CESC | Apr. 27, 2003 | Eugene Harasymiw
Oct. 2003 presentation on Bill C-18

CANADA'S ETHNIC COMMUNITY AND THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION'S BILL C-18

Understandably, Canadian society, along with much of the world, recoiled in horror as events in America unfolded on September 11, 2001. In the wake of this human tragedy, the governments of both the United States and Canada hurried to pass legislation ostensibly aimed at addressing the problems engendered by what political leaders regarded as the new and bold terrorist threat. Unfortunately, these legislative initiatives also helped create, by political means, a disadvantaged underclass among their foreign-born citizens. This paper assesses the Canadian experience.

In Canada, the government hurriedly assembled what it called "anti-terrorist" legislation in the form of Bill C-36, with the intention of quick passage through Parliament, while the images of the carnage at the twin World Trade Center towers was still fresh in the public's mind. To their credit, part of the academic community responded at once with a conference held at the University of Toronto in November, 2001. This was followed by publication of the book The Security of Freedom: Essays on Canada's Anti-Terrorist Bill. Thanks to the efforts of Toronto's legal academic community and others, some of the more strident features of Bill C-36 were later withdrawn by the government.

However -- and this is not to the credit of Canada's academics -- Bill C-36 was not the first assault on the civil liberties of part of Canada's ethnic community, nor was it the first instance where Canadian laws effectively established two-tiered citizenship. In fact, academics were strangely passive when the federal government introduced a process (not voted on in Parliament) that, in effect, firmly established two grades of citizens, to the detriment of those born outside Canada.

While most Canadians support efforts on the part of authorities to deal effectively with persons who may have entered Canada and obtained citizenship by illegal means, it is very doubtful such support includes any element of selectivity, especially not on grounds of ethnicity. Canadians also support government efforts to deal effectively with those accused of terrorist acts, of violating human or international rights and of organized criminality; but again, it is unlikely such support would be forthcoming were such measures to be applied on a selective basis.

It is also unlikely Canadians would go so far as to approve these ends being pursued if they knew the effect was to create two-tiered citizenship, or at the expense of violating the civil liberties of the accused, or by means that respond to political lobbyists whose interests clearly have less than nothing to do with justice. Such measures do not, as Bill C-18's sponsors claim, advance either the values of a truly free and democratic society or "respect for the rights of others."

This paper submits that Bill C-18 is replete with instances of unacceptable means. As such, it is no different than the existing process under sections 10 and 18 of the current Act. Presently, an accused can lose his citizenship and be deported based on a hypothetical interview alleged to have occurred a half century ago, during which a hypothetical question was allegedly posed, to which the accused allegedly gave a hypothetical response which is judged by today's standards to have been "material" a half century ago. At that time there is no proof it would have crossed the subject's mind that certain information could affect his application to come to Canada or that a visa control officer would have relied on that information, especially not if the latter two events were assessed using criteria concocted four decades after this arrival in Canada.

Bill C-18: Lofty Ideals, Hollow Ring

Media releases and statements by the Hon. Denis Coderre, Minister of Citizenship and Immigration, on the introduction of Bill C-18 on October 31, 2002 contain glowing accounts of the ideals on which the new legislation stands. The Minister spoke of "a duty to protect the value of Canadian citizenship," using words such as "transparency" and "principles of a free and democratic society." He emphasized the purpose statement in the new Bill which he claimed would "protect the integrity of Canadian citizenship" and would "confirm that all citizens have the same status."

Minister Coderre was referring, in part, to section 3:

3. The purpose of this Act is     ……….
(d) to reaffirm that all citizens, no matter how they became citizens, have the same status;
(g) to promote respect for the principles and values underlying a free and democratic society.

A summary of the purported goals of the Bill is found in the lofty declaration in s. 12:

12. All citizens have the same rights, powers, privileges, obligations, duties, responsibilities and status without regard to the manner in which their citizenship was acquired.

