It is the aim of this presentation to illustrate that the basis of the Canadian government’s 15 year effort to "bring Nazi war criminals to justice" has nothing to do with justice, but has everything to do with politics. In pursuing this aim, we will be shown the lengths to which our government has been prepared to proceed in order to achieve its political objectives as well as those of the powerful lobby that is driving the process. We will examine this development firstly by reviewing the prosecutorial and adjudicative aspects of the administration of justice, and then from the perspective of ongoing legislative adaptation, without which the political objectives could never be attained. The results of this lobby-inspired campaign are left to the Canadian public to judge.

The political origins of the issue of how Canada planned to deal with so-called Nazi war criminals are evident from the circumstances surrounding the creation of the Deschenes Commission by former prime minister Brian Mulroney in 1985. All indications were -- and this was confirmed in Justice Deschenes Report -- that the government of the day was reacting to a staged news report that Dr. Josef Mengele, an infamous Nazi, had at one time been admitted to Canada. This story, which proved to be contrived by Sol Littman of the Simon Wiesenthal Centre in Toronto and its supporters, was the signal for the commencement of a modern-day "witch hunt" for Nazi war criminals and its resultant "show trials," whose ostensible aim is to "bring Nazi war criminals to justice." As the war crimes prosecution drama plays itself out before a gullible and largely uncritical Canadian audience, we have been "entertained" by a full cast of characters, including the following:

* five (5) special units in government to deal with "Nazi war ciminals" Interdepartmental Operations Group; Department of Justice War Crimes Section; RCMP War Crimes/Immigration & Passport Section; a unit of CSIS (Canadian Security Intelligence Service); and the Resource Centre of the Department of Citizenship & Immigration.

* three (3) major lobby groups, acting as the driving force behind the scenes -- the Canadian Jewish Congress; the Anti-Defamation League of B’nai Brith; and the Simon Wiesenthal Centre.

* a largely compliant and fawning media, providing the public with full details of the gory allegations as each accused is identified, plus a steady diet of Holocaust survivors’ testimonials -- just to make sure that the public, the politicians and the judiciary are properly primed to reach the necessary conclusions.

* and, of course, the targeted suspects and their families, quite conveniently limited to the Ukrainian and Baltic communities.

From the time Justice Deschenes submitted his Report in late 1986, earlier estimates supplied by Mr. Littman of 6,000 Nazis living in Canada -- reduced to 1,651 actually investigated by the government up to 2000 -- have dwindled to about 82 "active" files, plus 147 in the investigative mode, currently being pursued by the federal Justice Department. The magnitude of this astounding discrepancy in the purported extent of the presence of "war criminals" in Canada is equalled only by the manifest failure of the government to bring a single suspect to justice by proving he actually committed acts of war criminality.

The efforts of the federal government, moving from the Mulroney era to the Chretien one, can be divided into 3 phases:

* attempts to bring suspects to justice using the criminal trial process, as Justice Deschenes had recommended

* efforts to side-step due process rights of the accused by resorting to the denaturalization and deportation process, which Justice Deschenes

* re-commencement of criminal proceedings, minus the earlier "impediments," as embodied in Bill C-19, and the prolongation of two-tiered justice (refugee claimants and visitors vs. naturalized Canadians) as embodied in Bill C-16.

After the necessary amendments to section 7 of the Criminal Code were hastily put into law in 1988, the federal government proceeded with 4 "war crimes" cases. That the record of the War Crimes Unit in prosecuting the accused individuals was a dismal failure in all 4 cases should not come as a surprise.

The basic reason for the government’s inability to obtain a single conviction lies in the fact that there was no probative evidence of war criminality on the part of any of the accused. In fact, in Pawlowsky, it was shown that the testimony of key Crown witnesses was obtained by the Russian KGB through beatings and other forms of coercion. Not only that, but defence counsel were subjected to appalling and incessant intimidation by the same KGB in their efforts to prepare their case while in Russia.

In Finta, the Supreme Court of Canada set out two key pre-conditions to a successful prosecution under the Criminal Code. It would have to be proved not only that the accused person had committed the act knowingly, but also that the prohibited act was, to the knowledge of the accused, based on "discrimination against or the persecution of an identifiable group of people."

