Ukrainian Canadian Congress
Position Paper: June 19th 1999
Denaturalization and Deportation
More than a decade ago, the Ukrainian Canadian Congress, at the time the Ukrainian Canadian Committee ("UCC"), took an active part in the public hearings of the Commission of Inquiry on War Criminals, headed by the Honourable Mr. Jules Deschênes, former Chief Justice of the Superior Court of Quebec ("Deschênes Commission"), which lead to a comprehensive report submitted to the Government of Canada on December 30, 1986.
In its report, the Deschênes Commission stated that:
"The Commission has been invited to advise the Governor-in-Council as to "what further action might be taken in Canada to bring to justice such alleged war criminals who might be residing within Canada, including recommendations as to what legal means are now available to bring to justice any such persons in Canada or whether and what legislation might be adopted by the Parliament of Canada to ensure that war criminals are brought to justice and made to answer for their crimes."
As a result, the Commission lists and will study the legal remedies in the following order of preference:
1- Extradition 2- Prosecution in Canada a) Under present law
1. Canadian law
2. International law
b) Under amendments to the law 3- Denaturalization and Deportation
Before embarking upon a study of each remedy, it appears advisable to state, in brief, the basis for this order of preference.
As a last resort, Canada might look to denaturalization and deportation. The Commission gives to this process its lowest ranking because it does not really deal with the substantive issue of war crimes: it merely transfers the suspect to another country, provided there be one willing to accept the outcast."
The Deschênes Commission also made the following findings:
"39- Applications for citizenship are available from the earliest times; they are not likely, however, to yield useful results for the purpose of unveiling war criminals and leading to the revocation of their citizenship. 40- Applications for immigration and connected documents have been destroyed in large numbers over the years, consistently with retention and removal policies in force within Canadian government departments and agencies, more particularly Immigration, External Affairs, RCMP and CSIS, so that evidence for possible revocation of citizenship or deportation has become largely unavailable. 41- Recourse to ships' manifests, which have been microfilmed up to 1953, would be of little use, if any, in view of the absence thereon of questions relevant to the issue. 42- The destruction of a substantial number of immigration files in 1982-1983 should not be considered as a culpable act or as a blunder, but has occurred in the normal course of the application of a routine policy duly authorized within the federal administration. In any event, if a blunder there was, it arose out of the failure of the higher authorities properly to instruct of an appropriate exception the employees entrusted with the duty of carrying out the retention and disposal policy in their department."
Since the Deschênes report, the Canadian Government unsuccessfully attempted to convict four individuals for war crimes. In the last case of R. v. Finta,  1 S.C.R. 701, the Supreme Court of Canada declared, inter alia, that:
"What distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race. With respect to war crimes, the distinguishing feature is that the terrible actions constituted a violation of the laws of war.
Section 7(3.71) cannot be aimed at those who killed in the heat of battle or in the defence of their country. It is aimed at those who inflicted immense suffering with foresight and calculated malevolence."
After the Finta judgment, the federal government concluded that further criminal prosecutions in Canada were impractical and resorted to the "lowest ranking" remedy to deal with the issue of war crimes (according to the Deschênes Commission), namely denaturalization and deportation proceedings.
In a news release dated January 31, 1995 and entitled "FEDERAL GOVERNMENT ANNOUNCES WWII WAR CRIMES STRATEGY", the government of Canada announced "a strategy aimed at deporting alleged WWII war criminals living in Canada" and stated therein that:
"The amendments to the Immigration Act prohibit persons who have committed war crimes and crimes against humanity from entering Canada. Unlocated suspects about whom there is sufficient evidence to conclude that they committed war crimes or crimes against humanity have been added to an "immigration watch list." This list is used by immigration officers in identifying war criminals and preventing their entry into Canada or, alternatively, reporting their presence in the country.