Bill C-18 is Flawed

This paper will critique particularly those sections of Bill C-18 which seek to consolidate the process of revocation of citizenship, followed by removal of the subject from Canada. These provisions embody the government's current policy of "denaturalization and deportation" of alleged war criminals from the World War II era -- a policy pursued in earnest beginning in 1995. That policy, beyond the shadow of any doubt, is aimed squarely at the Ukrainian and Baltic communities in Canada. As such, it cannot mask its political nature either in noble objectives or by its inclusion, once again, in the citizenship area, lumped in with those now accused of terrorism (i.e. "security grounds"), "violation of human and international rights" and "organized criminality".

The basic flaws in sections 16, 17 and 18 of Bill C-18 include:

1. Bill C-18 perpetuates two-tiered citizenship

Bill C-18 perpetuates a system in which two classes of citizens exist in Canada. One class of citizen has full Charter rights, no matter what the subject matter of the offence with which they are charged. The other class has had their Charter rights removed: here we are referring to those who, under sections 10 and 18 of the existing legislation do not have Charter benefits once they are accused of entering Canada illegally. The Supreme Court of Canada has ruled that such proceedings do not attract Charter protection. [1] The Bill does not make it certain whether, under section 16 "declaration" proceedings, section 17 "determination" proceedings, or section 18 "annulment" proceedings, the Charter has any applicability. If it can be positively confirmed that the Charter does apply to proposed sections 16 to 18, second class citizens are those who were subjected to and endured existing proceedings -- there is no plausible explanation, then, why one group does, while another group does not, receive Charter benefits.

One class of citizen charged with the offences of false pretences, fraud or misuse of citizenship status (under sections 362, 380 and 58 respectively of the Criminal Code) is afforded the benefit of the Crown having to prove its case based on the burden of proof "beyond a reasonable doubt". Second-class citizens accused under section 17 of Bill C-18 face the prospect of loss of citizenship and removal from Canada based on the Minister making her/his case "on a balance of probabilities" -- a much lesser burden of proof. It is uncertain whether those who fall under the section 16 "declaration" process or section 18 "annulment" face the higher or lower burden on the Crown. It seems that this same lower standard prevails there as well. What is just as frightening is rationalizing why the Minister would proceed against any particular individual under section 17 instead of section 16, or vice versa, and to what extent "political" considerations enter that decision.

Under most offences not involving citizenship and immigration the burden of proving an offence lies on the Crown. Exceptions to this relate to presumptions and drawing of inferences based on evidence verifiable at the time of the alleged offence. The accused always has the safeguard of rebutting the presumption or inference, at which time the onus shifts back to the Crown. Second-class citizens are placed in a position where there is no verifiable evidence at time of application to gain permanent resident status, in addition to which the accused must produce evidence of her/his own innocence.

2. Bill C-18 invites political manipulation

The Chair of the Standing Committee on Citizenship and Immigration, at the commencement of public hearings into the new legislation on November 28, 2002, in reference to various procedures proposed in Bill C-18, stated that the process "becomes an administrative political action as opposed to a judicial action" [emphasis mine]. Mr. Noel St-Pierre, representing the Quebec Bar Association, referred to those proceedings as "a witch hunt in Canada aimed at anyone not born in Canada." [November 28, 2002 transcript] Exactly the same comment applies to the Ministerial discretion in commencing action under sections 16 and 17. The experience of the cases from 1995 to the present illustrates clearly the political considerations that went into prosecution of so-called World War II war crimes suspects. Of the 10 cases heard to date, plus 2 in various stages of progress, 7 involved either ethnic Ukrainians or those born in Ukraine, 3 involved Balts, 1 Romanian and 1 German.

