Toronto Sun | Jun. 13, 2004 | Peter Worthington

'Persecution, not prosecution'

EVERY "NEW" Canadian breathed easier when the Federal Court of Appeal unanimously reversed the clause in the government's new Citizenship Act, Bill C-8(1), that allows revocation of citizenship and deportation of naturalized Canadians without the right of an explanation or appeal.

Upset when they failed in past efforts to prove war crimes cases in the criminal court, the feds switched to the civil courts, where "proof beyond a reasonable doubt" was replaced by the less demanding "on the balance of probabilities" that some withheld information when they entered Canada after World War II.

Records of those days have long since been destroyed, hence the "probability" factor -- even though some "character" witnesses have testified they entered Canada without being asked about their backgrounds. At the end of WW II, only 18 RCMP officers were assigned to process tens of thousands of displaced persons. They were more concerned about screening communists.

The federal appeal court has restored Canadian citizenship to Helmut Oberlander, 80, of Kitchener, who was on the deportation list because, as a 17-year-old in Ukraine in WW II, he was forced to become a translator for a Nazi death unit.

Wasyl Odynsky, of Toronto, was in the same boat -- forced into a Nazi auxiliary unit as a perimeter guard at a concentration camp on pain of death to his parents if he refused or ran away -- as he once did, and was caught.

Two others slated for deportation against whom there is no evidence of war crimes are Josef Furman, 83, of Edmonton, and 91-year-old Jacob Fast, of St. Catharines -- both Ukrainian, both stripped of citizenship without appeal(2), both afflicted with Alzheimer's disease and incapable of defending themselves in court.

Liberal MP Andrew Telegdi (Kitchener-Waterloo) was born in Hungary and has fought this draconian legislation on grounds that, without an appeal process, naturalized Canadians are second-class citizens.

The Oberlander and Odynsky investigations were done by Federal Court Justice Andrew MacKay, who stressed there was no evidence these men had been involved in killing or war crimes. But he felt they "probably" weren't candid when they entered Canada.

The appeal court came down heavily on Anne McLellan, deputy PM and minister of public safety, who has been an ardent advocate of the now-discredited law. That won't help her re-election hopes in Edmonton on June 28, 2004. Immigration Minister Judy Sgro inherited the bad law but, before he went into politics, Justice Minister Irwin Cotler had long been a Nazi hunter and favoured deportation without appeal.

In Oberlander's case, the appeal court said the ministers and cabinet showed no concern about his "50 years of irreproachable life in Canada," and called revocation "patently unreasonable." The government and its ministers were chastised for regarding Oberlander as a war criminal, when he "served only as an interpreter."

Retired Ontario Superior Court Justice Roger Salhany was hired to review Justice MacKay's original findings -- and offered a devastating criticism that anticipated the findings of appeal court Justices Robert Decary, Edgar Sexton and Brian Malone.

"A judge who admits and relies upon evidence which is not admissible in law, makes an error in law," Salhany said. "A judge who draws an unreasonable inference from the testimony of a witness and relies upon it in reaching his decision, errs in law ... In my view, such errors were made in this case by the learned judge."

The government must now request leave to appeal to the Supreme Court of Canada, otherwise the citizenship revocation and deportation cases against aging Ukrainians of WW II must be dropped -- which seems inevitable.

Telegdi, who resigned on principle as secretary to former immigration minister Elinor Caplan on this issue, has called the government's campaign "persecution, not prosecution." He has urged Paul Martin (as he tried to persuade Jean Chretien) to abandon the legislation, which he sees an affront to democracy and the Charter of Rights and Freedoms. "For me, my citizenship comes before my party," says Telegdi, whose parents survived Nazi and Soviet camps in Hungary.

As for Oberlander, he has said of his life in Canada: "The first 41 years were wonderful, the last nine years terrible."

The appeal court ruling doesn't intrude on the prosecution of those suspected of war crimes in Bosnia, Croatia and Rwanda, where evidence is available and proof required.

This should probably read:

(1) "... clause in the government's proposed Citizenship Act, Bill C-18, which died on the order paper when Parliament was prorogued in the fall of 2003, ..."

(2) "..., both threatened with being stripped of citizenship without appeal, ..."