The Justice Department did its best to have Johann Dueck deported to Ukraine for alleged war crimes. But five years and a million dollars in legal fees later, a Federal Court judge concluded that the accused was exactly what he said he was: a simple man compelled under threat of death to act as a translator for Nazi thugs.

KIRK MAKIN ([email protected])

_The_Globe_and_Mail_ ([email protected]), Toronto
February 20, 1999

Johann Dueck was battling bladder cancer when the process server showed up at his home on May 6, 1995. The rotund 75-year-old man had known for months he was under investigation for war crimes. Still, he was petrified when he propped himself up in bed to accept his denaturalization papers.

The accusations were sketchy. They boiled down to this: The federal War Crimes Unit believed he had bamboozled Canadian immigration officials in 1948, concealing from them his wartime role as a whip-toting Nazi executioner.

The process server had barely exited the Dueck home in St. Catharines, Ont., when reporters materialized on the front lawn. They chased him down the street for quotes, then returned to pound insistently on the front door. Throughout the day, they aimed through the back windows with telephoto lens. Mr. Dueck's wife, Tatjana was mortified: "I didn't believe they could attack our house that way," she recalls.

It was barely the beginning. The Nazi war-crimes circus had come to town for a long engagement. Federal prosecutors would not fold their tents until two months ago, when a Federal Court of Canada judge systematically rejected their frail evidence that Mr. Dueck had participated in Nazi wartime atrocities. Judge Marc Noel concluded that Mr. Dueck was exactly what he had always said he was: a simple man compelled under threat of death to act as a translator for Nazi thugs.

Mr. Dueck's struggle to avoid being turfed out of the country he has called home for 50 years has had immense repercussions. His extended family is out the million dollars it funnelled into defending him. His children and grandchildren have been scarred for life. And as recently as last week, Mr. and Mrs. Dueck still lacked the stomach to leave their self-imposed exile and face the outside world.

Their story may or may not be emblematic of the half dozen denaturalization cases currently in motion across Canada. It most certainly does not detract from the Holocaust itself. In the main, it is a story of unrelenting personal tragedy, for Mr. Dueck didn't go through the Holocaust. But his life has become one.

***

Born in a tiny Mennonite community in Ukraine on June 23, 1919, Johann Dueck can trace his family's ancestry back to Germany. Because of his mixed background, Mr. Dueck learned as a child to speak Ukrainian, German and Russian.

As the Stalinists tightened their grip on the countryside in the late 1920s, middle-class landowners with strong religious and pacifist beliefs such as the Duecks were relentlessly hounded. The persecution reached an apogee around 1929, when Mr. Dueck's maternal grandfather was exiled to a Siberian work camp. Overnight, the remainder of the family abandoned their farm, certain Mr. Dueck's father would be the next to disappear.

A dozen times over the next eight years, the elder Duecks would load young Johann and his three sisters into a horse-driven wagon to flee to another part of Ukraine. Each time, they sought sanctuary among Mennonites, usually building a clay hut to serve as home.

"Before they got you, you move again," Mr. Dueck said last week, in the first and only interview he has given since his current prosecution began. Flanked by his lawyers - Donald Bayne and Peter Doody - as well as his wife and son-in-law, Randy Gillen, Mr. Dueck said: "If they had arrested my dad, we would have nothing. No food."

In 1937, the family settled temporarily in the village of Kalinovo. Mr. Dueck worked at a brick factory and later at an orphanage. Conscripted by the Soviet Union in September of 1941 to fight the German invaders, Mr. Dueck was given 10 minutes to say goodbye to his pregnant wife, Justina. It would be the last time he saw her.

The conscripts lived in boxcars until they reached the western flank of Ukraine six days later. They were told they would be digging anti-tank trenches with their bare hands. Disembarking, they were left in a field of a couple of kilometers from the German front with no commanders to organize them. "We were a big herd of people, and no food," Mr. Dueck recalls. "You could hear the front. On the second day, the German bombers came, and the machine guns."

The conscripts scattered for their lives. For the next three months, Mr. Dueck and a friend journeyed 800 kilometers back to their villages. Time and again, they blundered close to the ever-changing frontlines or narrowly avoided land mines. On one occasion, they were captured by Italian soldiers, force-marched into a field at gunpoint, and unaccountably released.