This astounding selectivity has occurred in the face of the distinct probability that those involved in actual war crimes have, since World War II, not only taken up residence and been granted citizenship in Canada illegally, but remain in this country with impunity. [2] Equally shocking is that another group involved in terrorism have recently been allowed to remain in Canada, the government having effectively, and very quietly, granted them an extra-judicial (i.e. a political) pardon. [3]

In her essay analyzing Bill C-36 (the "terrorist" Bill), Martha Shaffer expressed similar concerns about selectivity, which we submit applies equally to Bill C-18:

"…the possible discriminatory use of these provisions [in Bill C-36] against members of racial or religious groups viewed as linked to terrorism as well as the disproportionate use of these provisions against politically unpopular groups should not be underestimated." [4]

3. Bill C-18 is procedurally flawed and unfair

It is the thesis of this paper that procedural flaws in Bill C-18 are antithetical to Canadian values and to due process. They include:

Section 16
  • Use of catch-all grounds of illegally acquiring citizenship by "false representation, fraud, or by knowingly concealing material circumstances" which grounds are blatantly used as an alternative to proceedings already in place in other penal statutes such as the Criminal Code [5] and the Crimes Against Humanity and War Crimes Act. [6] It is submitted that the trilogy of grounds presently used and being recommended for continuation expands the breadth of proceedings too far and unnecessarily duplicates processes already firmly in place that deal with these very matters.
  • Omission of a standard of proof for proceedings under s. 16 leaves too much open to uncertainty: is it "balance of probabilities" as in s. 17, or is it the criminal standard? It is crucial to answer this question with reference to the latter standard for both sections 16 and 17, since findings of fact are at stake which will be used to determine a person's citizenship status.
  • The record of "war crimes" cases since 1995 amply shows that the term "material circumstances" has been used as a "catch-all" provision wherein today's notions of materiality are applied to events a half century ago. There is no indication the term will receive clear definition under the new legislation.
  • One trusts Canada's civil libertarians would condemn the draconian provisions in clause 16(6)(b)(ii) -- Courts not being bound by legal or technical rules of evidence; and the Courts being allowed to rely on any evidence they consider "credible or trustworthy" -- but that has not happened.
  • Section 17
  • The definition of "information" is frightening; it leaves the process open to flagrant abuse by politically motivated forces pursuing vendettas that have nothing to do with preserving the values of Canadian citizenship or the rule of law. [7]
  • Presumably, civil libertarians oppose the un-Canadian procedures in paragraphs 17(4)(e), (h) and (j) i.e. hearings held in absence of accused; evidence supposedly sufficient for accused to be "fully informed"; Judge may accept evidence that is inadmissible in a court of law.
  • Suggesting in legislation that, after being exposed to the processes which precede paragraph (h), the accused is somehow "as fully informed as possible" is an oxymoron.
  • The concept of revoking citizenship and removing an individual from Canada "on a balance of probabilities" flies in the face of the fairness and equality this Bill's sponsors claim it seeks to provide. [8]
  • Removing the right of appeal or judicial review is inexcusable.
  • 4. Bill C-18 perpetuates the lack of fairness in denaturalization and deportation proceedings under sections 10 and 18 of the present Act

    Soviet "evidence"

    Most of the current "war crimes" cases heard before Federal Court Trial Division judges, prosecuted by the Ministers of Citizenship and Immigration and of Justice and Attorney General, have relied on Soviet KGB materials and witnesses, or that of the KGB's successor, the MSB. [9]

    Perversion of the legal maxim dealing with burden of proof

    In order to overcome the obstacles posed by lack of documentary evidence (long since destroyed by the government), the Ministers have relied on the presumption of regularity, conformity and uniformity of application in the execution of immigration officials' tasks. With the greatest respect, the legal maxim, as pointed out by the late John Sopinka, Q.C. [10] relates to the validity of official acts, until the contrary is proven. A Canadian citizen need not prove the validity of official actions which granted him/her that status. In denaturalization and deportation cases, the government has manipulated the process so that the citizen suspected of being a war criminal is presumed to have entered Canada illegally (i.e. irregularly). This places an impossible burden on the accused.