All cases are investigated with regard to the possible criminal and civil litigation options: prosecution, denaturalization and deportation. [...] If prosecution is not possible, the civil options of denaturalization or deportation, depending on the status of the suspect in Canada, will be evaluated for those cases where the individual obtained citizenship or entry to Canada through demonstrable fraud. Some of the evidence needed for prosecution will also be relevant to the civil options."
The federal government further explained that:
"The key criterion in all these proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered."
Three decisions of the Federal Court of Canada demonstrate that denaturalization and deportation proceedings are inappropriate to deal with the issue of war crimes during the Second World War. In two cases, the Crown even dropped its accusations that the defendants committed such crimes at the outset of the hearings.
Indeed, in the case of Canada (Minister of Citizenship and Immigration) v. Vitols,  F.C.J. No. 1373, the Honourable Mr. Justice William P. McKeown rendered a judgment on September 23, 1998, dismissing the Minister's reference to the Federal Court of Canada pursuant to Section 18 of the Citizenship Act, R.S.C., 1985 c. C-29, and stated that:
"Based on all of the foregoing, it cannot be concluded that there was, practically speaking, a uniform system in place such that disclosure of membership in the [...] Waffen SS would have resulted in an individual's exclusion from entry into Canada.
Although official Canadian policy precluded the entrance of such persons into Canada, the evidence indicates that, in practice, their admission into Canada was discretionary at the hands of visa control officers."
The Federal Court also mentioned that:
"In December 1995, the respondent was served with a notice, dated December 28, 1995, seeking to revoke his citizenship. The second last page is similar to the notice before this Court, except for two crucial changes. The most serious allegation was that he had failed to disclose his participation in atrocities against the civilian population. By letters dated January 24, 1996, December 17, 1996 and January 21, 1997, written on the respondent's behalf, it was explained that the allegation was based on KGB misinformation and arguments were made as to why it could not be true. In December 1996, a new notice was served which dropped the allegation of personal complicity in atrocities. That is the notice that is before the Court."
Three months later, on December 21, 1998, the Honourable Mr. Justice Marc Noël rendered a judgment in the case of Canada (Minister of Citizenship and Immigration) v. Dueck,  F.C.J. No. 1829, dismissing the Minister's reference to the Federal Court of Canada pursuant to Section 18 of the Citizenship Act, and declared that:
"Statistics prepared for the Immigration/Labour Committee show that 8,728 DP's [displaced persons] had arrived in Canada by April 8, 1948. In comparing this number to the 1,611 DP's who had been screened by the RCMP by March 30, 1948, the respondent suggested this would mean that only 18.45% of DP's had actually been screened by the RCMP. While this calculation involves a number of assumptions, the applicant [the Minister of Citizenship and Immigration] did not challenge these assumptions, the source from which these numbers were derived, the method which was used or the conclusion reached with respect to the number of DP's screened. These numbers do raise a serious question about the extent to which a consistent method of security screening was being applied during the period at issue.
Given the known influx of immigrants to Canada from Europe in 1948 and the pressures placed on the RCMP not to impede the flow of immigrants, it is likely that the rigorous security procedure in place was not always followed. This is particularly the case where 'filling the boats' was a known priority.
The decisions made by Cabinet of August 5, 1946 and February 5, 1947 did set the government policy with respect to security screening and clearly were to the effect that prospective immigrants not be admitted unless they had been screened by the RCMP in accordance with the applicable security criteria. But Cabinet decisions once taken must be made legally effective in one way or another. In the words of Mr. d'Ombrain, they must find formal or legal expression either through a statute of through the Governor in Council's legal authorities. Yet, as of July 1948, no legislation, Order-in-Council or regulation had been passed authorizing the rejection of immigrants on security grounds.
There is no doubt that section 38 of the Immigration Act provided the required authority for doing so subject to the appropriate order being passed. But, it was not until June of 1950 that an Order-in-Council was passed giving the Minister the discretion to refuse landing by reference to the broad language contained in that section."