DUECK _from_page_D1_
'I never short anybody ... never hurt anybody'

Just before Christmas of 1941, a bedraggled Mr. Dueck dragged himself into Kalinovo. "No one was there," he says. "Just a few pigs and chickens were running around. Our house was empty, and the door was open."

He learned from neighbouring villagers that his parents and sisters had been sent to Siberia. Justina was dead, having been on a train that was bombed on route. Mr. Dueck had lost everyone.

Unsure what to do, he hung around the orphanage for a few weeks. Then he fell ill and was hospitalized for a month. Soon after his release, a German SS officer overheard Mr. Dueck speaking German. On learning that he also spoke Ukrainian and Russian, Mr. Dueck says, the officer told him he was to be an interpreter attached to the local police.

"Remember one thing," Mr. Dueck quotes the officer as saying. "Who is not for us, is against us. And who is against us, we shoot."

Mr. Dueck says his services were divided between the local gendarmerie and the police station, and that he was never issued a uniform or a gun. "I have never shot anybody," he says. "I have never hurt anybody. I was never present at any executions. I was never aware of any executions, except I heard of one after I got out of the hospital."� Mr. Dueck the only drama in which he took part during that period involved an attempt by him to persuade the police not to execute three men who had stolen railway ties to burn in their fireplaces. "They got 25 lashes instead of a bullet."

On April 11, 1943, Mr. Dueck remarried. Being of German blood, he and his new wife, Tatjana, were ordered to join in the retreat as the Red Army swept through the region that fall. "They took skilled workers and anyone who was German-speaking," says Mr. Bayne, who became immersed in the history of the region as he prepared to defend his client. "They didn't want to leave behind anyone who might be useful." Weeks later, the couple would learn that Mrs. Dueck's father was executed by the Russians within hours of their taking flight.

In the meantime, Mr. and Mrs. Dueck spent several days crammed together in boxcars before arriving in Poland. Processed from one office and bureaucracy to another, the couple lived in fear. They believed that, if Mr. Dueck were deemed suitable to be given German citizenship, he would be sent to the frontlines. If he were not, they would both be left behind to be executed or exiled by the advancing Russian army.

As it turned out, a third fate awaited them. They were sent to Austria, where they worked as forced farm labourers until the war ended. In 1948, an uncle of Mr. Dueck's living in Saskatchewan sponsored them as immigrants to Canada. Along with tens of thousands of other displaced person, they were perfunctorily screened and approved. On Oct. 10, 1948, the Duecks arrived by ship in Quebec City.

Some months afterward, a letter from Ukraine found its way to Mr. Dueck's uncle. It contained the startling news that Justina had not died. Not only was she alive, she had given birth to a baby daughter in Siberia soon after the couple were separated. But with his new family and an Iron Curtain standing between them, there would be no tearful reunion. "I tried to forget," Mr. Dueck says.

He and Tatjana eventually moved to St. Catharines to raise their son and two daughters. Mr. Dueck worked installing aluminum doors and windows until he retired at 65 in 1984.

Ten years later, two RCMP war-crimes investigators showed up at the Dueck home. They claimed that from the spring of 1942 to mid-1943, Mr. Dueck had been a chief or deputy chief of the Selidovka District (Raion) Police, an auxiliary force under the command of the German Order Police. They had witnesses who would apparently say he had participated in the executions of three members of a Jewish family, 15 local citizens, eight or ten prisoners and almost 20 soldiers.

As the Mounties asked their questions, Mrs. Dueck began to cry. "I was scared to death," she says. "Every year was getting better for us in Canada. Everything was working out. Then this came. I got confused. I felt like I was back in Russia. It was like the KGB coming to our house. The only difference was the KGB never came in daytime, always at night."

Mr. Dueck's eyes grow moist at the memory. "If there was a hole in the ground, I would have fallen into it," he says. "I've been in shock ever since."

In the months that followed, the family withdrew. Mr. Dueck never returned to the social club he loved. The couple ceased going to church. "They felt they were a burden, an embarrassment, to their children and their church," says Mr. Gillen, Mr. Dueck's son-in-law. "There is no consoling that feeling. It has been very painful to watch. Being a prisoner in your home is a trite expression, but I got to see the meaning of it."

Everything was directed into their defence. The children mortgaged their homes and emptied pension and education funds. Meanwhile, Mr. Gillen, a corporate lawyer, sought out Mr. Bayne, an Ottawa lawyer with a history of becoming passionately entwined in his cases without allowing his involvement to cloud his judgment in the courtroom.