It was obvious that Phase 1 would have to be abandoned, along with the basic due process rights of the accused, for only in criminal proceedings as they existed at that time would the accused have had an opportunity to be dealt with fairly.

Responding to the frantic urging of lobby groups, the government quickly dumped its use of criminal trials in favour of the much touted denaturalization and deportation process. This approach was introduced in 1995 by Justice Minister Allan Rock. It was given greater impetus in 1997 by his successor, Anne McLellan, whose eagerness to please the lobby demanding d & d was especially evident in the fanfare surrounding the hiring by the government of Neal Sher, former head of the U.S. Nazi hunting unit called Office of Special Investigations.*

The denaturalization and deportation process can be summarized briefly thus:

1. RCMP commences investigation by gathering "evidence" from unsuspecting persons by posing as officers conducting interviews.
2. Immigration officer serves a Notice of Intention to Revoke Citizenship based on alleged fraud (i.e. withholding information on purported war crime activity).
3. Respondent has right to hearing before a Federal Court judge, provided he can afford to do so (i.e. average outlay by government is 1 and 1/4 million dollars per case, while the cost to the Respondent is between $500,000 and $1 million).
4. Discovery process wherein Respondent is obligated to provide answers to War Crimes Unit prosecutors under oath (i.e. this is the second interrogation).
5. If Respondent is found to have obtained his citizenship fraudulently, Judge recommends to the Minister of Citizenship & Immigration that citizenship be revoked. This Minister then forwards a recommendion for a decision by Cabinet.

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* Sher-led O.S.I. efforts to cover up the framing of John Demjanjuk were described by one judge (Lively) as "judgments...wrongly procured as a result of prosecutorial misconduct that constituted fraud on the court"; and by another U.S. Judge (P.R. Matia) as "misconduct ... that must not be tolerated"; and by yet another Judge (G. Merritt) as "lying through their teeth."

6. There is no appeal. (However, one particular lobby group has managed to obtain intervenor status after the trial in order to make further representations, which resulted in the Judge changing his mind and ruling against the accused).
7. The matter goes to Cabinet to decide whether Respondent should lose his citizenship and be deported. (Which raises the question: why bother with the exercise if this determination is not a foregone conclusion?)

The primary faults with the Denaturalization & Deportation process, as that process is applied to so-called war criminals, are that it removes the safeguards found in the criminal trial process, it suspends the accused’s civil liberties, and in so doing sacrifices the accused’s rights on the altar of political expediency, as the following points illustrate:

a) Issue in a criminal trial is guilt or innocence of person accused of an actual crime. In a d/d case the issue is whether the person entering Canada 50 years ago gained entry based on "fraudulent or improper means, or by misrepresentation of a material fact" (ss. 10 and 18 of the Citizenship Act).

Note: issue is not one of guilt of accused based on criminal charges. Instead, the process involves revocation of citizenship, so that in place of war criminality there is substituted fraud. The fraud government prosecutors attempt to find is in the assertion that the person hid something about their past. In focusing on that "something," what the government is doing is applying criteria of materiality today to actions that occurred a half century ago, and which it is unlikely to have occurred to the accused as being unlawful at the time of his applying to come to Canada.

A true picture of the deviousness of this process can be seen in remarks made by judge William McKeown in the Vitols decision. Commenting on the tactics used by the prosecution (i.e. the Canadian government), judge McKeown stated at pages 103-4:
In the case at bar, the Minister is not seeking to show any participation by Mr. Vitols in atrocities against the civilian population. The Minister’s case is based on Mr. Vitols’ membership in criminal organizations. Notwithstanding this concession, counsel for the Minister from time to time sought me to infer otherwise." [emphasis mine]

b) Evidence in a criminal trial must be adduced as to: identity of victims; method of effecting their death; identity of accused as perpetrator of crime; and corroboration of evidence by outside sources. In a d/d case, the government simply makes an inference that immigration officials in 1950 were really asking certain questions upon entry into Canada. The government uses "expert historians" to state that certain groups were "implicated" in war crimes or were "sympathetic" to those objectives.