The Federal Court also pointed out that the Minister:
"[...] admitted at the beginning of the hearing that she had no evidence to support the allegation that the respondent participated in any of the executions alleged in the Summary [of Facts and Evidence] ..."
Finally, on January 29, 1999, the Honourable Mr. Justice Marc Nadon of the Federal Court of Canada rendered a judgment in the case of Canada (Minister of Citizenship and Immigration) v. Katriuk, Docket: T-2408-96 (presently in appeal) , and stated that:
"In Canada (Minister of Citizenship and Immigration) v. Dueck, (21 December 1998), Ottawa: F.C.T.D., T-938-95 [unreported], my colleague Mr. Justice Noël comes to the conclusion that, until the enactment of order in council P.C. 1950-2856, there was no authority under the Immigration Act, 1927 and the orders in council enacted thereunder, to refuse entry into Canada of immigrants on security grounds. I agree with the view taken by Noël J.."
In this case, the Federal Court (Trial Division) ruled in favour of the Minister but made the following judicial finding:
"I therefore find that the Minister has not proved, on a balance of probabilities, that the respondent participated in the commission of war crimes or that he committed such crimes."
In addition thereto, the Ukrainian Canadian Congress reiterates the following representations, made on its behalf by the late John Sopinka, Q.C. (who later became a judge of the Supreme Court of Canada), to the Deschênes Commission, as to why denaturalization and deportation proceedings should not be used to deal with suspected Nazi war criminals in Canada:
"(ii) Denaturalization and Deportation
I would submit that the Commission ought to reject categorically any recommendation that the vehicle of denaturalization and deportation should be used as a remedy to deal with the possibility that Nazi war criminals may be resident in Canada.
In the absence of any concrete information concerning the persons against whom allegations of complicity in Nazi war crimes have been made, I can only assume that most, if not all of such persons are Canadian citizens who have been resident in Canada for 35 or 40 years and are approaching or have reached the age of retirement. Unlike extradition, deportation and denaturalization are remedies which do not contemplate a full trial being held on the issue of the guilt or innocence of the accused. Unless a virtual criminal standard of proof were applied, this "solution" runs the serious risk of unjustly destroying the life of a presumably innocent person, without providing him or her with an adequate means of defending themselves. An order of deportation and denaturalization is made in a non-criminal context. A deported person would be barred from returning to Canada, and would not be provided with a full trial of the issue of his guilt or innocence of the crime alleged. I submit that this is an unacceptable option.
I do not propose to review in any great detail the various proposals which have been submitted as providing the means for successfully denaturalizing and deporting suspected Nazi war criminals. I think that I should point out one major flaw in the reasoning of the proponents of this unfair solution. The general assumption appears to be how does one go about ridding Canada of Nazi war criminals. Surely the first step must be the determination of which persons are in fact Nazi war criminals. It is only when the criminal responsibility of the individual has been established by a criminal standard of justice that such draconian measures begin to acquire a semblance of justice.
It has been suggested that a naturalized Canadian suspected of being a Nazi war criminal could be denaturalized and subsequently deported if he or she obtained citizenship, permanent residence or refugee status by means of false pretences. A citizenship applicant who fails to admit war crimes involvement could be said to have falsely represented himself as being of good character. An applicant for permanent residence status who was a war criminal could be said to have concealed his guilt of a crime of moral turpitude or his undesirability. In addition, an applicant for permanent residence status may have concealed his enemy alien status, interned enemy aliens or his membership in a subversive organization.
There are numerous problems with the application of immigration law to the situation of alleged Nazi war criminals. Firstly, there is considerable doubt that sufficient evidence in Canadian immigration records exists to permit proof of such misrepresentations. With respect to those who have propounded a differing view, this is not an obstacle which can be overcome by the presumption of regularity in the execution of official tasks. The maxim is a presumption of validity of official acts until the contrary is proven. A landed immigrant or citizen need not prove the validity of the official acts which granted him that status. It is another thing entirely to state, in effect, that the citizen who is suspected of being a Nazi war criminal is presumed to have entered irregularly. This would place an impossible burden on the defendant.
