Canada (Citizenship and Immigration) v. Odynsky

Canada (Citizenship and Immigration) v. Odynsky
Court (s) Database
Federal Court Decisions
Date
2001-03-02
Neutral citation
2001 FCT 138
File numbers
T-2669-97
Decision Content
Date: 20010302
Docket: T-2669-97
Neutral citation: 2001 FCT 138
IN THE MATTER OF revocation of citizenship pursuant to sections 10
and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19
of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER of a request for reference to the Federal Court
pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;
AND IN THE MATTER of a reference to the Court pursuant to Rule 920
of the former Federal Court Rules, continued pursuant to Rule 169(a)
of the Federal Court Rules, 1998, as required pursuant to Rule 501.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
WASYL ODYNSKY
Defendant
REASONS FOR JUDGMENT
MacKAY, J.:
[1] This is a reference by the plaintiff Minister of Citizenship and Immigration, pursuant to s. 18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29 as amended, (the "Act"), of the Minister's case concerning the obtaining of citizenship by the defendant, Wasyl Odynsky. The Minister requests a declaration that the defendant was admitted to Canada for permanent residence and obtained Canadian citizenship by false representation, or fraud or by knowingly concealing material circumstances.
[2] For the reasons that follow, I issue the declaration sought, since I find on a balance of probabilities that Mr. Odynsky was admitted to Canada for permanent residence in 1949, and obtained citizenship under the Canadian Citizenship Act, R.S.C. 1952, c. 33 (the "1952 Act") by false representation or by knowingly concealing material circumstances.
[3] These Reasons are lengthy and for ease of reference they are organized under the following headings, commencing at the paragraph noted below.
[4] Introduction
[13] The Issues Before the Court
[20] The Background
[20] Mr. Odynsky's Odyssey, through World War II to 1955
[49] Canadian Immigration Policy and Practice, 1945-1949
[61] Mr. Odynsky's Evidence of his Admission to Canada
[75] The Circumstances of Mr. Odynsky's Obtaining Citizenship
[91] Significant Legal Issues
[92] The Scope of the Notice of Revocation
[113] The Application of s. 10 of the Act
[125] The Authority to Reject Prospective Immigrants on Security Grounds
[154] The Interpretation of "knowingly concealing material circumstances" in s-ss. 10(1) and 18(1) of the Act
[163 ] Mr. Odynsky's Wartime Activities and the Security Screening of Prospective Immigrants in 1949
[192] Summary of Findings and Conclusions
[225] Conclusion
Introduction
[4] The Minister served notice upon Mr. Odynsky of her intention to report to the Governor in Council, pursuant to s. 10 of the Act, that the defendant had obtained citizenship under the Act by false representation or fraud or by knowingly concealing material circumstances. After receipt of that notice Mr. Odynsky requested that the Minister refer the matter to this Court.
[5] These steps were in accord with ss. 10 and 18 of the Act which provide:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne soit réalisée:
a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour;
b) La Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
[6] The Minister's Notice of Revocation of Citizenship to Mr. Odynsky, dated September 24, 1997, referred to both the Act and its predecessor, the 1952 Act. It advised that the Minister proposed to make a report to the Governor in Council within ss. 10 and 18 of the Act, and s. 19 of the 1952 Act:
. . . on the grounds that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, in that you failed to divulge to Canadian immigration and citizenship officials your collaboration with German authorities and your engagement in activities connected with forced labour and concentration camps during the period 1943-1944, as a guard at the Trawniki Training Camp and later at the Poniatowa Labour Camp, in Poland.
[7] The 1952 Act, by s. 19, referred to in the Notice, in essence combined the substance of ss. 10 and 18 of the Act, which replaced it. The former Act provided that the Governor in Council might order that citizenship cease, on report of the Minister that a citizen, other than one born in Canada, had obtained a certificate of citizenship by false representation or fraud or by concealment of material circumstances, subject to confirmation of such a finding by a Commission of inquiry.
[8] The Notice to Mr. Odynsky also advised that he might request, as he later did, that the Minister refer the case to this Court, which she did by Notice of Reference dated December 11, 1997. It also advised that a report to the Governor in Council would not be
made unless the Court decides that the defendant obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[9] For the record I note that following the reference and filing of a statement of facts by the Minister to the Court, the Federal Court Rules, 1998 came into force on April 25, 1998, by SOR/98-106. In accord with those Rules this matter was heard as an action pursuant to Rule 169, with pleadings, pre-trial preparations, and trial in accord with Part 4 of the Rules, concerning Actions.