To illustrate the extent to which our government is prepared to sacrifice civil liberties, refer to the case of Ramirez (l992) where the Federal Court of Appeal created the notion of "individual complicity," by which the court stated a person can be held accountable for crimes against humanity "by participating in the shared objectives of the group, although not necessarily in the particular act."

c) Due process safeguards in a criminal case include: right to counsel during questioning; protection against self-incrimination; trial by jury (i.e. your peers); full details of crime with which a person is charged; full disclosure by prosecution of its case; right to cross-examine all prosecution witnesses in person; right to appeal. One must keep in mind that most or all relevant documentation at the time of entry into Canada have been destroyed by the government. In a d/d case, due process is by-passed.

d) Burden of proof in a criminal case is such that onus is on prosecution to prove to a court (i.e. that could be judge or a jury) that accused committed the offence with which he is charged beyond a reasonable doubt. In d/d proceedings, the only proof the government has to show is that the citizen breached the Citizenship Act "on a balance of probabilities," a much lower standard. (Note, this point has finally been criticized by the Canadian Civil Liberties Association, after repeated prompting and stubborn denial.)

a) Method of obtaining evidence. In no recorded case has a suspect been cautioned or read any rights or allowed to have his lawyer present during RCMP questioning (i.e. which the police refer to as "an interview"). In a criminal case, any "evidence" procured by the police in this fashion and used by the prosecution would be disallowed. To illustrate, refer to pages 96 and 101 of the Vitols decision:

"Mr. Vitols was not told that this was a criminal investigation, although the investigation had begun as such. Corporal Robineau [RCMP] believed that by the time the interview was carried out, it was no longer a criminal investigation. Since it was a civil investigation Mr. Vitols was not advised of his right to counsel. Corporal Robineau acknowledged that any admissions by Mr. Vitols would have been inadmissible in a criminal case." [emphasis mine]

"The [RCMP] officers, contrary to normal police practice, did not record their questions. They did, however, record parts of the answers. Nonetheless, as was stated by Fred Kaufman in his book The Admissibility of Confessions, 2d ed. (Toronto: Carswell, 1974), at 88, ‘[i]t is important to keep a complete record of all questions and answers, and to avoid the tendency to reduce to writing only that part of a statement which is clearly inculpatory.’ Unfortunately, this was not followed by the RCMP officers." [emphasis mine]

b) Examination for Discovery process - where, in order to coerce the suspect into providing incriminating evidence, the Justice Department has resorted to unbelievable lines of questioning, such as seeking to establish a person’s guilt based on the admission by him that he took no evasive action to avoid being taken prisoner and "working for the Nazis."

c) Introduction of evidence in mid-proceedings - thus placing an intolerable burden on the Respondent’s lawyers and rendering them incapable of presenting an adequate defence.

d) Withdrawal of war crimes accusations at the outset of trial or even during the trial - thus making a mockery of the contention that the Respondent obtained Canadian citizenship by fraudulent means based on misrepresenting their participation in or commission of war crimes.

e) Use of fraudulent evidence and laughable witnesses - these are intended to replace Canadian Immigration Department documents which were destroyed many years ago, substituting such first-hand evidence with material that fails to meet a single test of reliability or basic admissibility -- i.e. clumsy KGB forgeries; absence of continuity from source to courtroom; use of photocopies; irrelevant papers; and witnesses (from former Iron Curtain countries) who are unreliable to the point of absurdity, in some cases providing testimony that is historically impossible, and in others, admitting to having been beaten to extract their testimony.

f) Use of questionable "expert historians" - permitting their "evidence" to be admitted into the court record and to be used in future cases, when, in fact, these "experts" are present to make inflammatory statements (and have been rebuked for doing so by presiding judges), and not to assist in uncovering historical truth.

g) Perversion of burden of proof by placing such burden on the Respondent to prove he did not falsify his entry into Canada (a tactic brought on by the insufficiency of documentary evidence), to be overcome by reliance on the presumption of regularity in the execution of official tasks, which in turn is based on the erroneous notion that the Respondent is presumed to have entered Canada irregularly.

h) Simply changing the rules (i.e. the laws) as the Justice Department goes along. If one approach doesn’t seem to be working, a simple change of rules is made to accommodate the prosecution and to eliminate any obstructions. Several new laws have recently been hurried through Parliament, Ms. McLellan proudly announcing that they will make the handling of war crimes cases "more efficient." Which leads to Phase 3.