The Duecks were facing a strange legal creature. The government claimed Mr. Dueck had committed horrible criminal acts, but the focus of the litigation was on whether he had lied about his "collaborationist" past to immigration officers.

The denaturalization strategy goes back to 1995, when the Supreme Court of Canada ruled in the Imre Finta that convictions were not likely to be forthcoming due to the frailties of decades-old witness and non-existent documentation. Former justice minister Allan Rock seized upon denaturalization and deportation as a solution. Far less proof is required. In fact, prosecutors need only show "on a balance of probabilities" that a suspect entered Canada fraudulently by failing to disclose his membership in a collaborationist organization.

Mr. Rock assured critics that no case would go ahead without there being evidence of criminal behaviour by the suspect. "If it cannot be proven, no proceedings will be considered," he told the House of Commons.

Both government and suspect face difficult hurdles in a denaturalization case. Immigration files containing the responses each immigrant gave to officials were long ago destroyed. In their absence, prosecutors try to convince judges it would have been routine to ask each applicant about their war experiences. Ergo, the suspect must have lied to get in.

"Their definition of a collaborator is so loose that you would lose half the immigrants out of this country," Mr. Bayne says. "And who is likely to be believed, anyway? These bureaucrats who said they did their jobs perfectly? Or these guys who speak with funny accents? In reality, these cases are being� decided on a highly technical basis that bears no relation to whether they participated in actual war crimes."

Remarkably, there is no avenue of appeal after a denaturalization decision. This means that the Federal Court of Canada judge who draws a particular case has absolute power. The entire exercise, according to Mr. Bayne, becomes something of a crapshoot. "The question for every family going through this is what is their particular judge going to find? So far, they have been going in all different directions. They have had to make up the rules as they go along, and there is no unifying procedure."

As a result, judicial findings often conflict - such as when Judge Noel found in the Dueck case that immigration officers in the 1940s lacked a statutory basis to even screen citizenship applicants. Other judges have accepted that there was. Mr. Bayne maintains the judgments have one thing in common: They consistently find there is a lack of evidence that the suspect engaged in actual war crimes.

But Terry Beitner, acting director of the War Crimes Unit, says that, since the facts of each case differ, each ruling stands alone. (He declined to comment on Mr. Dueck's trial pending the outcome of a challenge to the ruling by a third party.)

Mr. Beitner also says he has no compunction about substituting a civil process for a criminal prosecution. "There is no principle in law that requires the government to use� criminal law were other principles and remedies can be invoked," he says in defence of the unit's actions.

The case mounted against Mr. Dueck was based almost entirely on civilian witnesses recalling events of 60 years ago. Some had been interviewed several times over the years - beginning with the notorious KGB. "Everybody who got out of Ukraine was declared a war criminal," says Mr. Bayne. "What they were doing was getting at old enemies of the Soviet state."

Many were interviwed more recently by the RCMP.

Last May, Judge Noel travelled to Ukraine to hear the witnesses cross-examined for the first time. He was not impressed. "It became apparent that the evidence of many of these witnesses was based on pure hearsay and that no attempt had been made up to then to test their evidence," he recalled in his decision in December.

Before the Ukraine trip, Mr. Bayne and Mr. Gillen said they intuitively felt the judge was skeptical of Mr. Dueck's case. Then they sensed a turning point. "By the end [of the commission evidence], we had not heard anything that remotely placed him at any execution site," Mr. Gillen said.

After a great deal of pre-trial skirmishing, the trial finally began last October.

The director of the War Crimes Unit, Paul Vickery, promptly rose to inform Judge Noel that the government would continue its attempt� to show Mr. Dueck was a collaborator who had lied his way into Canada, but it was dropping every allegation that Mr. Dueck had participated in atrocities. Mr. Bayne was flabbergasted - and he wasn't alone.

"But isn't that the allegation?" asked Judge Noel.

The recollection irks Mr. Bayne no end.

"Four years of this, and then they stand up and casually abandon it. Hello, that is not what you were telling us when you went after these old men. Nobody is holding the government to account for what they are doing in these cases. The state is doing these cases to win. This just isn't fair or ethical. It is a terrible recipe for injustice."

In the decision he released many weeks later, Judge Noel said many witnesses had obviously been influenced by anti-Dueck speeches at a KGB meeting in the late 1980s. He concluded in particular that all four witnesses who identified Mr. Dueck as a senior police official were not credible.