[10] For the record also, I note that the Court and counsel heard evidence of witnesses called on behalf of the defendant, and by the Minister, in Beleluja, Ukraine, Mr. Odynsky's home village, for four days in November 1998, with hearings in Toronto following, over 25 days spread from January to August 1999. The Court acknowledges the contributions of witnesses in the Ukraine, in particular, Ivan Andriyovich Timchuk from Beleluja, Ivan Wasylovich Lukaniuk of Khimchin Village, and Mykola Teodorovich Kishkan of Vidiniv Village, all of whom were conscripted in 1943 and trained and served as guards with Mr. Odynsky. I acknowledge also the courtesy and kindness of the principal of the school in Beleluja where hearings were held, and her friends from Beleluja who prepared lunch each day for the group of counsel, reporter and interpreters, and Court staff. To the many people of the village who attended the hearings with considerable interest, and evident concern and respect, I express gratitude.
[11] I acknowledge also the cooperation of Ukraine officials who facilitated arrangements for evidence to be heard there, pursuant to the Memorandum of Understanding between the Office of the Procurator-General of Ukraine and the Department of Justice of Canada, concluded in September 1992.
[12] I acknowledge also the important contribution of other witnesses, heard in Canada, including former public servants, expert witnesses, and many others, including the defendant, Mr. Odynsky, and witnesses called by him.
The Issues Before the Court
[13] It is now well settled that the ultimate issue for the Court in this reference by the Minister under the Act for a declaration is a determination of fact.1 In that determination, the civil standard of proof, i.e., a balance of probabilities, applies,2 but the Court will "scrutinize the evidence with great care because of the serious allegations to be established by the proof that is offered", as Mr. Justice McKeown commented in Bogutin.3 A positive determination, granting the declaration sought, by paragraph 18(1)(b) of the Act is an essential preliminary to the exercise of discretion by the Minister to make a report to the Governor in Council. The Court's determination is not subject to appeal, by reason of s-s. 18(3) of the Act.
[14] While the ultimate issue for determination appears relatively simple, its resolution is complicated by reason of the lack of records maintained by the Minister concerning Mr. Odynsky's admission to Canada and his subsequent obtaining of citizenship. Its resolution is complicated further by the quality of evidence concerning, and the difficulty for witnesses asked to recall, events and processes that occurred or in which they may have been involved more than 50 years ago.
[15] Born in January 1924, in the village of Beleluja, Ukraine, then within Poland, Mr. Odynsky arrived in Canada in 1949, landing at Halifax on July 3. He came to this country from a camp, operated by the International Relief Organization (I.R.O.), for displaced persons located in then West Germany, where he had migrated as World War II was ending. He was granted an immigrant visa and was assisted in coming to Canada as a farm labourer. He is one among many thousands of displaced persons in Europe who came to Canada after 1945. Most of them later became citizens and contributed to the evolution of our modern society. In July 1955, Mr. Odynsky applied for Canadian citizenship, which was granted on December 5, 1955. Since 1950 he and Mrs. Odynsky, who were married in 1948 in a camp for displaced persons, have lived in Toronto. There their three children were born, their family was established and there he worked until retirement.
[16] Before turning to resolution of the issues of fact and law upon which my conclusion is based I review the background, including Mr. Odynsky's experience so far as it is here relevant up to 1955 when he became a Canadian citizen, Canadian immigration policy and practice as it was in the years 1945 to 1949, Mr. Odynsky's evidence of his admission to Canada, and the circumstances of his obtaining citizenship.
[17] The principal issues of law important for my determination are then dealt with in turn, including the scope of the Notice of Revocation, the application of s-s. 10(2) of the Act, the authority to exclude immigrants on security grounds in 1949, and the interpretation of "knowingly concealing material circumstances" within s-ss. 10(1) and 18(1) of the Act.
[18] I then turn to more difficult issues of fact in assessing whether, in connection with his admission to Canada in 1949, Mr. Odynsky made false representation or knowingly concealed material circumstances, that is, his service with German forces during World War II.
[19] Finally, I set out a summary of the findings of fact and legal conclusions upon which my ultimate determination rests, and I conclude by stating that determination and granting the declaratory relief sought by the Minister.
The Background
Mr. Odynsky's Odyssey through World War II to 1955
[20] Beleluja, where Mr. Odynsky was born in 1924, is in the Western Ukraine, in Snyatyn Rajon of the Oblast then known as Stanislav, now known as Ivano-Frankivs'k. That area was then within Poland as a result of the settlement of boundaries after the First World War. In 1939, after the German attack on Poland, in accord with the pact between Germany and the Soviet Union, the area came under Russian occupation. With the German attack on the Soviet Union in June 1941, it came under German domination, within an area of occupied countries administered by the German conquerors under the General Gouvernment, controlled by German police and army authorities. It so continued until 1944 when the advancing Soviet Army drove the retreating Germans from Ukraine. Thereafter, until independence of the Ukraine in August 1991, the area was within the Soviet Republic of Ukraine, within the U.S.S.R.
