In general, whenever an accused is required to disprove, on the balance of probabilities, any factor affecting the verdict of guilt or innocence, Charter concerns can arise with respect to the presumption of innocence. It is not the general practice under the Criminal Code for reverse burdens to be put on the accused with respect to guilt or innocence itself. Convictions are regularly obtained under existing provisions of the Code, with the full persuasive burden remaining on the Crown.
This is a normal part of our legal tradition in Canada.

Liberal Member of Parliament Borys Wrzesnewskyj, in a speech in the House of Commons, October 21, 2005.

The preceding statements were made by Borys Wrzesnewskyj, during the course of debate on a government bill to create a new Criminal Code offence for altering, removing or obliterating the vehicle identification number of a motor vehicle. The legislation is intended as another measure to combat auto theft.

As originally drafted by the late Independent Member of Parliament Chuck Cadman, there would have been a reverse onus of proof, if a person wanted to raise a defence of lawful excuse for the acts undertaken. It would not be up to the Crown to prove that the act was unlawful and without excuse as much as it would be up to the accused to prove that he had a lawful excuse. The distinction is important, since the burden or proof in "reverse onus" situations is typically on the balance of probabilities, rather than beyond reasonable doubt, but even this lower burden of proof is generally regarded as offensive, in reverse onus situations.

Mr. Wrzesnewskyj has made similar reasonable comments in relation to Wasyl Odynsky, even where other Liberals cannot see the obvious relationship. In the case against 81-year-old Wasyl Odynsky, it was established to the satisfaction of a Canadian court that Mr. Odynsky, a teenager from Ukraine, was forced into service by, and attempted to escape from, an SS Auxiliary during World War II, and furthermore, that Mr. Odynsky did not commit any war crimes. Mr. Odynsky has spent the past eight years and virtually all of his savings trying to defend his name and avoid deportation. He even paid 50 per cent of the costs of more than a dozen Canadian court personnel to travel to Ukraine to collect evidence about his wartime circumstances.

Every Canadian accused of being a war criminal should be brought to trial in a Canadian court of law to receive due process and be given the full benefit of reasonable doubt on all matters. The case against Mr. Odynsky found "on balance," but without any evidence, that he must have lied well over 50 years ago at the time of his immigration application. The finding is based on the judge's view that Mr. Odynsky must have been asked by an immigration officer about his wartime activities; however, no witnesses or records exist to substantiate such an accusation. While citizenship, livelihood and reputation are all at stake, surprisingly little allowance is given for the possibility that Mr. Odynsky is telling the truth. It seems clear that Wasyl Odynsky was placed under a reverse onus of proof of the type normally found objectionable in Canadian law, as Mr. Wrsesnewskyj has clearly identified in his House of Commons remarks. The decision to implement the deportation order now rests with the Liberal Federal Cabinet. Their Christmas present to Mr. Odynsky last December, through then Minister Judy Sgro, was a notice that she would be proceeding with his case. In early 2005, one of her last acts before resigning in disgrace was to recommend to her Cabinet colleagues that Mr. Odynsky be deported. In my opinion, since Mr. Odynsky has been exonerated in Canada of any involvement in war crimes, justice is not served by deporting an 81-year-old, on balance, for an issue of unproven allegations of over 50 years ago.

The current Liberal Immigration Minister, Joseph Volpe, is regrettably adamant that he will do nothing to rectify the injustice in this case.

Does over 50 years of upstanding citizenship account for nothing to Mr. Volpe? Is he an Immigration Minister who views justice selectively, or, for that matter, ethnic communities selectively? Mr. Odynsky deserves protection from the Charter of Rights and Freedoms from this kind of tormenting prosecution. Certainly, over 50 years of hard honourable work deserves equal rights under the Constitution.

Just as Liberal Borys Wrzenewskyj can apply his views on reverse onus as equally to loss of citizenship and deportation as he can to car theft, Liberal Minister Volpe can apply equality before the law equally to all Canadian immigrants. Make no mistake, justice for Wasyl Odynsky is all about applying Canadian law in a fair and unbiased manner.

This Canadian citizen deserves that much.