By KIRK MAKIN
JUSTICE REPORTER
Monday, June 10, 2002 – Print Edition, Page A3
On the first anniversary of a judicial ruling finding no evidence to link him to Nazi war crimes, Wasyl Odynsky dared to think the government might actually have lost interest in him.
Big mistake. Just a few weeks later -- early last month -- Mr. Odynsky got the letter he had been dreading. The federal cabinet would consider a Citizenship and Immigration proposal to strip the 78-year-old man of his Canadian citizenship.
"After 50 years, how can they do such a thing to an old person?" Mr. Odynsky said in his first interview since being accused in 1997 of concealing a Nazi past.
"I am completely innocent," Mr. Odynsky said, sitting stiffly in his daughter's Etobicoke living room alongside his wife Maria. "I never expected my own government would say that I came here illegally. How can they do this to an innocent person?"
Ill with prostate cancer and living on the rapidly dwindling assets the couple accumulated since arriving in Canada in 1949, Mr. Odynsky compared his treatment to that found in fascist dictatorships.
"My wife and I worked 37 years here," he said. "We tried to save money to buy a house. There were hard times, but we managed. When this happened, it was a shock. We lost everything we earned. Our house belongs to the bank. Our retirement money, money we saved for our kids -- all gone now."
The couple may never even occupy the burial plots they purchased in a Toronto-area cemetery, Mrs. Odynsky interjected emotionally.
"It just gets worse and worse," Mr. Odynsky said. "Now that they want to deport me, and I feel I am finished. If they take me from my family, that is worse than sickness. I would rather die."
How is it that Mr. Odynsky seemingly won the war to clear his name, yet is losing the battle to stay in Canada? The answer comes toward the end of Federal Court Judge W. Andrew MacKay's March 2, 2001, ruling.
Judge MacKay said while evidence was foggy on the point, he could only conclude that it is more likely than not that Mr. Odynsky lied to immigration officers about his wartime status.
Should cabinet elect to order his deportation -- and if the Immigration and Refugee Board agrees -- Mr. Odynsky would rank as the first unqualified success for a controversial bureaucracy that has rung up untold millions of dollars in the past two decades.
Even then, the back-door removal strategy is a far cry from the original government plan of holding criminal trials on Canadian soil. That tactic disintegrated in 1994, when the courts said the chances of assembling evidence strong enough to support a criminal conviction were minimal.
In disarray, federal prosecutors opted to pursue suspected war criminals for lying about their wartime activities in order to enter Canada. With a much lower legal hurdle -- a mere "balance of probabilities" -- their success rate soared.
To date, the government has won seven of 10 Federal Court rulings on the point. Six elderly defendants died before the entire process could be completed. Two men have left the country voluntarily, while two other cases are in progress.
If Mr. Odynsky is rendered stateless and eventually deported, he would become the first alleged war criminal forcibly removed from Canada.
Born in 1924 in Western Ukraine, Mr. Odynsky's village was occupied by the Germans in 1941. Like many young people, he was carted away to provide forced labour. However, he and four friends escaped. Judge MacKay noted that they turned themselves in only after learning that their families were threatened with execution.
Mr. Odynsky became a perimeter guard at a forced-labour camp in Trawniki, defending the camp against attacks by partisans. On Nov. 3 or 4, 1943, a massacre by German SS police took place that wiped out most of the Jewish captives in the area. Judge MacKay found that Mr. Odynsky was confined to his barracks at the time.
Mr. Odynsky met his wife-to-be at a displaced person's camp. Once in Canada, he drove a forklift for a trucking company until an injury forced him into early retirement.
The couple swore in court that harried Canadian officials asked them no details about their whereabouts during the war. Officials, however, countered that it was routine for them to ask such questions -- and they would have done so.
After weeks of evidence -- including an expedition to Ukraine by more than a dozen court personnel that was 50-per-cent paid for by the Odynskys -- the judge said he had no doubt Mr. Odynsky served involuntarily throughout the war and had never been a Nazi.
"There was no evidence of any incident in which he was involved that could be considered as directed wrongfully at any other individual, whether a forced labourer-prisoner, or any other person," Judge MacKay said.
However, faced with no reliable way to resolve the contradiction over the immigration interview question, Judge MacKay went with the official line.
"In my opinion, after careful consideration of the evidence presented, on a balance of probabilities it is more probable than not that Mr. Odynsky did not truthfully answer questions that were put to him concerning his wartime experience," he concluded.
Olya Odynsky, Mr. Odynsky's daughter, refers to this as "the Russian roulette of who the judge is." Grasping at evidentiary straws, she said, some judges have tended to err on the side of the defendant while others go along with the official account.
Throughout the interview, Mr. Odynsky was adamant about his innocence.
"I didn't want to go to the war," he said. "They told me: 'If you go away, we will shoot you on the spot. And if we don't get you, then we will take your family straight to concentration camps.' I had no choice. I had to stay there."
Mr. Odynsky said he believes that once Canadian officials looked under his arm and saw that he had no telltale SS tattoo, they didn't bother asking him about his status during the war.
His daughter spoke of how her spirits soared when she read Judge MacKay's words effectively exonerating her father. They plummeted just as quickly when she hit the spot where he concluded that Mr. Odynsky must have lied to enter Canada. However, Ms. Odynsky rediscovered her optimism when the judge stressed toward the end of his ruling that the minister of citizenship and immigration ought to pay heed to his positive conclusions about Mr. Odynsky's conduct during the war.
For good measure, Judge MacKay added: "Evidence as to his character from some of those who have known him in Canada -- uncontested at trial -- commended his good character and reflected his standing within his church and within the Ukrainian community in Toronto."
If cabinet rules against Mr. Odynsky, it will remain to be seen whether he can scrape up enough money to delay the deportation until his death -- as others have done. "My health is going," Mr. Odynsky said. "I have maybe another few years."