    The boundless flexibility of the term "collaborator"

    The Minister's chief "expert witness" at these World War II "war crimes" trials, Mr. Nicholas d'Ombrain, stated in his testimony in a number of cases, in reference to the category setting out the prohibition against allowing "collaborators" into Canada, that "its meaning is completely unclear to me." Of course, the Minister tries to expand the meaning to the absolute limit in each case. Such brazen and unethical attempts are sometimes rejected by the Courts. [11] While the government allows itself such liberties under the current law, concerned Canadians should insist that such issues would be decided in the proper (i.e. criminal) forum.

    Catch-all use of notion of "complicity"

    Although the term is found nowhere in the legislation under which denaturalization and deportation procedures unfold, the Ministers have given their prosecutors free rein to press the issue of "complicity" in war crimes -- since direct evidence is either lacking or is available only from laughable KGB sources. This term is defined by the government in the following manner: "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." [12] Concerned Canadians must ask themselves whether this concept has any place in the determination of citizenship status.

    5. Bill C-18 invites misuse of evidence

    It is my submission that existing legislation dealing with "denaturalization and deportation" creates an environment in which presiding Federal Court judges, in order to apply what they consider is the purpose of the process, abuse the laws of evidence to the detriment of the accused. Bill C-18 institutionalizes this phenomenon. This can best be illustrated in a critique [13] which Canada's leading expert on evidence prepared after analyzing a recent "war crimes" decision. Retired Justice Roger Salhany, Q.C. made these comments on the evidentiary aspects of the case:

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

    "...[A] judge who admits and relies upon evidence which is not admissible in law makes an error in law. A judge who makes an erroneous finding of fact from the evidence presented and relies upon that fact to reach a conclusion errs in law. A judge who draws an unreasonable inference from the testimony of a witness and relies upon it in reaching his decision errs in law. A judge who fails to apply the correct onus of proof or incorrectly applies it errs in law. In my view such errors in law were made in this case by the learned judge."

    "...[T]he learned judge seems to have imposed the onus of strict proof, not upon the Minister, but upon Oberlander and the witnesses called on his behalf. Their testimony about matters in which they were directly involved was rejected because of frailty of memory, while the evidence of the Minister's witnesses was totally accepted even though they were testifying about events of which they had no direct knowledge."

    "With the greatest respect, the learned judge was not present at the interview in 1970, does not know how and in what manner Oberlander was questioned, and therefore exceeds his role as a judge in assessing the credibility of the responses made by Oberlander when interrogated thirty years ago."

    "...[I]t is my opinion that the finding of the learned judge is not supported by the evidence and is unreasonable for the following reasons:

    (1) The finding that Oberlander was a member of Ek 10a in the face of the evidence was unreasonable.

    (2) There was no admissible and reliable evidence that Oberlander was ever questioned about his wartime activities by a Visa Control Officer and concealed them."

    He concluded his critique by pointing out (and this statement applies with equal vigor to all such proceedings):

    "The evidence relied upon by the judge would never be relied upon in a Canadian court of law to establish that something happened. It would be considered as no evidence at all."

    6. Bill C-18 perpetuates "guilt by association"

    In order to shoe-horn a suspect into existing proceedings, which are essentially repeated in proposed sections 16 and 17, the Minister resorts to accusations that the accused "must have" lied about membership in certain military or police formations. That the subject's "participation" was forced, coerced or made under physical threat is often discounted or ignored, as are all historical perspectives and factors involved.

    Such reasoning, if incorporated into Bill C-18, essentially alters or expands the criminal law. What it does is strain traditional criminal law principles by making membership in or association with an unlawful organization a crime -- without, of course, the need to prove any criminal act, and without, therefore, the need for the state to prove its case beyond a reasonable doubt. Bill C-18 would go even further by basing culpability of a subject not on the commission of offences already found in our criminal law, but on the contentious and vague rubric of "false representations, fraud or knowingly concealing material circumstances."

    Justice Salhany has the following to say about this type of reasoning:

    [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...[the Judge'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."

