[... material deleted ...]

[57]    The picture painted by Dr. Messerschmidt is quite different from the story related by Mr. Katriuk. It will be recalled that Mr. Katriuk testified that his company had never participated in any major military operation. Mr. Katriuk also testified that, in Pleshchenitsi and Evye, he had not fired his gun. Further, Mr. Katriuk reiterated in his testimony what he stated in paragraphs 13, 17 and 18 of his statement in response to the Minister"s summary of facts and evidence. He added that, while in Minsk for three to four weeks, Battalion 118 underwent training exercises every day. Mr. Katriuk related the same story in regard to Battalion 118"s presence in Pleshchenitsi, that the battalion underwent training exercises every day and that it guarded its barracks and a bridge on the main road. The battalion would have remained in Pleshchenitsi for two to three months and would never have left town.

[58]    In Evye, Battalion 118, according to Mr. Katriuk, was housed in a school where the men were packed as "herrings in bunk-beds". Battalion 118 patrolled the town to show the population that it was there to protect them from the enemy.

[59]    I will now contrast Mr. Katriuk's testimony with that of Mr. Khrenov. Mr. Khrenov joined Battalion 118 in 1942. He was in the third platoon of the first company of Battalion 118. He remembers Mr. Katriuk was a member of the first company. He also remembers that Mr. Katriuk was from Western Ukraine. Mr. Khrenov confirmed Mr. Katriuk's testimony that, while in Kyiv, Battalion 118 underwent training. He also remembered that the battalion had participated in an operation against partisans outside Chernigov. He added, however, that as things turned out, the first company had not been involved in the fighting.

[60]    Mr. Khrenov then testified that the battalion had been transferred to Minsk, either at the end of 1942 or the beginning of 1943. He testified that in Minsk, the battalion underwent training. He could not remember how long the battalion had remained in Minsk. He remembered that the battalion was transferred from Minsk to Pleshchenitsi some time in 1943. He remembered celebrating Christmas of 1942 in Pleshchenitsi. When asked in cross-examination whether his company had been involved in military action while in Pleshchenitsi, Mr. Khrenov answered "of course".

[61]    Mr. Khrenov explained that the first company "wasn"t always involved in things in its entirety. Sometimes, it would be involved as a platoon or as a unit". He then added that it was difficult to remember "all these things".

[62]    He testified that he had participated in the burning of the village of Chmelevisci. When asked whether Mr. Katriuk had participated in this operation, he answered that he could not say but that he could say that the company "was there".

[63]    Mr. Khrenov also testified with respect to an incident which occurred on the road between Pleshchenitsi and Logoisk. A member of the battalion had been killed while repairing telephone lines. The first company was sent to the site of the incident. Mr. Khrenov stated that he saw dead bodies lying on the ground. Mr. Khrenov also saw woodcutters being escorted by the third platoon.

[64]    Mr. Khrenov remembers leaving the Pleshchenitsi region in the summer of 1943 "for some big operation". The battalion then went to Novogrudok. In the fall of 1943, the company went to Evye, where a number of operations were carried out. He remembers fighting partisans near the village of Morino. Mr. Khrenov remembers Mr. Katriuk as being the Commander of the first unit of the first platoon of the first company. When asked how he would describe the way Mr. Katriuk behaved during operations, Mr. Khrenov answered the following⁷:

A.     He was also given an award.

[65]    To complete Mr. Khrenov"s testimony, I should state that he was also part of the battalion created from the remains of Battalions 115 and 118 which was sent to France and from which a number of men defected to the FFL in 1944. In contrast to Mr. Katriuk, Mr. Khrenov did not join the FFL and, as a result, returned to Russia. After being tried, he was found guilty of being a traitor to his country and was sentenced to be executed. After two months on "death row", Mr. Khrenov"s sentence was converted to twenty years of forced labour. After having served thirteen years in prison, Mr. Khrenov was released. He explained that Ukrainians from Eastern Ukraine were the ones that returned to Russia. The Western Ukrainians did not return. They remained in France.

[66]    In view of the evidence of Dr. Messerschmidt and Mr. Khrenov, I find it difficult, if not impossible, to accept Mr. Katriuk's evidence that he did not participate in any important military operation while his battalion was in Belarus. That is simply not plausible. I find that Mr. Katriuk must have participated in at least some of the operations in which his battalion was involved between 1942 and 1944. Mr. Katriuk was an active member of the battalion and was in charge of one unit of platoon number 1 of company 1. Mr. Khrenov remembers him as an "active participant". I can only conclude that Mr. Katriuk, as a member of Battalion 118, took part in the operations in which his company was involved and, as a result, was certainly engaged in fighting enemy partisans.

[67]    Although I have no difficulty concluding that Mr. Katriuk participated in the operations in which his company was involved, I am not prepared, on the evidence before me, to conclude that he participated in the commission of atrocities against the civilian population of Belarus. Not enough is known to reach any conclusion. The Minister did not call any witnesses, save Mr. Khrenov, with respect to the events on which Dr. Messerschmidt relies in coming to his conclusions. The Minister called Mr. Khrenov but his evidence does not support the Minister"s contention that Mr. Katriuk committed atrocities or participated in the commission of atrocities against the civilian population of Belarus. Consequently, I am of the view that Dr. Messerschmidt"s expert evidence is not sufficient to support the conclusion which the Minister seeks. Dr. Messerschmidt is an expert historian. He relies, like Dr. Golczewski, on a number of documents in order to reach his conclusions. However, Dr. Messerschmidt, it goes without saying, has no personal knowledge of the events which he relates in his report. It would be unthinkable, in my view, to conclude, on the basis of Dr. Messerschmidt"s evidence only, that Mr. Katriuk committed war crimes. I therefore find that the Minister has not proved, on a balance of probabilities, that Mr. Katriuk participated in the commission of war crimes or that he committed such crimes. The Minister did not call any witnesses who could link Mr. Katriuk to the atrocities committed against the civilian population.