[21] Mr. Odynsky's family lived in Beleluja where his father was a farmer with somewhat more extensive farm operations than many others in the village. He lived with his father and mother, two brothers, one older and one younger, and a younger sister. Mr. Odynsky completed five years of school in the village, before leaving at age 11 to work on the family farm. He was 15 years old when the Second World War began on September 1, 1939, and he remained in the village, working on the family farm, first under Soviet control for nearly two years, and then from June 1941 under German control. In 1943 he was taken by the Germans to serve with their military and police services.
[22] His father had opposed the collective consolidation of farms under the Russians in the period 1939-41, and again after 1944 when the Russians returned after driving the Germans out of Ukraine. When the Russians returned, Mr. Odynsky's older brother was killed by Russian troops when he was seeking to hide arms for the Ukrainian national movement. His father was arrested and imprisoned for more than a year, then was permitted to return to Beleluja to find his two younger children and was forced to move with them to Kazakhstan after the war was over. Mr. Odynsky's mother was taken by the Russians to forced labour in the Soviet Union, and only after 10 years was she able to join her husband in Kazakhstan. Ultimately his mother died there, his brother and sister remained there, while his father returned to Beleluja after an absence of some 20 years.
[23] The hopes of some Ukrainian people in 1941, that the German attack on the Soviet Union would ultimately lead to independence for Ukraine, were soon dashed. German forces quickly eliminated any movement for independence, and German control and policies for the occupied eastern territories were soon resented by the Ukrainian people. They endured much hardship and suffering in the course of the war and in the postwar years.
[24] Mr. Odynsky testified that following the German occupation his older brother discovered hidden village records, from the days of Soviet occupation, which listed his family as one of ten designated to be transported to the east by the Russians, presumably for opposition to collective farms. That proposed removal was frustrated by the German occupation.
[25] In the village of Beleluja under German occupation, a few Jewish families, who had lived among the Ukrainian population of the village for many years and were accepted by them as equals, were taken away by the Germans and were not seen again.
[26] In late 1942 or early 1943, younger Ukrainians, including many from the Ivano-Frankivs'k area, were taken by the Germans for forced labour within Germany. Mrs. Maria Odynsky, the defendant's wife, who is also a native of Ukraine, born in the village of Rothovytsia, was so taken to Germany in 1943 when she was only a teenager. Two of her brothers were also taken to Germany for forced labour. Many others were taken to serve with auxiliary military and police forces in support of the German forces, to provide police and security in the occupied eastern territories. Initially that support was provided by Volksdeutsches, ethnic Germans living in occupied countries, and by selected men drawn from the ranks of prisoners of war ("POWs") captured from Russian forces. By early 1943 young men from occupied countries, particularly Ukraine, were drawn into the auxiliary services by the German occupier.
[27] Mr. Odynsky was caught up in the German sweep for younger people to assist their forces. In early February 1943, the mayor of his village was directed to provide a list of young men born in the years 1920 to 1924 and to send those individuals to Snyatyn, which he did. Among those sent to Snyatyn was Mr. Odynsky. There he and four others from Beleluja were selected among many others, and they were told that they were required to serve with the German army forces. They were permitted to return home but were ordered to report a few days later, on February 10, at Kolomyja. If they did not return as directed they would be subject to arrest.
[28] The five young men selected from Beleluja returned home. They did not show up on February 10, as they had been directed to do. Rather, they hid in the fields nearby and in the village. In April the Gestapo, with local police, came to the village looking for those who had failed to report in February as ordered. They directed that if those missing young men did not show up in the village within a limited time their families would be taken away.
[29] Mr. Odynsky and the others surrendered. They were all taken by horse and wagon to Snyatyn, and threatened with death if they tried to escape again. After two weeks in the local jail they were taken to Kolomyja where they were imprisoned for two more weeks. While there, they were threatened with death for deserting by not reporting as directed, but a local lawyer, interceding on their behalf, succeeded in having this threat lifted. They were spared, but were warned that any escape would be punished by death when they were caught, or if they were not caught, their families would be sent to concentration camps.
