Canadian Jewish News
November 12, 1998

Judge urged to recuse himself from war crimes case

 By DAVID LAZARUS
Staff Reporter

MONTREAL - The Federal Court judge preparing to rule on whether alleged Nazi collaborator Vladimir Katriuk lied to enter Canada should recuse himself from the case, said a Montreal legal researcher.

Kenneth Narvey, who attended Katriuk's trial daily and is well known within Jewish community circles for his years of meticulously researching and chronicling war crimes cases, says that Judge Marc Nadon created a "reasonable apprehension of bias" through numerous comments he made during Katriuk's trial in Montreal last summer.

Among those comments, according to court transcripts, were June 15 remarks about, "Seagrams go[ing] after a little retailer" and about, "the forces of Seagrams [being] in some ways more extensive than those of the Government;" speculation over an unnamed Cabinet member saying, "[I]f the Jewish lobby wasn't after us we wouldn't be doing this;" an opinion that those who committed atrocities, "did not like what they were doing;" and the view that a Nazi collaborator is not, "necessarily a person of bad character."

According to Narvey, the "Seagrams" remark, "gives rise to a reasonable apprehension that Nadon has bought into the delusional anti-Semitic view, dating from the Middle Ages, that Jews are enormously powerful, malevolent beings."

Moreover, Narvey says Nadon made a "smoking gun" comment when he suggested to one of Katriuk's lawyers an argument that he could make.

Nadon told lawyer Nestor Woychyshyn, "I guess one thing you could say to me in argument, that it is possible that to those who had been in the French Foreign Legion and married a French national, the question [of how Katriuk spent the war years] wasn't asked..."

For Narvey, these comments, and others, clearly justify Nadon removing himself from the case.

"A person cannot be both assistant counsel and judge," Narvey said.

Crown lawyer David Lucas, however, does not agree with Narvey that Nadon's remarks, taken in their total context and not in an "isolated" way, give rise to the "reasonable apprehension of bias."

Although Lucas supported Narvey's bid in September to be granted intervenor status and to have his bias case heard - without supporting Narvey's actual allegations of bias - Lucas told The CJN that the time has come to "have the judgement."

Lucas reiterated his September position that Nadon's remarks were "unfortunate," but said that in the context of the entire trial, they were "totally innocuous."

"Bias is a prejudgement in favor of one of the parties," Lucas said. "I don't think if you look globally you can say that [is what you have here.]

"If you see how the whole hearing flowed, you won't find an apprehension of bias."

Nadon had been expected to decide the Katriuk case imminently, with Katriuk facing denaturalization and deportation if the Federal Court rules against him. He is charged with hiding his membership in a notorious Ukrainian SS battalion, implicated in numerous atrocities, at the time he applied to come to Canada.

Narvey, however, has since June sought twice to be granted intervenor status in the case, in the second instance last September so his bias allegations could be heard.

In both instances, Narvey's motions were denied by Nadon, and Narvey is now appealing the second rejection to intervene in the Federal Court of Appeal.

Meanwhile, on Oct. 19 in Toronto, before Federal Court trial division Judge Francis Muldoon, Narvey argued another motion, this one for a stay of proceedings pending the results of his appeal to intervene so his bias allegations could be heard. The reason for the stay motion was to make sure that Nadon not rule on the Katriuk case until Narvey's intervenor status is resolved.

According to both Lucas and Narvey, Nadon indicated in any case that he will not rule on Katriuk until Narvey's motion for a stay of proceedings is decided. It would be Nadon himself, however, who would hear Narvey's allegations of bias if he ultimately is granted intervenor status, and Nadon who would decide whether to recuse himself.

Should the bias allegations be heard and Nadon declines to recuse himself, Narvey indicated, he can and would appeal that decision in the Federal Court of Appeal.

The proceedings before Muldoon were attended by Narvey, Crown lawyer Lucas, and Katriuk's lawyers Orest Rudzik and Woychyshyn.

In an interview with The CJN, Canadian Jewish Congress national director Jack Silverstone called Nadon's transcript comments, troubling, disturbing, and said that they would have been "better left unsaid."

But he was reluctant to explicitly come out in favor of Nadon's withdrawal from the case, saying that he would rely on the judicial process to deal with the issue of Nadon's alleged bias.

At the same time, CJC is considering whether to seek intervenor status in the Court of Appeal, in support of Narvey's continued bid to acquire the same status on the question of bias.

Narvey's representations in Court have been made on behalf of himself and a coalition of seven Montreal-area synagogues, the "Coalition of Concerned Congregations," where he is its legal researcher and chief operating officer.