    Further rejection of this reasoning is found in Canadian case law, most recently in the decision in R. v. Ejiofor [14] where Justice Doherty, in a unanimous Court of Appeal judgment (Weiler J and Charron J concurring), stated at paragraph 8:

    "..this line of reasoning as suggesting guilt by association…offends one of the most fundamental principles of the criminal law. People can only be convicted for what they do, not for the company they keep."

    7. Bill C-18 is based on flawed logical premises

    The entire bases used to support the use of immigration procedures to deal with alleged "war criminals" rests on several unsustainable hypotheses:

    a) those who (allegedly) obtained citizenship by illegal means do not deserve the same constitutional protection and procedural safeguards as Canadians accused of other offences. In other words, such individuals have (somehow) forfeited their rights, due to their illegally obtaining citizenship.

    The flaw is obvious: how can these individuals possibly receive the benefit of the presumption of innocence when their rights are removed by the very process that is ostensibly set up to determine the accusations they face? In other words, as the Chair expressed to the aforementioned Parliamentary Standing Committee on November 28, 2002: "What happened to the principle of being innocent until proven guilty?" In short, which other offences call for the state to remove due process safeguards on the footing that the individual "must have" [15] obtained something illegally -- i.e. that he was guilty from the outset?

    b) those who (allegedly) obtained citizenship by illegal means must have done so to hide war criminality-also the converse argument that from the accused's entry into Canada can be inferred false representations, fraud or knowingly concealing material circumstances.

    This is a completely circular argument. The only act that would constitute acquiring citizenship by illegal means (i.e. false representations, fraud or knowingly concealing material circumstances) is one of war criminality. If the state cannot prove that such an offence took place, then the individual cannot be guilty of false representation, fraud or knowingly concealing material circumstances related to that act. The only way proponents of "denaturalization and deportation" can sustain their insistence that sections 16(1) and 17(2)(a) are related to acts of war criminality is reliance on the nonsensical adage: "saying so makes it so."

    I respectfully submit that a person is a war criminal only if prosecuted under either section 7(3.71) of the Criminal Code or else under sections 6 to 8 of the Crimes Against Humanity and War Crimes Act, both of which carry retroactive application, and after the corresponding appeal period has passed.

    c) those who (allegedly) obtained citizenship by illegal means did so by concealing material circumstances of membership in criminal organizations.

    Proponents of this view buttress their argument by pointing to the test of "materiality" adopted by the Supreme Court in the Brooks [16] decision: "whether … the misleading answers had the effect of foreclosing or averting further inquiries." This argument also finds expression in the line of reasoning: because the lies 50 years ago prevented inquiries at the time, "the trail of evidence has gone cold," such that these people cannot be allowed to profit from their lies.

    The flaws here are obvious, and numerous. Firstly, there is a presumption that the subject was, in fact, interviewed by a visa control officer (security officer) in the first place, and that he was asked specific questions in the second. Both assumptions are unfounded and in fairness can never be "inferred". Secondly, this also ignores the other part of the test which is that evidence that certain incorrect answers would have no influence in the admission of a person is also very relevant to materiality.

    Thirdly, this line of approach ignores the qualifying words "knowingly conceals." A person could not knowingly conceal a fact he had no reason to regard as either material to his application or as one certain to be relied upon by officials at the time of landing.

    Finally, the application of what was material a half century ago by use of standards invoked at the insistence of political lobby groups today is repugnant to the rule of law and due process. [17]

    Conclusion

    My belief is that a great injustice would be done if Bill C-18 were passed without either considerable deletions and amendments, or having the offending Part scrapped altogether. Leaving the Bill in its present form opens the government to legitimate criticism, much like that directed its way in the wake of the introduction of Bill C-36. The comments of David Dyzenhaus, Professor of Law and Philosophy at the University of Toronto, in his essay "The Permanence of the Temporary" [18] , with appropriate substitutions, apply to Bill C-18 sections 16 to 18:

    "The government introduces legislation that is inherently suspect from the perspective of the rule of law, but avoids in so far as this is possible provisions that seem in flagrant violation of rule of law principles. The dirty work is done by those charged with implementing the law and the government expects that judges who hear challenges to the validity of particular acts will put aside their role as guardians of the rule of law because in issue is the security of the state. In short, the government -- and the Parliament under its control -- can avoid responsibility for stepping too far outside the rule of law, since they leave that job to the security forces, and rely on judges to be either cowed or convinced into a stance of relaxing the discipline of the rule of law."