[30] They were transported by rail to Trawniki, in eastern Poland, in the Lublin district then under administration of the General Gouvernment. At Trawniki, the German Schutz-staffel, (the "SS"), supervised the training of auxiliaries. The SS was the organization originally formed within the German National Socialist, or Nazi, Party to promote its political, ethnic and social goals. Under Himmler the SS was ultimately responsible for police operations in German occupied eastern territories, including the forcing of Jews into ghettos and their murder by killing squads and at death camps. Death camps and forced labour camps were operated by the SS in the General Gouvernment area, and those operations relied in part on auxiliary police. Trainees at Trawniki were first recruited from captured Russian soldiers in POW camps, and later, by 1943, those drawn from young men born in occupied territories. In addition to the training camp, at Trawniki the SS operated a forced labour camp where Jews were detained and forced to labour to produce clothing and other goods for German forces.4
[31] Mr. Odynsky and his fellow trainees were issued uniforms, given medical examinations and basic training in marching, guarding and the use and care of weapons. Except for limited training purposes they were not issued weapons. A personnel form was completed for signature by each man with his photograph and thumbprint. Copies of a form issued for one Wasyl Odynskj, of Ukrainian nationality, born in 1924 in Beleluja, was among documents adduced at trial.5 It is identified as "Personalbogen Nr. 3337", dated 7.4.43 at Trawniki. It bears a picture and a thumbprint, but the signature is not legible. So far as it is legible Mr. Odynsky denied at trial that the signature is his and he was not convinced the picture was of him. He testified he had not seen the document before it was produced for this proceeding. The document had been retrieved from Russian archives. It does record a transfer to Poniatowa on "25.v.43". There was some evidence that another Wasyl Odynsky or Odynski, from Beleluja, was also taken by the Germans to Trawniki among the five young men taken in April 1943.
[32] After some weeks of basic training at Trawniki, Mr. Odynsky, with others from the group of trainees, was included in a company sent to serve as guards for another SS forced labour camp, at Poniatowa. This camp, like Trawniki, was in the Lublin district, which by 1943 included a number of death camps and labour camps operated by the SS.
[33] At both Trawniki and Poniatowa the factories within each camp were operated by German business firms which had been moved from ghettos in Warsaw and elsewhere. Many former employees moved with the factories, taking their families with them, and with other workers they were forcibly confined, and required to work on production for the German forces. The operation of these camps was but one phase in "Operation Reinhardt", the Germans' "final solution" for Jews in eastern occupied territories.
[34] At Poniatowa, most of the labourer-prisoners were housed within the main campsite, where the German headquarters and housing for the German force were also located. About a kilometer away Poniatowa also included a housing facility, known as the "Seidlung" or Settlement, consisting of apartment buildings for labourer-prisoners who had been comparatively well-to-do, and for German civilian factory supervisors. There was also a building for the "Trawniki" men, as the Ukrainian auxiliaries, including Mr. Odynsky, were called. His evidence at trial was consistent with that of his compatriots who were heard as witnesses at Beleluja in 1998, more than 50 years after their experience at Poniatowa. Their task was to patrol and guard the perimeter of the Seidlung, ostensibly for protection against attack by partisans, and to check the labourer-prisoners leaving each morning and returning at night. It appears that the Ukrainian Trawniki men, at least those at the Seidlung, were not directly responsible for guarding the labourer-prisoners. The prisoners were under direct supervision of Jewish "capos", who were responsible for maintaining order and discipline among them, and within the factories German civilian staff directed their work. Other Trawniki men were used as guards at the main camp and they and the German SS officers lived at the main camp.
[35] During five or six months of this service at Poniatowa, Mr. Odynsky's evidence is that he had little personal contact with the prisoners, except those who provided medical and dental services for the guards as well as the prisoners.
[36] In the fall of 1943, the operation of the forced labour camp at Poniatowa was suddenly terminated. On November 3 or 4, 1943, the Trawniki men were confined to their barracks at night and were not permitted to leave until late the next day. In less than a full day German police and SS forces, apparently including some of the Einsatzgruppen or killing squads commanded by the SS, marched the prisoners, men, women and children, to large trenches outside the main camp. These trenches the prisoners had been forced to dig earlier, on the pretence these were to be defence works for the camp. When the prisoners reached the trenches they were ordered to undress and enter the trenches naked, where they were then executed by shooting.
[37] The shooting at Poniatowa was carried out at the same time as similar killing operations at Trawniki and at another camp, at Majdanek. Operation "Erntefest" or "Harvest Festival" as it was known to the Germans, was a day of infamy. It is estimated that at Poniatowa alone 15,000 people were killed that day. Mr. Odynsky's evidence is that he had seen prisoners assembled and marched from the Seidlung, that gunfire was heard all day, and that a Ukrainian officer had told him the Germans were killing the Jews. When he and his fellows were permitted to leave their barracks there were no Jewish labourers to be seen at Poniatowa, either at the Seidlung or at the main camp. There was evidence given at the hearing of this reference by Dr. Yitshak Arad, who lived throughout the war in Poland, now an Israeli historian, an expert in regard to the Holocaust, particularly in Eastern Europe and at Trawniki. He estimated that more than 25,000 others were also massacred in Operation Erntefest at the other forced labour and death camps in the Lublin district. From his extensive studies he testified that some Jewish prisoners, excluded from the first day's massacre so that they might be forced to burn the bodies of those killed, refused to perform that task and that they in turn had been shot by Germans and Ukrainian "Trawniki men", though he admitted in cross-examination there was no evidence to support his conclusion about this involvement of Trawniki auxiliaries.
