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McLellan's justification   9Oct98   Regardless of time and place
Canada must not be a safe haven for war criminals or for persons who have engaged in reprehensible activity during time of conflict, regardless of time and place.

To a reader who is not following Canada's war criminal proceedings closely, the following letter from Anne McLellan not to Lubomyr Prytulak of the Ukrainian Archive must seem perfectly reasonable.  However, anyone having some acquaintance with these proceedings is likely to recognize that Anne McLellan's letter contains several inaccuracies.  These inaccuracies will be pointed out on the Ukrainian Archive shortly.

Ms. McLellan's reference below to the Commission of Inquiry on War Crimes is probably intended as a reference to the Commission of Inquiry on War Criminals.

Minister of Justice 
and Attorney General of Canada 
 Ministre de la Justice
 et Procureure générale du Canada

The Honourable/L'honorable A. Anne McLellan
Ottawa, Canada K1A OH8


OCT 9 1998

[name and address of
recipient withheld]

Etobicoke, Ontario
M9C 5E6


Dear Mr. [withheld]

Your correspondence concerning the work of the war crimes program and the appointment of Mr. Neal Sher as a special adviser to the program has been forwarded to me by the Honourable Allan Rock, Minister of Health.  I have received many letters concerning these matters and have considered the issues very carefully.  In responding to your letter, I would like to share with you a brief summary of my view.  I apologize for the delay in responding.

Canada must not be a safe haven for war criminals or for persons who have engaged in reprehensible activity during time of conflict, regardless of time and place.  All fair-minded Canadians agree with this guiding principle.

To give effect to this guiding principle, Canada must take legal action against such persons.  If we do not, the guiding principle becomes a meaningless statement.

There is honest and heartfelt disagreement as to the appropriate legal means to be used to give effect to the "no safe haven" principle.  My position, which is shared by my Cabinet colleagues, is that all legal options must be considered, including immigration action, prosecution and extradition.  The position that we have adopted is highly influenced by the recommendations made by the Honourable Jules Deschênes in his groundbreaking Commission of Inquiry on War Crimes, of December 1986.  In any given case, the facts, the nature and quality of the evidence and our international obligations should ultimately govern the mode of proceeding that is selected.

Canada





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Legislative amendment is required to increase the potential viability of both the prosecution and extradition options.  Proposed amendments to the Extradition Act were recently introduced into Parliament to facilitate the extradition of suspected war criminals to stand trial before international tribunals.  Proposed amendments to the Criminal Code are currently being developed by my officials.  The changes, however, would not likely result in further prosecutions respecting the World War II period.

Immigration action is, of course, the most commonly used mode of proceeding.  This is true regardless of when or where the alleged reprehensible acts occurred.  In dealing with the World War II period cases, the Government must prove that the subject concealed material information respecting his or her war time activity, which, if known, would have barred his or her entry to Canada and subsequent acquisition of citizenship.  It is readily apparent that both the nature of the revocation proceeding and the potential consequences that flow from the proceeding differ from a criminal prosecution.  However, both schemes are legally sound and fair, although accomplishing different purposes.  Regarding the revocation scheme, I agree with Mr. Justice McKeown's finding in the Bogutin case wherein he concluded that the revocation process "in no way diminishes the respondent's right to be treated fairly in strict compliance with the principles of natural justice."

The pursuit of suspected war criminals and others involved in reprehensible war time activity is not directed towards any particular ethnic group.  In fact, a review of the cases commenced thus far should convince any objective observer that the common thread is not national or ethnic origin, but rather evidence of reprehensible activity during war time.  In recent years we have acted against persons from the former Yugoslavia, Bosnia, Rwanda, Germany, Ukraine, Lithuania, Holland, Latvia and Sri Lanka.  We are prepared to take action against any person, regardless of his or her background or present status within Canada, if the evidence warrants it.  If any person has specific information concerning the presence of a suspected war criminal in Canada, we would like to hear the details of the allegation from that person.

Canada has experienced some degree of success in dealing with persons involved in heinous conduct during World War II.  Revocation of citizenship has succeeded before the courts on two occasions, two other persons have consented to revocation and others have been removed prior to obtaining citizenship status within Canada.  In one instance, the federal government lost its revocation case before the Federal Court of Canada.  Many more revocation cases are now before the courts and we are hopeful for further successes in the near future.






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You also asked about the Department of Justice retaining Mr. Sher as a consultant to the war crimes program.  The United States is a number of years ahead of Canada, in terms of taking action against persons suspected of reprehensible activity during World War II.  Since 1979, they have revoked the citizenship of over 60 persons.  Given their extensive experience in the area, it is perhaps not surprising that we have looked to officials from that country as a source of expertise and guidance.

The appointment of Mr. Sher, a former director of the Office of Special Investigations (OSI), as a special adviser to the Canadian effort, has sparked some publiccontroversy.  I have received considerable correspondence concerning Mr. Sher, some of it positive and some of it negative.  A large proportion of the negative comments have centered around the Demjanjuk case and the extent of Mr. Sher's involvement in the case.

Many have written to express concerns over the handling of the Demjanjuk case by the U.S. Office of Special Investigations.  The fact that U.S. government officials failed to meet their disclosure obligations, a mistake that could have led to the conviction of the wrong person, is a matter of grave consequence.  Nevertheless, it is important to note that the U.S. 6th Circuit Court of Appeals conducted a lengthy investigation of the Demjanjuk case in the early 1990s.  It cited some members of the American OSI for failure to perform duties properly related to the disclosure of potentially exculpatory evidence.  However,Mr. Sher was not one of the OSI members cited by the Court.  In addition, while some beg to differ, my officials advise me that the Demjanjuk case is by no means a fair representation of the overall efforts of OSI.  And while we must be aware of that case, we must also give appropriate weight to the notable degree of success that OSI has achieved in an extremely difficult but important area of law.  During his tenure with OSI, Mr. Sher was, of course, an integral part of those successes.  Moreover, I am informed that he is a talented and highly competent adviser who can add strength to our war crimes program.  We can learn from both the successes and the failures of the U.S. effort.

As Minister of Justice, I can assure you that I am committed to seeing that all legal proceedings are carried out with the utmost fairness and respect for individual rights.  Each potential case is carefully scrutinized to ensure that the nature and quality of evidence warrants the commencement of proceedings.  A great deal of sober second thought occurs before any potential case sees the light of day.

I trust the above provides you with a clear summary of my view on war crimes matters generally and on the related decision to employ Mr. Sher as a consultant.  I am pleased that we agree upon the need to take action against suspected war




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criminals.  I hope that at least some of our differences will fade in the coming months as you see the type of cases we bring forward and the seriousness and thoroughness with which the courts of law treat these matters.

Thank you for writing.


Yours sincerely,

[signature]

A. Anne McLellan

c.c.:   The Honourable Allan Rock, P.C., M.P
        Minister of Health

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