    In the foregoing excerpt, it is submitted, the words "is the security of the state" can be substituted with "are 'heinous' crimes associated with World War II". The words "security forces" can be substituted with "R.C.M.P."

    In the government's headlong frenzy of carrying out the denaturalization and deportation process presently found in sections 10 and 18 of the current Act, the words of the late John Sopinka, Q.C. bear repeating:

    "One must not be blinded by the understandable desire to do justice and see that responsible culprits are punished. This [denaturalization and deportation] cannot be used as an excuse for trampling upon the rights and freedoms of Canadian citizens and risking the setting of a precedent for the future … [I]f rules are successfully bent today to permit denaturalization and deportation or extradition of suspected Nazi war criminals … despite the potential injustice which this would cause, a precedent could well be set for future actions against other categories of citizens." [19]

    Which other categories of citizens? Approximately six million foreign-born Canadians received their citizenship status after entry into Canada. Every single one of these individuals, and to an extent the ethnic groups they represent, is now subject to revocation of their citizenship and removal from Canada based on the processes now in place and which Bill C-18 and its backers seek to augment. That process has, since 1995, clearly created a system of two-tiered citizenship in Canada. It is a process that removes the civil liberties of its victims, pitting them in a grossly uneven contest with the limitless resources of the state.

    Yet, there is no demonstrably pressing need for the government to adopt or continue its assault on its non-Canadian born citizens. Neither the events of "9/11" nor events 60 years ago -- real or imagined -- in war-torn Europe justify in any way the diminution of the rights of naturalized Canadians.

    Participants at this Conference, along with the groups they represent, have an opportunity to remove this blot on Canada's citizenship regime and on our justice system. Do not squander that opportunity.

    Respectfully submitted this 27st day of April, 2003.

    Eugene Harasymiw, B.A.(Hons.), LL.B.


    END NOTES

    [1] Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.); affirmed in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 plus the cases that followed.

    [2] In fact, two such individuals have boasted about their war crime activities, voluntarily carried out for Communist regimes, in books published in Canada, but the authorities state they have no intention of dealing with them. A third case involves a woman who recently was interviewed in the media, and who admitted to a role in atrocities committed by a known Communist paramilitary unit. Strangely, the federal Justice Department indicated it has no interest in pursuing this case either.

    [3] Montreal La Presse, December 4, 2002, "Canada accepts 81 former terrorists". The report cited an internal Immigration Canada document obtained under the Access to Information Act. That document stated the federal government allowed the 81 individuals to settle in Canada, knowing all were members of known terrorist groups, on the grounds that they "are not a danger to national security". Furthermore, Immigration Canada stated it is prepared to admit 25 ex-members of known terrorist organizations into Canada every year, "as long as they pose no security threat". Entry into Canada and settlement of these groups was spread over the years 1996 to 2001, and was based on the individuals being those "with no personal history of violence". It is assumed that it is the Minister of Citizenship and Immigration who decides which criteria apply to "personal history of violence," and that no foreign government decides this issue. If this report is accurate-and Citizenship and Immigration Canada has not issued a denial-then we have yet another instance of two-tiered citizenship: those who have belonged to various terrorist groups exempted by Ministerial fiat, and those who have lived in Canada for a half century, have not been found to have committed any war crimes, but who supposedly lied about something upon entry into Canada for which loss of citizenship and removal from Canada is apparently warranted.

    [4] Martha Shaffer, "Effectiveness of anti-terrorism legislation" in The Security of Freedom, eds. Ronald J. Daniels, Patrick Macklem and Kent Roach (Toronto: U of T Press, 2001) 200.