The current record of the Justice Department War Crimes Section prosecutors is four wins (Bogutin, Katriuk, Kisluk, Oberlander) and three losses (Vitols, Dueck, Podins).

The government’s first loss prompted Sol Littman to demand (Toronto Star, Oct. 20, 1998) that judges hearing these cases take "sensitivity training" in the "history of the Holocaust," which suggestion marks the absurd depths to which "the Lobby" is prepared to stoop to achieve their ill-begotten agenda.

Using the Rome Statute, adopted in July 1998 by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, as a smoke screen, the Canadian government is once again changing its course in its resolve to appease its lobby backers. Hidden in this euphoria are provisions in Bill C-19 that are both unsupportable and dangerous. In examining these shortcomings, it is important to note that there will be three fora (forums) for dealing with the offences of war crimes, crimes against humanity, genocide and "command responsibility":

* the International Criminal Court or ICC (to which Canada is an adherent)

* Canadian criminal courts to try these crimes allegedly committed within Canada (these are of no practical consequence)

Bill C-19 in its present form is unacceptable for a variety of reasons:

1. Bill C-19 proposes to treat differently crimes alleged to have been committed in Canada as compared to those alleged to have been committed outside Canada.

(a)"Crimes against humanity," as the charge relates to crimes outside Canada removes the requirement that the offence had to be committed against "a civilian population or any identifiable group of persons." Conversely, for ICC trials an act would not be a crime unless it is committed as "part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack." This establishes two standards -- the motivational element is judged by the international community backed by Canada to be vital; but in relation to trials for crimes outside Canada, our government has removed it from the Criminal Code (and so a burden on federal prosecutors has also been removed).

(b) Both "war crimes" and "crimes against humanity," while adequately defined for ICC, are not defined in relation to crimes committed outside Canada. This leads directly to burdens on the accused in the form of unfair and inconsistent application; subjective application by trier; opportunity for prosecution (as well as the media) to incite court against an accused; lack of certainty in preparation of defence; and so on.

2. Bill C-19 proposes to make provisions creating offences outside Canada retroactive; but the same does not apply to offences within Canada or ICC trials, with the following undesirable consequences:

(a) the same offence committed before passing of Bill C-19 by a person outside Canada is considered a crime, while if committed within Canada, it is not;

(b) the new crime of "command responsibility"* applies only to crimes alleged to have been committed outside Canada at any time, while if brought before the ICC, it is not. This places an intolerable burden on the accused, since it creates an offence based on what he should have done, not for what he actually did;

(c) elimination of the defence of superior orders in relation to future offences is understandable; its removal cannot be justified as applied only to trials involving alleged Second World War offences (i.e. retroactively).

3. The Act introduces offences to protect the integrity of the process, to protect Judges and officials of the ICC, as well as witnesses -- these include obstructing justice, obstructing officials, bribery of judges and officials, perjury, fabricating or giving contradictory evidence, and intimidation. These offences are to apply when committed in Canada or by Canadian citizens outside Canada. This means that, for example, a person fabricating or giving contradictory evidence after the ICC is established is liable to be prosecuted, but KGB operatives funnelling fabricated or coerced "evidence" to Canadian officials up to the present time are immune from these offences.

This piece of legislation is intended to complement Bill C-19 by removing all the "obstacles" to the prosecution of so-called war criminals in Canada. It is needed, the government states, to assist in efforts to keep Canada from being a safe haven for the criminal element. This, of course, is a euphemism for the Bill’s real purpose -- to eliminate the "loop holes" that caused criminal prosecutions to fail miserably, and that caused the d/d process to come under increasing criticism and scrutiny by the public.

Instead of taking the opportunity to revamp an archaic immigration processing approach, the federal government decided not to change those laws on citizenship revocation that MP Andrew Telegdi described as "screaming out for change."