[38] There is no evidence that Mr. Odynsky had any extended contact with Jewish labourer-prisoners at Poniatowa, or with guarding them except in guarding the perimeter of the Seidlung. There is no evidence that he or any of his Ukrainian colleagues at the Seidlung had any part in Operation Erntefest, or in the subsequent massacre of those left to burn the corpses. After that dreadful November day the Trawniki men at Poniatowa continued to guard the Seidlung, the main camp, and their facilities, primarily against any possible partisan attack, even though the camps were no longer in operation with forced labourers or any other prisoners.
[39] Later in November 1943, Mr. Odynsky was granted leave and permitted to return to Beleluja where his mother had become very ill. While there, he too became ill and he remained longer than his original leave, but after two weeks of extended leave time he was ordered to return to Poniatowa, which he did. On his return, there were no prisoners held at the camp, then or thereafter.
[40] From January 1944, through spring until June or July, Mr. Odynsky and his colleagues continued to guard the facilities at Poniatowa and at Trawniki. Some of the men were sent off to other duties. Then, with the Russian army advancing ever closer, Mr. Odynsky and others were moved to Trawniki and formed into a company in an SS battalion, called Battalion Striebel, named after the SS leader who had commanded the camp at Poniatowa, and now commanded the battalion of Trawniki auxiliary troops. In the summer of 1944, the battalion, including Mr. Odynsky, moved west, ahead of advancing Russian forces, serving primarily as a labour battalion. In February 1945, they were in the area of Dresden, in Germany, when allied bombers wreaked havoc on the city. They spent some six weeks locating and burying or burning the dead, helping to clean up the city and to restore its basic services.
[41] Battalion Striebel, moved on from Dresden to an area west of Prague, Czechoslovakia in the spring of 1945. It was there that it disbanded when Germany surrendered in May. Some of its members remained there, within the later Soviet area of occupation, and a number of them were conscripted into the Soviet army. Others, including Mr. Odynsky, made their way westward, to Eger, in a portion of Germany occupied by American forces. There they surrendered, wearing German army uniforms, and they were billeted in tents in an American army camp for POWs.
[42] Those in the camp were registered by American authorities, and were issued an identification document in exchange for their German military documents. Mr. Odynsky did not then speak English and his evidence is that he was not asked for and did not give any information about his war service. After about 6 weeks in the camp, many were released, including Mr. Odynsky and five others from his company. They were issued release papers, allowed to leave the POW camp, and they were permitted to go to and remain at Augsburg.
[43] There they found a Ukrainian committee promoting the establishment of a camp for Ukrainians. There are estimates that more than 7 million displaced persons were in western Europe at the end of the war and that more than a third of them were from Ukraine, persons who had come as forced labourers brought to Germany during the war, or those who arrived with retreating German forces at the end of the war6. A camp for those who did not wish to return to Ukraine, by that time under Soviet occupation, was established at Gegengen. There Mr. Odynsky registered, using his birth certificate, the release paper from the POW camp and a document from the Ukrainian committee in Augsburg certifying his status as a Ukrainian.
[44] In late fall of 1945, the rapidly growing population at Gegengen was moved to another camp known as Somme Kaserne. That camp was initially operated by the United Nations Relief and Rehabilitation Administration which sought to support the return of displaced person to their home countries. By 1947 a new agency, the International Relief Organization, had assumed responsibility for the operation of Somme Kaserne, and it pursued the goal of assisting displaced persons to resettle in countries other than their homelands.
[45] In Somme Kaserne, Mr. Odynsky met and married his wife Maria. She too was a displaced person in Germany at war's end after release from forced farm labour in which she had been engaged for more than two years. While they were living at Somme Kaserne, in 1948 the Odynskys learned that the IRO was seeking to settle displaced Ukrainians in various countries abroad, including Canada, which was reportedly seeking workers for mining and farm work. Mr. and Mrs. Odynsky discussed the possibilities and decided to try to go to Canada where Mr. Odynsky's maternal grandparents and some others of his family lived in British Columbia.
[46] I deal with Mr. Odynsky's evidence of his admission to Canada as a landed immigrant in 1949, and of his obtaining Canadian citizenship in 1955, in later portions of these reasons. At this point it is sufficient to note that they applied and were accepted for immigration to Canada. Mr. Odynsky was landed at Halifax in July 1949, and he travelled to Toronto.