The first, Olga Basova, was abruptly dropped as a government witness during the trial "because she was totally lacking in credibility," the judge noted. The second, Matrena Kozel, brought forward a hopelessly contradictory indetification of Mr. Dueck that was "a pure function of hearsay," according to Judge Noel.

Another - Fedor Petriv - had been 12 years old when the Germans arrived. He testified emphatically that "everyone" knew Mr. Dueck was the deputy chief of police, but then recoiled in shock on being informed that his estimate of Mr. Dueck's age was wildly off base, and recanted. Judge Noel says he was simply not credible.

The fourth - Lyubov Kobelskaya - directly contradicted previous statements she had made about Mr. Dueck striking villagers with a whip and rifle butt as he rode around in a horse cart. "I can attribute no credibility to the testimony of Mrs. Kobelskaya insofar as it relates to the respondent for the benefit of the KGB."

In contrast, Judge Noel was impressed by Vladimir Dyachenko, a man who lived across from the police station during the occupation. Mr. Dyachenko testified that he frequently saw Mr. Dueck walking back and forth from the gendarmarie to the police station - in civilian clothes and unarmed. "No once over the course of the occupation did he see the respondent perform any kind of police function," Judge Noel said.

Sergei Romanenko, an electrician at a post office in the same vicinity, echoed Mr. Dyachenko's observations.

In combination with the testimony of other witnesses, the judge said, he had come to an "irresistible" conclusion that Mr. Dueck was nothing more than a translator, and not in any sense a voluntary member of the police.

Judge Noel then embarked on an extensive review of the immigration process in 1948, concluding that Mr. Dueck would not necessarily have been asked about his wartime activities. Even if he were, the judge said, it is unlikely that Mr. Dueck would have been denied entry based on the security criteria of the day. He said the federal government was far more interested in rooting out Communists than wartime collaborators, and there was no blanket prohibition.

Mr. Beitner says he is unable to answer questions about the decision because it would be inappropriate until the court has ruled on a recent challenge of Judge Noel's ruling by a third party - Jewish activist Kenneth Narvey.

But he makes the point that death and illness robbed the Crowm of powerful witnesses - a circumstance Mr. Beitner acknowledges was largely created by decades of government inaction. "We cannot undo the past."

Mr. Baybe agrees that four or five potential witnesses have died in recent years. But most he says would have turned out to be beneficial to the defence.

Judge Noel ended his decision by ordering the government to pay costs to the Dueck family. The amount has not yet been established, but the effect of this order on the family has been inestimable. So was the timing of the judgment, just days before Christmas.

"I really wish I could tell him what it meant to our family for him to write that very difficult 150-page judgment before Christmas," says Mr. Gillen, tears rolling down his cheeks.

"It hurts so much, what they have done to us," says Mrs. Dueck. "It just feels like it still isn't over. We are not the same people any more."

"Almost five years of this - on top of what we went through in Russia," Mr. Dueck adds. "Sometimes, I still wake up in the morning and think: Is it true?"

***

The hunt continues.

Last year, the federal government promised to spend $46.8-million over three years to denaturalize and deport suspected war criminals and human-rights violators living in Canada. The Canadian Jewish Congress and B'nai B'rith Canada have watched the federal government's campaign particularly closely, urging the government not to slacken its pace.

When the case against Johann Dueck was rejected in December, CJC vice-president Jack Silverstone reminded the War Crimes Unit not to lose sight of the big picture.

"We urge them to redouble their efforts and bring as many cases foward as possible in the short time that remains to deal with this critical matter," Mr. Silverstone said.

As the campaign moves into high gear, the results are mixed.

In recent months, the government has unequivocally won two cases - those of Vladimir Katriuk and Wasily Bogutin - while losing its denaturalization cases against Mr. Dueck and Peteris Vitols.

Two other men suspected of having fraudulently obtained Canadian citizenship have voluntarily left the country, either because felt they could not win a legal battle or because they lacked the resources to fight.

Three suspects died prior to the commencement of proceedings against them, while three other cases have been heard by the Federal Court of Appeal and decisions are pending.

In a 1992 case that was the precursor to the current government strategy, botanist Jacob Luitjens was deported to the Netherlands for collaborating with the Nazi occupying army.

Two judges are currently hearing evidence in denaturalization proceedings against Michael Baumgartner and Wasyl Odynsky.

Kirk Makin