has been systematically excluded from the two CHRC Investigators' Reports, and neither does the instant letter discuss the errors and distortions and misrepresentations contained in the Second Investigator's Report.
The chief reason why Prytulak avoids writing on both these topics is that he has no guarantee that his statement will be placed before the CHRC Disposition Committee which is to decide whether the case goes before the Canadian Human Rights Tribunal (CHRT). In fact, the unbroken precedent set by the CHRC promises Prytulak that nothing he writes will be placed before the CHRC Disposition Committee. Prytulak's only guarantee that his words will reach the CHRC Disposition Committee is to see these words reflected in an Investigator's Report. It is within a CHRC Investigator's Report that the Prytulak defense must appear for him to be persuaded that he will finally be permitted to play some role in CHRC deliberations beyond that of sacrificial lamb. It would be unreasonable for the CHRC to expect Prytulak to say again what he has said earlier, given that the CHRC has gone out of its way to flaunt the display of CHRC personnel clapping their hands over their ears whenever Prytulak begins to speak.
In any case, the ten-page limit and one-month deadline which the CHRC imposes on further submissions may be adequate for comments that parties wish to make by way of correcting or elaborating the representation of their position which they find in the Investigator's Report. However, that page length and that time deadline are inadequate when the Investigator's Report contains no representation of a position, and the position needs to be explained in its entirety, and more especially when half of the permitted ten pages need to be taken up with protest against spoliation.
The CHRC, then, is obligated to produce an Investigator's Report that includes a "neutral and thorough" representation of Prytulak's position. When such a report is written, Prytulak will be happy to take no more than thirty days to add his no more than ten-page critique. To proceed in the absence of an Investigator's Report which satisfies the sine qua non of neutrality and thoroughness is to continue routing Lubomyr Prytulak toward a show trial before a kangaroo court, it is to bring the administration of justice into disrepute, and it is to offer an irresistible argument for weeding out corruption and incompetence at the CHRC.
Irving ABELLA, National Honourary President, CJC, Department of History, York University, 4700 Keele Street, Toronto ON M3J 1P3
John J CHAMBERLIN, Manager Investigations, CHRC, 344 Slater Street, Ottawa ON K1A 1E1
Hon. Irwin COTLER, Minister of Justice and Attorney General of Canada, 284 Wellington Street, Ottawa ON K1A 0H8
Rt. Hon. Paul MARTIN, Prime Minister, Office of the Prime Minister, 80 Wellington Street, Ottawa ON K1A 0A2
Ed MORGAN, Chair, CJC, Suite 650, 100 Sparks Street, Ottawa ON K1P 5B7