[47] At Toronto, he was assigned to work on a farm in the area of Listowel, Ontario, where he remained for six months. He moved then to another farm, near Stouffville, Ontario, where accommodation was provided not only for him but also for Mrs. Odynsky who joined him in Canada in January 1950.
[48] When his contracted year of farm labour service was complete, Mr. Odynsky and his wife moved to Toronto. There their three children were born, they established their home and their family life within Toronto, and within the Ukrainian community. There they have remained and, as we have seen, they became Canadian citizens in 1955.
Canadian Immigration Policy and Practice, 1945 - 1949
[49] Mr. Nicholas D'Ombrain, a former senior public servant, provided an affidavit and testified as an expert witness on the workings of federal cabinet government and policy, with particular reference to immigration policy and security screening in the years after World War II.7
[50] As the war ended, immigration to Canada was restricted under regulations enacted in 1931,8 pursuant to the Immigration Act of 1927.9 Through the 1930's an annual average of only 7,000 immigrants were admitted to Canada, and those were all primarily from the United Kingdom, Ireland, Dominions of the then British Empire, and the United States, the only nationals regularly considered admissible under the regulations then in force.
[51] With the end of the war in 1945, interest in expanding immigration to Canada was revived, and supported by public policy, in part to meet manpower requirements, particularly in agriculture and resource industries. Following an outline of government policy to the House of Commons by Prime Minister MacKenzie King in May 1947, immigration restrictions were also relaxed to assist in resolving the substantial international problem of resettling hundreds of thousands of people displaced from their homelands and then located in camps in western Europe. The first provision for admission of displaced persons, by P.C. 2180 in June 1947, was for 5,000 to be admitted. By the fall of 1948 that number had increased to 40,000 by successive orders-in-council. Thereafter the numbers continued to grow and restrictions against entry by others were relaxed through the late 1940's and 1950's. It is immigration policy and practice in the years up to 1949 that is here relevant since Mr. Odynsky came to Canada in 1949.
[52] As interest renewed in facilitating immigration to Canada in the immediate post-war years, there was concern that this be done without compromising internal or international security interests of the country, a concern heightened by cold war circumstances and by experience from the "Gouzento affair" in 1946. From 1946 the R.C.M.P. continued its general responsibilities for assessing security interests, including the security risk presented by prospective immigrants. Recommendations of a Security Panel, comprised of senior public servants concerned with security interests, were approved by the Ministers concerned. These recommendations led to the deployment of R.C.M.P. officers to various posts throughout western Europe to work with immigration and medical officers in screening applicants for immigration to Canada.
[53] Initially, the R.C.M.P. security officers in Europe operated on oral instructions of their superiors. The earliest document formally adopted setting out security screening criteria for potential immigrants is a memorandum from R.C.M.P. records, dated at Ottawa, November 20, 1948 entitled "Screening of Applicants for Admission to Canada".10 It provided:
Screening of Applicants for Admission to Canada
Any one or more of the following factors, if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission:
(a) Communist,
(b) Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (NON-Germans)
(c) Member of Nazi Party.
(d) Criminal (known or suspected).
(e) Professional gambler.
(f) Prostitute.
(g) Black Market Racketeer.
(h) Evasive and untruthful under interrogation.
(i) Failure to produce recognisable and acceptable documents as to time of entry and residence in Germany.
(j) False presentation; use of false or fictitious name.
(k) Collaborators presently residing in previously occupied territory.
(l) Member of the Italian Fascist Party or of the Mafia.
(m) Trotskyito or member of other revolutionary.
[54] In 1947 Cabinet had determined that security screening in Europe should be left to the R.C.M.P. and the latter determined that screening would be required of all displaced persons and all immigrants from certain designated countries, including Germany which was then still an enemy country. A later report11 to the Security Panel reported that the R.C.M.P. had implemented a policy for interviewing displaced persons in their camps, for examination of their papers, and for a search for any relevant records available to the R.C.M.P. from security sources. That report also noted that:
D.P.'s bearing the blood grouping tattoo of a Mazi (sic) Storm Trooper are rejected on security grounds. Likewise persons from German occupied countries known to have collaborated with the Nazi machine or served voluntarily with the German Forces are rejected.12
[55] A later report to Cabinet, dated August 22, 1949, reported that displaced persons were screened by personal interviews, and were not given permission to enter Canada until they had been cleared for security.13
[56] The process of screening conducted in the field was described to the Court by former Immigration Officers and a former R.C.M.P. officer who testified. They included Roger Martineau, Roger St.Vincent, Andrew Kaarsberg, all formerly of the immigration service, and Donald Cliffe, formerly of the R.C.M.P. Mr. Martineau was introduced to the process upon arrival in Germany in May 1948, and he served at Munich, working for five weeks at three camps for displaced persons in that area, including Funk Kaserne . He then served in Austria from June 1948 to August 1949 when he was transferred to Stockholm. Mr. St.Vincent served as an immigration officer, a team leader, at Karlsruhe, the Canadian immigration headquarters in the U.S. Zone of occupied Germany, and later in Austria. Mr. Kaarsberg went to Germany in December 1948, to Karlsruhe, and he went on to Munich in January 1949, where he was serving when Mr. Odynsky applied to and came to Canada. His signature appears on Mr. Odynsky's IRO identification and travel document, authorizing the Immigrant Visa Stamp, dated May 13, 1947, stamped on that document.