Secondly, even assuming that evidence of misleading or false declarations could be found or assumed, there remains the problem of innocent misrepresentations. At the end of the war between 1 and 2 million Ukrainian people were in D.P. camps throughout Europe. As a result of the Yalta accords, hundreds of thousands of these were forcibly repatriated to the Soviet Union, only to be liquidated or deported to Siberia. The only hope of those designated for "repatriation" was to prove their origin from outside the borders of pre-1939 Soviet Union. For Ukrainians this meant assuming new identities either as Poles or ethnic Ukrainians from the former Polish territory of Galicia. It would be simply monstrous to institute deportation proceedings against such persons merely because of a misrepresentation on their landing documents.
Another problem with deportation and denaturalization proceedings is that they are clumsy and involve administrative proceedings ill-suited to the determination of a person's guilt or innocence as a war criminal.
Any deportation and denaturalization proceedings involving Ukrainians would likely involve a consideration of Soviet evidence. The same problems which have been referred to elsewhere in accepting Soviet evidence would arise in such proceedings. However, unlike criminal proceedings, the evidence would be considered in essentially administrative proceedings with a lower standard of proof and fewer procedural safeguards than a criminal prosecution.
It is, in my submission, cruel and inhuman to uproot an individual from his family and whatever life he has built in 35 or more years as a productive Canadian on the suspicion that he might have been a war criminal. It is precisely because of the "evidentiary advantage" in deportation and denaturalization proceedings that I would submit that the Commission should reject such proceedings as a means of bringing war criminals to justice. No punishment should be inflicted upon a suspected war criminal unless his or her guilt is fairly established by Canadian standards of justice."
In view of the foregoing, the Ukrainian Canadian Congress advocates that the Canadian Government should not resort to denaturalization and deportation proceedings to deal with the issue of Canadians suspected of war crimes during the Second World War since:
(a) they are inadequate to determine a person's guilt or innocence as a war criminal; and (b) they suppose therefore that another country will address this issue in Canada's place.
In addition thereto, as applications for immigration and connected documents have been destroyed in large numbers over the years by government employees and the admission into Canada of many post World War II immigrants was discretionary, evidence for denaturalization and deportation proceedings has become largely unavailable.
The Government of Canada should rather prosecute Canadian citizens, who are seriously suspected of war crimes, before Canadian courts of criminal jurisdiction in accordance with Canadian criminal law and Canadian standards of evidence in criminal proceedings.
Le Congrès des Ukrainiens Canadiens demande au gouvernement canadien de ne pas recourir aux procédures de dénaturalisation et d'expulsion pour traiter du cas des canadiens soupçonnés d'avoir commis des crimes de guerre pendant la Deuxième Guerre Mondiale puisque :
a) ces procédures sont inadéquates pour déterminer la culpabilité ou l'innocence d'une personne accusée d'être un criminel de guerre; et b) supposent donc qu'un autre pays traitera de ces cas à la place du Canada.
De plus, les formulaires de demande d'immigration et autres documents connexes ont été détruits en grand nombre au cours des ans par les employés du gouvernement et l'admission au Canada de plusieurs immigrants après la Deuxième Guerre Mondiale était discrétionnaire, de sorte que la preuve pour les fins de procédures de dénaturalisation et d'expulsion est en grande partie disparue.
Le gouvernement du Canada devrait plutôt poursuivre les citoyens canadiens qui sont sérieusement soupçonnés d'avoir commis des crimes de guerre devant les tribunaux canadiens de juridiction criminelle conformément au droit criminel canadien et aux normes de preuve canadiennes en matière de poursuites pénales.
June 19th, 1999FOR FURTHER INFORMATION:
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3 May 2000