[192] Wasyl Odynsky, the defendant, was born in January 1924 in the village of Beleluja, in the Snyatyn region of the district of Stanislav, now Ivano-Frankivs'k, in western Ukraine, then within Poland. His father had one of the larger farms near the village and he lived with his parents and his siblings in the village. There he attended school until age 11 when he left school to work on the family farm.

[193] After the outbreak of World War II in September, 1939, by agreement between Germany and Russia that area in western Ukraine came under occupation of the U.S.S.R. The process of sovietization and pressures to establish collective farms were interrupted when Germany attacked the Soviet Union in June 1941 and German forces quickly occupied western Ukraine, including Beleluja and environs.

[194] In 1942 and early 1943 the Germans ordered many young people in the Ukraine removed for forced labour in Germany and many young men to report for service as auxiliaries with the German army and police services. In early February 1943 Mr. Odynsky was among young men born in the years 1920 to 1924 ordered to report to Snyatyn. There he was among five young men from Beleluja who were selected and ordered to report to Kolomyja a few days later to serve with German forces.

[195] Mr. Odynsky and his four colleagues did not report as ordered. They hid in Beleluja and the surrounding fields until German officers and Ukrainian police appeared in the village in late March or April and directed that if they did not report without delay they would be severely punished when caught or their families might suffer.

[196] The five young men from Kolomyja all turned themselves in and they were taken to Snyatyn and jailed for a time there, before being transferred to Kolomyja. There they were held in detention, first threatened with death, then told that there was a reprieve and they would be sent for training, but any further attempt to escape service would lead to their execution when caught, and if they avoided capture their families would be sent to concentration camps.

[197] They were then sent to Trawniki in the Lublin district under the German-imposed General Gouvernment. At Trawniki, the SS operated a forced labour camp and a training camp for training auxiliary SS forces as guards. After a month or so in training there, Mr. Odynsky and some 120 others were formed into a company of SS wachmanner or guards and transferred to Poniatowa. There the SS operated another camp with forced labour, primarily Jews from the Warsaw ghetto, manufacturing uniforms and other supplies, under direction of German civilian corporations, for the Army and SS forces.

[198] The auxiliary company including Mr. Odynsky spent a brief period at a barrack at the main camp at Poniatowa. Then they were moved to another part of the camp, the Seidlung or Settlement, a residential barrack area for some Jewish families who had once been comparatively well-to-do and for German civilians. The task of the Trawniki men, as the Ukrainian guards were known, was to guard the Seidlung, principally along a fence line around the sides of the exterior, against possible attack by partisans, and along the fence and road connecting the Seidlung to the main camp, to which forced labourers from the Seidlung were marched each day to and from work.

[199] Conditions for most forced labourer-prisoners at Poniatowa were not pleasant particularly for those housed in crowded barracks at the main camp. Food was scarce and discipline was severe. Within the factory areas German civilians were responsible for management of the work and workers. Outside the factory areas "capos", selected from among the forced labourers, were primarily responsible for discipline, backed up by some of the Trawniki men. The entire operation was under command of the German SS troops, apparently a small number, trained in the use of arms and force. The only evidence of those engaged as guards at the Seidlung, from Mr. Odynsky and three men who served at Poniatowa with him and who testified in Beleluja, was of their task as guarding the perimeter of the Seidlung and of facilities associated with the camp. They essentially deny direct involvement with the labourer-prisoners held and working there.

[200] After less than six months of that guard role and routine training, forced labour activities at Poniatowa, as at Trawniki and at another labour/death camp at Majdanek came to a sudden end. On November 3 or 4, 1943 German Waffen SS and SS police forces surrounded the three camps , entered them, and in a well-organized Operation, "Erntefest", or "Harvest Festival", in less than a full day slaughtered by shooting the many thousands of Jewish and other forced labourers and their families held in the three camps.

[201] During that operation Mr. Odynsky and his fellow Trawniki men were confined to their barracks by the SS. He saw some of the labourer-prisoners and families marched from the Seidlung area, and he and his colleagues heard shooting all day. When they were permitted to leave their barracks, after an estimated 15,000 persons at Poniatowa alone, were shot in the one day, there were no longer any labourer-prisoners or their families to be seen at the camp. A few were spared and ordered to burn the corpses which they refused to do, and so they too were executed.

[202] While one expert witness, a historian, suggested that Trawniki men had ultimately shot the survivors who refused, then burned them and the corpses of other dead prisoners, he admitted in cross-examination that there was no evidence to support that suggestion.

[203] Soon after Operation Erntefest, Mr. Odynsky was granted leave to return to Beleluja where his mother was ill. He became ill himself while there and was permitted to extend his leave but after some five or six weeks he was ordered to report back to Poniatowa, which he did. On his return, there were no forced labourers or other prisoners held there. His company remained there as guards for the facilities as a whole and occasionally he and they served as guards at other facilities.