[57] Their evidence described the process each had followed, which, so far as they knew, was standard for processing applicants in western Europe for immigration to Canada. An applicant for immigration, having completed application forms, was invited for interview and examination. In the case of DP's living in camps, the immigration team, consisting of the immigration officer as head, an R.C.M.P. security screening officer, and a medical officer from National Health and Welfare Canada, made arrangements with the I.R.O., operator of the camps, to visit and examine applicants in the camps. Upon arrival for interview, an applicant would be interviewed by the R.C.M.P. officer and either "passed" or "not passed" security screening, sometime later referred to as "stage B". The applicant was then examined by the medical doctor and x-rays, provided by the applicant or arranged by the doctor, were examined before the applicant met with and was interviewed by the immigration officer. Only the immigration officer could approve the applicant for immigration to Canada, by affixing and signing the visa stamp to the applicant's passport or document for travel.
[58] All three immigration officers testifying before this Court professed no direct knowledge of the security screening officer's work, his concerns or his processes, but they all understood that his general role was to ensure there was no basis for concern about an applicant's past in relation to involvement with German forces, in major criminal offences, or in suspect political activities. Each of Messrs. Martineau, St. Vincent and Kaarsberg indicated they would not issue a visa if an applicant had not passed the prior security screening or medical assessment stages in the process.
[59] The work of the R.C.M.P. security screening officer was described by Mr. Cliffe, a security screening officer assigned to work in Italy in 1951 and later working in Germany and Sweden. He had started on the basis of oral directions and the 1948 statement of criteria. He had been introduced to the work by an experienced officer who had started screening prospective immigrants in 1948. Before an applicant for immigration was interviewed, the RCMP officer, known as a visa control officer, would have sought information about the applicant from police and security services. When interviewed, the applicant would first be seen by the R.C.M.P. visa control officer, then by others. Mr. Cliffe's evidence is that he always considered as most relevant for his purposes, information about what the applicant had done and where he had been for the past ten years, particularly during the war years. He sought information from intelligence and security agencies, and he questioned applicants on matters brought to his attention or that raised questions in his mind. If the security officer was not satisfied that an applicant presented no security risk the applicant would not pass the security screening stage. He confirmed his understanding that an applicant who did not pass "stage B", or security clearance, would not be granted a visa to come to Canada by an immigration officer.
[60] I return, briefly at this stage, to the evidence of Mr. Kaarsberg. He identified his signature authorizing the visa stamp, dated May 13, 1949, on the lower right corner of Mr. Odynsky's IRO Identification and Travel document. When asked whether this would mean that he saw Mr. Odynsky on that date, Mr. Kaarsberg said he could not be sure of that, but he was certain that either he saw him and passed his application or that another immigration officer had seen him and had approved the grant of a visa to him. Further, Mr. Kaarsberg testified that in either case he would have ensured that Mr. Odynsky had been cleared for security. If he had not been cleared, the visa stamp would not have been affixed and signed by Mr. Kaarsberg as the responsible immigration officer.
Mr. Odynsky's Evidence of his Admission to Canada
[61] Mr. Odynsky's evidence concerning his recollection of the processing of his application to come to Canada does not include or reflect the security screening process described by the plaintiff's witnesses. He testified at trial that before he applied to come to Canada he had completed no forms concerning, and he had not been asked any questions about, his experience during the war, when he surrendered at the American army camp for POWs at Eger in May 1945. Similarly, he had not been asked questions about his wartime activities when he was admitted to the displaced persons camps, at Gegengen, or at Somme Kaserne. At Eger he did turn in his German service book, and when admitted to the camp of Gegengen he did produce his discharge paper from the POW camp, his certificate from the Ukrainian committee in Augsburg, and his birth certificate. At Gegengen he was issued a DP card, essentially a card identifying him as a displaced person. He testified that he was not asked any question there except whether he was Ukrainian which he was able to establish with his birth certificate from his church at Beleluja, and the certificate from the Ukrainian committee at Augsburg. There was no formal admitting process at Somme Kaserne when he was relocated there from Gegengen.
