Winnipeg Free Press | 09Jun2006 | Marco Levytsky

Quest for 'Nazis' hurts the innocent

In a recent commentary (Remember the murderers, Winnipeg Free Press, April 26, 2006), David Matas, senior legal counsel to B'nai Brith Canada, attempted to justify a process that undermines the civil liberties of more than six million naturalized Canadians, under the guise of bringing "Nazi war criminals" to justice.

He named four individuals -- Jacob Fast, Wasyl Odynsky, Helmut Oberlander and Vladimir Katriuk, and claimed that because of compelling evidence linking them to Nazi-era crimes against humanity, the War Crimes Unit of the Department of Justice had prosecuted them.

As any lawyer knows, prosecuting attorneys may determine whatever they wish, but it is meaningless if the court finds otherwise. In none of these four cases did the federal courts find any evidence of any individual crimes whatsoever -- let alone "compelling" evidence.

What the court did find was that "on a balance of probabilities" they lied about their past upon coming to Canada. Balance of probabilities means simply that the decision is 51 per cent on one side, as opposed to 49 on the other.

It falls way short of the "beyond a reasonable doubt" standard of criminal court. And there is no way to prove conclusively whether they lied or not upon coming to Canada, because all the immigration records of that period have been destroyed.

The final decision on the revocation of a person's citizenship rests with a committee of cabinet, which makes the government both prosecutor and court of last appeal.

No judicial appeal

Since there is no judicial appeal process, no precedents can be established. Judges have ruled both for and against respondents in similar cases, so the whole system amounts to a judicial lottery where the victim's fate depends upon whichever judge he gets.

But because the government is under no obligation to present any evidence of any individual crimes under our current citizenship revocation system, they haven't done so. And in the most recent cases they haven't even bothered to charge the individuals with any individual crimes.

In the three cases where the Department of Justice did attempt to bring evidence to court, it was thrown out by the judges because it had been obtained by the KGB through torture.

One may well ask what is the government doing bringing forward evidence by an agency well-known for its crimes against humanity? This question should have been raised when upon announcing the launch of the Denaturalization & Deportation policy in a January 1995 news release, the government stated that a major step forward in its investigations was an agreement that gave it access to KGB files, but unfortunately it wasn't.

Considering the source of the government's charges against these men, it is not a coincidence that all four individuals cited by Matas come from Ukraine as do the two individuals whose case are now before the court -- Josef Furman of Edmonton, and Jura Skomatchuk of St. Catharines.

In the Odynsky case, one of those where no individual crime was alleged in the government's Statement of Claim against him, Justice Andrew MacKay found that his service as a guard at a labour camp was involuntary (in fact he was threatened with death after he attempted an escape) and that there was no evidence that he participated in the mistreatment of any prisoner anywhere at any time.

Actually revoked

In the case of Oberlander, whose citizenship was actually revoked by cabinet order, it was reinstated by a unanimous vote of the Federal Court of Appeal, after Oberlander's lawyer took the unique step of appealing the revocation process itself. In this May 31, 2004 ruling, which was not appealed to the Supreme Court, Justice Robert D�cary, with the concurrence of Justices J. Edgar Sexton and B. Malone told the government "it cannot apply the war criminals policy to a person unless it first satisfies itself, to use the very words of the policy, that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity.' "

The fact that revocation of citizenship can be used in such an arbitrary manner prompted the Parliamentary Standing Committee of Citizenship and Immigration last year to determine "that the potential loss of citizenship is of such fundamental significance to the person concerned that fraud should be proven beyond a reasonable doubt in a criminal court, that the legal protections of the Canadian Charter of Rights and Freedoms -- specifically sections 7 to 14 -- must apply, and there should be no special limits placed on the right to appeal."

Until those recommendations are enacted, the Charter rights of every immigrant are in jeopardy.

Marco Levytsky is the editor and publisher of the Edmonton-based, nationally distributed Ukrainian News, and a member of the National Justice Committee of the Ukrainian Canadian Congress.