[204] In June 1944 Mr. Odynsky's company and others were returned to Trawniki. The SS wachmann units were formed into SS Battalion Streibel, named for the SS commander of the labour camp who now became commander of the Battalion. It became a labour battalion and it moved westward, ahead of the advancing Russian forces, assisting in construction of defence works and in cleaning up damage, as it did for some weeks in the Dresden area in the spring of 1945.

[205] From there it moved to the west of Czechoslovakia and it was just west of Prague when Germany surrendered. Those in the battalion seeking to avoid capture by advancing Russian forces, Mr. Odynsky among them, moved west to surrender to American forces at Eger in Germany.

[206] In my opinion there is no doubt that Mr. Odynsky's service at Trawniki and Poniatowa, and even with SS Battalion Striebel was not voluntary. It was urged by the plaintiff that at some stage in 1944 or 1945, with the Russian forces advancing, he made no effort to escape or simply to be absent without leave, and thus his continuing service should be considered voluntary. He believes he would have been shot if captured after leaving and that he would have put his family in jeopardy, at least so long as German forces were in western Ukraine. There was no evidence about a particular time after which his service might be considered voluntary and I am persuaded that it continued to be involuntary until the end of the war.

[207] There was no evidence at trial that Mr. Odynsky participated personally in any incident involving mistreatment of prisoners or of any other person during his service with the SS guard units or with Battalion Striebel, as the plaintiff Minister's represenative conceded in discovery before trial.

[208] After a few weeks in the American POW camp at Eger, Mr. Odynsky and others were released and permitted to go to Augsburg. A number of Ukrainians gathered there and a camp for displaced Ukrainian persons was established at Gegengen and later a larger camp was formed at Somme Kaserne, both in the Augsburg area. Mr. Odynsky lived in both those camps until early in 1949 when he lived briefly at Leipheim shortly before he came to Canada.

[209] At Somme Kaserne he met and later married Maria, his wife, also from Ukraine, whence she had been removed by the Germans early in 1943 as a forced labourer to work on a German farm. They were married in 1948 soon after Mr. Odynsky was released from a detention camp where he had served a sentence after an arrest for what was apparently considered minor black marketing activity in relation to food.

[210] At Somme Kaserne in early 1949 Mr. And Mrs. Odynsky made application to come to Canada, he as an agricultural worker or farmer. They chose Canada in large part because Mr. Odynsky had family members, including a grandmother and uncles living from before the war in British Columbia. The Odynskys did not then speak or read English and the application was completed on their behalf by IRO office staff who were fluent in English and Ukrainian. Somewhat later they were summoned to Munich for examination in relation to their application.

[211] They attended at Funk Kaserne, another I.R.O. camp at Munich, as directed. There they were billeted while, as they recall, medical examinations were completed, a process which included essential x-rays and which took a few days. The only person they there encountered whom they believed to be a Canadian, was a medical doctor who examined them separately, speaking English they believe, and assisted by an interpreter.

[212] Mr. Odynsky's evidence is that he was not then interviewed by any other person whom he believed was Canadian and he was not asked any questions then about his wartime activities or where he had lived during the war years. That testimony is supported by Mrs. Odynsky's testimony. Further, Mr. Odynsky testified he was not asked questions about his wartime years when he was at the American POW camp at Eger, or at any of the IRO camps where he had lived, or in 1949 before he boarded ship, or during his trip to Canada or when he debarked and was landed at Halifax.

[213] It is possible that Mr. Odynsky's memory of his experience when he applied to come to Canada is an accurate depiction of what happened, at least in part, some 50 years before he testified, but I am not persuaded that it describes in full the entire process.

[214] Documentary evidence, and the affidavit and testimony of Mr. Nicholas D'Ombrain, establish the concern of the Government of Canada to ensure security screening by the R.C.M.P. of applicants for immigration to Canada, particularly those residing in former enemy countries, including displaced persons, in the late 1940's. In my opinion, in 1949, while it was not provided by statute or regulation, security screening was implemented pursuant to the Crown's prerogative power to preclude admission of aliens to Canada.

[215] The security screening system established, as it was in place in Funk Kaserne at Munich, based on testimony of three former immigration officers who served in Germany and Austria at the time, required applicants for immigration to be interviewed and passed or approved by a security screening officer of the R.C.M.P., then by a medical officer and then by an immigration officer. Only if he were satisfied that an applicant had passed examination by security and medical officers, and had met requirements under the Act, would the immigration officer grant a visa for an applicant to be landed in Canada.

[216] Mr. Andrew Kaarsberg, the immigration officer who stamped a Canadian visa stamp and affixed his signature on Mr. Odynsky's IRO travel document, testified that he would not have done so without first ensuring that he had already been cleared for security and for medical reasons and had satisfied himself, by interviewing Mr. Odynsky or by ensuring that another immigration officer was so satisfied, that he had met requirements of the Act and Regulations, and the labour category for which he applied.