[62] On one occasion in late 1946 or early 1947, a screening process was set up by the operating agency at Somme Kaserne, either UNRRA or the IRO, to assess why some of the residents did not want to return to their homelands. Mr. Odynsky was interviewed on that occasion by a team of an American officer, a civilian woman and an interpreter. He then produced his birth certificate and his DP Card and indicated he did not wish to return to Beleluja, Ukraine, because the area was under Soviet domination. He testified that he was not then asked questions other than what he intended to do if he did not return to his home.
[63] It was while he was at Somme Kaserne, in 1947, that he learned his family had been taken by the Soviets from Beleluja to the east. In 1948, at Somme Kaserne, Mr. Odynsky was arrested and thereafter detained for two or three months, as a result of his purchase of food for others, perceived by the authorities perhaps as black marketing activity. His detention in 1948 was served at a labour camp where he was visited from time to time by his prospective wife, now Mrs. Odynsky. After his release and return to Somme Kaserne they were married. Later in 1948, while they were still living at Somme Kaserne, it was announced that Canada, Australia, and Britain would be accepting displaced persons for resettlement. After discussing the matter they went to the camp office and asked to be registered to go to Canada.
[64] The office was staffed by Ukrainians, and one of the staff completed the form for application or registration which they believe was printed in English, a language which the Odynskys did not then speak or read. At trial Mr. Odynsky recalled showing their DP cards, but he does not remember producing other documents and he does not recall whether or not he signed any form. When asked what work he would seek in Canada he indicated farm work, and he explained his facility with that work from his home farm. He testified that he was not then asked what he had done or where he had been during the war years. He volunteered that he had relatives in Canada. The clerk who completed the forms did not review the completed forms with Mr. Odynsky. The Odynskys were advised that the forms would be sent to Munich, and they would be advised when a reply was received.
[65] Mr. Odynsky further testified that they waited about a month during which time they were moved with others to a camp at Leipheim. They were there when a reply to their application came. This instructed them to report early in May to Munich. He and Mrs. Odynsky travelled to Munich. The only documents he took with him were his birth certificate and his DP card. They reported to the office at another camp, Funk Kaserne, a camp designated for processing applicants seeking to be settled abroad. They were billeted at Funk Kaserne while their medical examinations were undertaken. They reported back to the office, as directed, where a staff member, who spoke Ukrainian, whom they had met on arrival, informed them of appointments for medical examinations. After separate medical examinations by an English-speaking doctor who worked with an interpreter fluent in Ukrainian, they were given appointments for x-rays, which were repeated for Mr. Odynsky, and the reports of those they returned to the camp office. They were told to remain at Funk Kaserne pending advice whether they would be accepted to come to Canada. Any forms completed at Funk Kaserne were filled out for them by office staff fluent in Ukrainian and English. In the latter language the Odynskys were not then literate.
[66] Mr. Odynsky testified that in the process of interview and examination at Funk Kaserne he was not, at any time, asked questions about his wartime service. Moreover, he testified that he was not interviewed by any Canadian officials, with the exception of the doctor whom he believes was Canadian.
[67] After a few days they received word that they were accepted and they were told to return to Leipheim pending further instructions about arrangements for travel to Canada. Not long after, word came for Mr. Odynsky to report again to Munich, ready to go to Canada, while Mrs. Odynsky was to remain at Leipheim until after her husband had completed half of a year's contract to serve as a farm worker in Canada.
[68] When he reported to Funk Kaserne at Munich, as directed, Mr. Odynsky says that he reported at the office which was crowded. He surrendered his DP card, and he was issued an IRO Identification and Travel document. When issued to him that document was stamped and dated with a visa stamp, and signed by an immigration officer, permitting him to enter Canada. His testimony is that he did not then complete any forms and he was not then asked any questions about his wartime activities or where he had lived during the war.
[69] After a few days at Munich, Mr. Odynsky travelled by train to Wildflecken, en route to Bremerhaven. There the group he was with waited for a few weeks, before moving on to Bremerhaven. There he boarded a ship, the S.S. General G.H. McRae, bound for Halifax. His testimony at trial is that at no time at Funk Kaserne on his second visit there, or before boarding the ship, or on his way to Canada, did he have any contact with Canadian officials. Upon the ship's arrival at Halifax, passengers remained on board for two days during which a person in civilian clothes processed the papers of the passengers. Mr. Odynsky's testimony is that he handed his papers to the official who stamped them and asked where he wished to go. He says he was not asked any question about his wartime experience. He indicated his preference to go to the Toronto area, and after he was landed at Halifax on July 3, 1949, he boarded a train for Toronto.
[70] Another version of Mr. Odynsky's story was tol