    [5] (3.71) Notwithstanding anything in this Act or any other Act, every person who, either before or after the coming into force of this subsection, commits an act or omission outside Canada that constitutes a war crime or a crime against humanity and that, if committed in Canada, would constitute an offence against the laws of Canada in force at the time of the act or omission shall be deemed to commit that act or omission in Canada at that time if,

    (a) at the time of the act or omission,

    (i) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity,
    (ii) that person is a citizen of, or is employed in a civilian or military capacity by, a state that is engaged in an armed conflict against Canada, or
    (iii) the victim of the act or omission is a Canadian citizen or a citizen of a state that is allied with Canada in an armed conflict; or

    (b) at the time of the act or omission, Canada could, in conformity with international law, exercise jurisdiction over the person with respect to the act or omission on the basis of the person's presence in Canada and, subsequent to the time of the act or omission, the person is present in Canada.

    [6] S.C. 2000, c. 24, in force October 23, 2000:

    6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada

    (a) genocide,
    (b) a crime against humanity, or
    (c) a war crime,
    is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.

    (1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence. ……….

    8. A person who is alleged to have committed an offence under section 6 or 7 may be prosecuted for that offence if

    (a) at the time the offence is alleged to have been committed,
    (i) the person was a Canadian citizen or was employed by Canada in a civilian or military capacity,
    (ii) the person was a citizen of a state that was engaged in an armed conflict against Canada, or was employed in a civilian or military capacity by such a state,
    (iii) the victim of the alleged offence was a Canadian citizen, or
    (iv) the victim of the alleged offence was a citizen of a state that was allied with Canada in an armed conflict; or
    (b) after the time the offence is alleged to have been committed, the person is present in Canada.

    [7] "Informants" during the Deschenes Commission inquiry reported as war criminals neighbors who owned German shepherd dogs and spoke with an accent, or who reported individuals as war crimes suspects who, it turned out, were born during World War II. Such maliciousness has never been investigated and the perpetrators have never been brought to account for their perfidy.

    [8] "It is, in my submission, cruel and inhuman to uproot an individual from his family and whatever life he has built … as a productive Canadian on the suspicion that he might have been a war criminal. It is precisely because of the 'evidentiary advantage' in deportation and denaturalization proceedings that I would submit that the Commission should reject such proceedings as a means of bringing war criminals to justice. No punishment should be inflicted upon a suspected war criminal unless his or her guilt is fairly established by Canadian standards of justice." [emphasis in original] Sopinka, John, Q.C., "Submission to Commission of Inquiry on War Criminals", May 5, 1986, 34-35.

    [9] In Canada (Minster of Citizenship and Immigration) v. Bogutin, [1998] F.C.J. No. 211, McKeown J stated at paragraph 35: "I have also taken into account that some of the witnesses in Ukraine were party to a petition addressed to Canada as a result of their attendance at a meeting condemning Nazi collaborators orchestrated by the Soviet Union [KGB] during the Cold War."

    In The Minister of Citizenship and Immigration v. Vitols, [1998] F.C.R. Docket T-310-97, McKeown J stated at paragraph 242: "In my view, this book [Who Are They? (Riga: Latvian Publishing House, 1963)] was part of a Soviet KGB misinformation campaign. As Professor Ezergailis noted, it was common for the KGB to spy on anti-communist émigré groups and attempt to discredit them." And later at paragraph 256 this tell-tale judicial conclusion: "In my view, all six allegations [of war crimes against the accused prepared by Justice Minister Anne McLellan] were derived from the KGB book…"

    In Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] F.C.R. Docket A-179-99, Noel J stated at paragraph 85: "The testimony of this witness insofar as it identifies the respondent [Mr. Dueck] as the assistant to the chief of police is a pure function of hearsay, probably gathered by the witness as a result of the KGB's efforts to obtain evidence against the respondent. It also seems clear that, contrary to what she asserted, she never came into contact with the respondent."