[217] On a balance of probabilities, I find, in addition to his examination by a Canadian medical officer, that Mr. Odynsky was interviewed and passed by an R.C.M.P. security screening officer, and by a Canadian immigration officer, before a visa stamp and Mr. Kaarsberg's signature were placed on his IRO identification and travel document.

[218] In light of the documentary evidence, including the R.C.M.P. statement of security screening rejection criteria of November 1948, the purposes of that screening, and the testimony of a former R.C.M.P. security screening officer, I also find that, on a balance of probabilities, Mr. Odynsky was asked, by a security screening officer at Funk Kaserne in May 1949, questions concerning what he had done and where he had lived, particularly in the previous decade including the war years.

[219] Under the Immigration Act Mr. Odynsky had an obligation to respond truthfully to questions asked by those concerned to review his application to come to Canada. If, when asked about his experience during the war, Mr. Odynsky had responded that, even if not voluntarily, he had served as an SS-wachmann, training at Trawniki and as a guard at Poniatawa, both known SS forced labour camps, and that he served subsequently in SS Battalion Streibel, always under command of SS officers, it is my opinion that, on a balance of probabilities, an R.C.M.P. security officer would not have passed him for security. He would have been perceived as a member of the SS, even if he were not formally qualified by citizenship. In the alternative, if his wartime background were known to the security officer, he would have been passed for security only after significant questioning, which it is unlikely Mr. Odynsky would have forgotten even 50 years later.

[220] The facts of Mr. Odynsky's wartime experience were material, in light of the security criteria and their purposes, to the decision that he be admitted to Canada, for landing, whether he knew that or not. His personal knowledge that his wartime activities were material to that decision was not essential.

[221] 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. It is my conclusion that he was approved for admission to Canada because of false representation that he made or by his knowingly concealing material circumstances, i.e., about his wartime activities, before his visa was issued to permit him to come to Canada.

[222] I so find without requiring that all of the facts alleged in the Notice of Revocation issued to Mr. Odynsky in September 1997 have to be established by the plaintiff Minister. The relief the Minister seeks in this reference is declaratory, in accord with s. 18 of the Act. Sufficient factual basis for that relief is included in the allegations set out in the Notice of Revocation to provide the defendant with fair notice of the ground for the Minister's proposed action. The Minister must establish, on a balance of probabilities, a factual basis to support the award of the relief sought, a factual basis alleged within the terms of the Notice of Revocation, which I find is here established.

[223] Mr. Odynsky was admitted for landing in Canada on July 3, 1949, on the basis of a visa issued to him, as I find, which resulted by false representation or knowing concealment of material circumstances by him, concerning his wartime experience and activities. If admission on that basis were not considered lawful,⁷⁴ it would not meet requirements of the Citizenship Act prevailing in 1955 which required that he be lawfully admitted to Canada for permanent residence. Since he was not so admitted, he was not qualified and he could not obtain citizenship under the Act. Citizenship granted in those circumstances can only be considered as having resulted from false representation, express or implied, in relation to an essential prerequisite.

[224] On the other hand, if Mr. Odynsky's admission in Halifax was lawful, in light of the decision of Mr. Justice Letourneau for the Court of Appeal in Jaber v. Canada (Minister of Citizenship and Immigration)⁷⁵, his admission to Canada based on his false representation or knowing concealment of material circumstances provided the basis for his obtaining citizenship. Under s-s. 10(2) of the Act, Mr. Odynsky is deemed to have obtained citizenship by false representation or by knowingly concealing material circumstances.

[225] In considering any report to the Governor General in Council concerning Mr. Odynsky pursuant to s-s. 10(1) of the Act, the Minister may wish to consider that
1) on the evidence before me I find that Mr. Odynsky did not voluntarily join the SS auxiliary forces, or voluntarily serve with them at Trawniki or Poniatawa, or later with the Battalion Streibel;
2) 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;
3) no evidence was presented of any wrongdoing by Mr. Odynsky since he came to Canada, now more than 50 years ago;
4) 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.

[226] While those factors may be relevant to any discretion the Minister or the Governor in Council may exercise, they are not relevant in this proceeding.

[227] This Court finds, on a balance of probabilities in considering certain key factual issues, that the defendant, Wasyl Odynsky, was admitted to Canada for permanent residence in July 1949 on the basis of a visa obtained by reason of false representations by him or by his knowingly concealing material circumstances. Subsequently he obtained citizenship in 1955 when, having been admitted to Canada, on that basis, he is deemed, pursuant to s-s. 10(2) of the Act, to have acquired citizenship by false representation or knowingly concealing material circumstances.

[228] As a result this Court now issues the declaration requested by the Minister in this action, that is,
The defendant, Wasyl Odynsky, obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of s-s. 18(1)(b) of the Citizenship Act.

[229] Costs shall be as the parties may agree. Failing agreement, if necessary counsel may speak to the matter or provide written submissions for consideration of the Court.

(Signed) W. Andrew MacKay

JUDGE

OTTAWA, Ontario
March 2, 2001.