Bill C-16 in its present form is unacceptable for these reasons:

1. Refugee claimants (no matter what they did in their country of origin or how they entered Canada) and visitors to Canada who commit serious crimes in Canada are both granted the protection of the Charter of Rights and Freedoms. Such protection has been removed for persons accused of war crimes as part of the d & d process (see Minister of Citizenship and Immigration v. Tobiass (1997), 218 N.R. 81 (S.C.C.)

2. Refugee claimants and visitors also have:
* the right to a hearing before the Immigration & Refugee Board
* an appeal by leave to the Federal Court Appeal Division, and even up to the Supreme Court of Canada
* the right of trial by jury
* case decided on proof beyond a reasonable doubt, and not on a balance of probabilities.

3. Final decision of Cabinet on a citizenship revocation matter is made without citizen being represented by counsel or even being present.

4. Amendments to the Act deliberately failed to take into account such unfairness as:
* no due process before the courts
* no modification of standard of proof
* no imposition of limitation periods, as is the case for the vast majority of other offences
* no right of permanent Canadian resident to ask Courts to review Cabinet order prohibiting Canadian citizenship.

To supplement the points already made, we will review other factors that have heightened the politicization of the process under discussion. In doing so, we are contrasting what the government claims in its annual reports entitled: "CANADA’S WAR CRIMES PROGRAM", with the reality of what is taking place. I would like to briefly review some of these here.

1. Then Justice Minister Allan Rock’s statement in Parliament January 31, 1995 when the "d & d" process was introduced by his government:
The key criterion in all proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered."

2. During an interview with Justice Department War Crimes Section acting Communications Director, Stephen Bindman, it was explained that the War Crimes prosecutors were "not looking for evidence of criminality in the pure legal sense. We are looking for guilty conduct in the broader sense," which, Mr. Bindman claimed, is to be found in the notion of "complicity." That term is defined in the government Report as:
Active membership in the organization responsible for committing proscribed atrocities is not required. A person is considered "complicit" if, while aware of the acts committed, the person contributes, directly or indirectly, to their occurrence." (page 26)

3. The "Thompson Affair" wherein a senior member of the Justice Department visited the Chief Judge of the Federal Court to complain that the pace of the proceedings were too slow, without counsel for the accused being present. The Supreme Court of Canada, although admonishing the incident as improper, nevertheless did not feel it warranted a stay of proceedings due to the heinous nature of the crimes being considered.

4. Justice Minister McLellan’s clear "signalling" tactics:
a) in September, 1998, upon the release of the Vitols decision, Ms McLellan was quoted in the media to the effect that she disagreed with the decision, and she was disappointed that Mr. Vitols would be allowed to remain in Canada. What is this if not a clear signal to other judges hearing d & d cases that she expects a result more favorable to the government: this is known as interference with the independence of the judiciary;
b) a matter of a few months after federal Court Judge Lutfy handed down his judgment against Serge Kisluk favorable to the government, Ms McLellan promoted Judge Lutfy to the Federal Appellate Court.

5. To indicate the degree of servitude the government devotes to "the Lobby," there is on public record the following statements by Cabinet Ministers:
a) Justice Minister McLellan, addressing the group WIZO, on November 13, 1997 [only minutes after giving short shrift to a group from UCCLA] promised them that they would see results in denaturalization and deportation of persons accused of war crimes against the Jewish people;
b) speaking only a matter of days after her swearing in as new Minister of Citizenship & Immigration, Elinor Kaplan told a Jewish group it gave her great pleasure that, as her first official act in office, she signed the deportation order of a "Nazi war criminal," making a mockery of any notion of objectivity or fairness on her part or on the part of the process in general.

6. To give you an idea of the pervasiveness of the hysteria created by the prosecution of so-called Nazi war criminals, none other than present Supreme Court of Canada Justice Louise Arbour, during a public speech, made this comment about the war crimes issue: "I cannot speak with detachment about [this aspect] of international law." Such comments do not instill a particularly high degree of confidence in our highest Court, in the event that a matter arising out of the current war crimes fiasco reaches the Supreme Court for adjudication.