    Member of Parliament Irwin Cotler based his case on the unreliability of Soviet KGB "evidence" in the internationally famous Scharansky case, pointing out in his court brief the tampering of witnesses in that political trial. But Prof. Cotler has remained strangely silent on precisely these abuses presently occurring in denaturalization and deportation cases in Canada's Federal Court.

    [10] Sopinka, supra Note 8, 32.

    [11] "'Collaboration' was a notion that was undefined in 1948 and on that meaning all applicants from previously occupied territories in Europe were susceptible of having assisted the enemy in one way or another. Keeping this in mind, it is unlikely that had a blanket prohibition against collaboration been applied in 1948, 70,000 immigrants would have sailed to Canada from Continental Europe in that year." Noel J, in the Dueck case, supra paragraph 257.

    [12] Canada's War Crimes Program, 3rd annual report 1999-2000, 26.

    [13] Hon. Roger E. Salhany, Q.C., Letter of Opinion, June, 2000 (copies received by all Cabinet members).

    [14] [2002] O.J. No. 891 (Ont. C.A.)

    [15] For a judicial statement on the absurdity of such a result, see McKeown J in the Dueck case, para. 224 [emphasis added]: "Thus, on the evidence before me, it has not been demonstrated that the respondent [Dueck] would have completed an application for a Canadian visa which requested information which would have disclosed his wartime activities or that he would have completed an IRO form which would have been relied upon by the security officer reviewing his application."

    [16] Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850 at 873.

    [17] For a clear statement rejecting such misuse of the notion of "materiality", see Vitols, supra Note 9, especially paragraph 40:

    "The [Minister]…argues that the act of voluntarily joining a police organization, knowing that they would have been tainted with these earlier killings, is sufficient to make Mr. Vitols a collaborator. However, the case at bar is concerned with whether Mr. Vitols obtained citizenship by false representations or fraud or by knowingly concealing material circumstances. Accordingly, at issue is whether Mr. Vitols' wartime activities, if disclosed, disqualified him from admission into Canada in 1950. We are therefore concerned, not with contemporary understandings of 'collaboration,' but with the view taken by Canadian security and immigration authorities at the relevant time…" [emphasis ours]

    Furthermore, use in this Submission of the expression "due process" encompasses those safeguards that are understood as guaranteeing protection of an accused person. They include the right to be informed of the nature of police questioning; a "detained" person's right to remain silent (as confirmed in R. v. Oickle, [2000] 2. S.C.R. 3); the right to counsel, and so on. These rights are not only flagrantly violated in the government's "evidence" gathering process, but are Charter protected; however, as indicated earlier, such rights have been removed from those subjected to these types of proceedings.

    [18] The Security of Freedom, supra Note 4, 29-30.

    [19] Sopinka, supra Note 8, 47-48.


    Bibliography

    Publications

    Dyzenhaus, David, "The permanence of the temporary" in The Security of Freedom. Toronto: U of T Press, 2001.

    Shaffer, Martha, "Effectiveness of anti-terrorist legislation" in The Security of Freedom. Toronto: U of T Press, 2001.

    Papers

    Sopinka, John, Q.C. "Submission to Commission of Inquiry on War Criminals", May 5, 1986.

    Newspapers (Internet)

    La Presse, Dec. 4, 2002. http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1038995156279_118//

    Statutes

    Criminal Code of Canada
    Crimes Against Humanity and War Crimes Act

    Government Reports

    Canada's War Crimes Program, 3rd annual report 1999-2000.

    Cases

    Canada (Minster of Citizenship and Immigration) v. Bogutin, [1998] F.C.J. No. 211

    Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] F.C.R. Docket A-179-99

    Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.)

    Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391

    The Minister of Citizenship and Immigration v. Vitols, [1998] F.C.R. Docket T-310-97

    Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850 at 873

    R. v. Ejiofor, [2002] O.J. No. 891 (Ont. C.A.)

    R. v. Oickle, [2000] 2. S.C.R. 3.