7. Add to all the foregoing a litany of gaffes and faux-pas committed by the federal government recently, as evidenced in:
- allocating $1 and 1/4 million per "war crimes" case, while cutting back domestic police funding
- instructing border guards not to be too aggressive when questioning, at the Canada-U.S. border, persons of Russian extraction
- warmly welcoming all participants to the Francophonie summit, including representatives of 32 out of 49 countries with human rights violations amply identified by Amnesty International (i.e. torture, murder, etc.)
- RCMP Commissioner Zaccardelli’s demand for tougher organized crime laws to overcome "far-reaching and insidious consequences" of organizaed crime -- all of which was ignored by Ottawa
- Justice Minister McLellan’s rejection of Quebec government calls to outlaw membership in biker gangs, stating such laws would violate Canadian norms of justice and fair play -- although she has no problem having her prosecutors and her judges finding that membership in certain Second World War groups is equated with war criminality, and so on...

In the face of overwhelming odds, those few Canadians who have taken up the challenge of opposing the government’s mishandling of the war crimes prosecution issue have reason to be encouraged by several recent developments:

1. In the media, the Toronto Globe & Mail’s carriage of an editorial ("Will Nazi Hunters Misfire?" January 14, 1998), an article by the daughter of an accused, several letters to the editor, and a major piece of work by Kirk Makin entitled "For Crimes Not Committed" (February 20, 1999), as well as Prof. Ian Hunter’s article "Now we deport Canadian Citizens on the basis of mere guesswork -- and this we call justice?" (Report magazine, July 24, 2000), have resulted in the whole process being questioned.

2. Former MP Dr. Alex Kindy’s remarks August 8, 1999 before 3,000 people at the Ukrainian Cultural Heritage Village near Edmonton, with Justice Minister Anne McLellan being personally present, and Dr. Kindy glaring directly at her. In his remarks, he pointed out that, after the Deschene inquiry, Dr.Kindy had conversation with a superior RCMP officer about war crimes investigations, on which occasion he was told that, "of the top 100 cases investigated by the RCMP, in not one of them was a shred of evidence of war criminality uncovered."

3. The current legal manoeuvres by Helmut Oberlander’s lawyer, Eric Hafemann, to defend his client, which include a demand that counsel be present at Cabinet’s consideration of Oberlander’s denaturalization. In the course of submitting his written arguments, Mr. Hafemann included a legal opinion containing the critique of Judge Mackay’s reasons for judgment, prepared by retired Ontario Superior Court Judge and renowned legal expert, Roger Salhany, Q.C. This analysis of Oberlander’s case, which can easily be applied to all other cases decided against the accused, gives me cause for great optimism. Retired Judge Salhany made these observations:

"I have reviewed the evidence presented at the hearing and his [Justice Mackay’s] judgment and respectfully submit that the evidence does not support the conclusions reached by the learned judge."

[On the Judge’s reasoning in finding that a person is a member of an organization because he served their purposes] "One is either a member of an organization or one is not. The fact that one may be forced to do the bidding of an organization does not make them a member...[Judge Mackay’s] reasoning would mean that the janitor at the police station is not a member of the police force in a formal sense, but he is still a member because he provides a service to the police. In my respectful view, this conclusion is simply unreasonable."

The position of the Alberta Ukrainian Self-Reliance League on the Canadian government’s handling of the prosecution of so-called war criminals is:

* the process is an exercise, not in dispensing justice, but in its politicization,

* denaturalization and deportation is an abuse of process which violates the civil liberties of its victims, and the government is aware of this,

* there is no justifiable basis on which to implement the provisions of either Bill C-19 or Bill C-16 in their present form,

* the process has resulted in the government mishandling the war crimes issue, inflicting on the justice system irreparable harm, and thereby bringing the Canadian justice system and the administration of justice in this country into total disrepute.

Respectfully submitted by
Eugene Harasymiw, LL.B.
President, Alberta Ukrainian Self-Reliance League
Presented at the annual conference of the
Ukrainian Self-Reliance League of Manitoba,
St. Andrew’s College, Winnipeg
October 28, 2000