[68]    I now turn to the issue of whether Mr. Katriuk "voluntarily" joined Battalion 118. Both Drs. Golczewski and Messerschmidt are of the view that Mr. Katriuk must have voluntarily joined Battalion 118. At page 31 of his report, Dr. Golczewski recognizes that refusal to join the Militia could lead to "hunger and material dearth". He dismisses Mr. Katriuk's evidence that the only alternative to joining a battalion was deportation to Germany because "deportation or forced labour on a non-voluntary basis started only later in 1942". According to Dr. Golczewski, joining a battalion "was not the only solution. It was a more expedient one". Dr. Messerschmidt is, for slightly different reasons, also of the view that Mr. Katriuk voluntarily joined Battalion 118.

[69]    As I indicated earlier, Mr. Katriuk testified that joining a battalion was the only alternative to being deported to Germany. In that respect, I have already referred to the evidence of Messrs. Serbyn, Hiltschuk and Khrenov.

[70]    This issue is not easy to decide. For those of us who did not participate in the Second World War, or for that matter in any war, it is almost impossible to imagine the difficult choices men and women had to make during the course of that war. In the circumstances which prevailed at that time, "voluntary service" may well have been a relative term. As Professor Golczewski himself recognizes, there were many reasons why a man could have decided to join a battalion. To name a few, deportation, hunger, possible death, etc.. It must be remembered that Professor Golczewski"s opinion is all encompassing. All those who joined the battalions, save for prisoners of war like Mr. Khrenov, did so voluntarily. That cannot, in my view, possibly be true. No doubt many men did join the battalions of their own free will. It cannot also be doubted that many did not join of their own free will but did so either to avoid deportation, hunger or perhaps death. When asked by counsel for Anne McLellan why he did not leave Battalion 118, Mr. Katriuk answered by saying "where could we go? To the Red Partisans, or maybe to the Polish Partisans?".

[71]    It is interesting to compare the statements made by Drs. Golczewski and Messerschmidt with those that are made by Professor Subtelny in his book Ukraine A History. At pages 471 to 473, under the heading Collaboration, Professor Subtelny writes:

Collaboration     In dealing with the Nazis, the Ukrainians had two alternatives: to obey or to resist. As throughout all of German-occupied Europe, the vast majority chose obedience. And when obedience went beyond the limits of the passive fulfillment of German commands, it usually became collaboration. In Western Europe, where loyalty to one"s state was taken for granted and the Nazis were the one and only enemy, collaboration with the Germans was generally viewed as a form of treason. But in Ukraine, collaboration was a much more complicated issue. It was, first of all, unclear as to how much loyalty Ukrainians owed to Stalin"s regime or to the Polish state that had mistreated them. Who was the primary enemy? Was it the Stalinist system, which inflicted such great suffering in the 1930s, or the Nazi regime, which was currently (but perhaps only temporarily) in power? Finally, given the extreme ruthlessness of both regimes in Ukraine, collaboration was often the price of survival for many Ukrainians.

    For Ukrainians the war posed the problem of how to make the best of what was essentially a no-win situation. From an average individual"s point of view, success generally meant the preservation of one"s life. For Ukrainian leaders and their organizations in German-occupied territories the goal - or rather, the puzzle - was how to preserve Ukrainian interests from both the Nazis and the increasingly stronger Soviets. Distasteful as it was, some Ukrainian leaders decided to side with one totalitarian system in order to withstand the other. Because the Soviets appeared to be the greater long-term threat, almost all Ukrainian organizations in the Third Reich collaborated with the Germans at one time or another, but always to a limited degree and for strictly tactical reasons. As a people without a state of their own, Ukrainians operated from a position of weakness. They were unable to formulate policy or influence events. Consequently, Ukrainian collaboration with the Nazis was insignificant compared to that of Germany"s allies. Finally, although there were opportunists, anti-Semites, and ideological fanatics among the Ukrainians, there is no evidence indicating that their number was proportionally greater than among other nationalities.

    On the individual level, collaboration with the Germans usually took the form of participation in the local administration of the German-supervised auxiliary police. Motives for taking such positions varied. In Western Ukraine, where, before the war, Poles had excluded Ukrainians from even the lowest administrative positions, the desire to have at least a minimum of authority in Ukrainian hands and to turn the tables on hated rivals was often a major motive. The need to find employment or to satisfy personal ambitions was, as always, an important consideration. The most notorious form of collaboration was to act as a concentration camp guard. Invariably, guard positions were held by Soviet prisoners of war, who had the difficult choice of accepting the task or perishing in the camps.

    Given the lowly position of Ukrainian collaborators in the Nazi apparatus and the ss monopoly on the actual extermination of Jews, Ukrainian participation in the massacres was neither extensive nor decisive. When it did occur, it usually took the form of auxiliary policemen herding Jews into ghettos. However, there were also many Ukrainians who risked the death penalty by aiding Jews. Metropolitan Sheptytsky was an outstanding example: not only did he shelter hundreds of Jews in monasteries but he also used his sermons to decry the Nazi slaughter of Jews. In 1943 an ss report to Himmler stated that the metropolitan was adamantly opposed to the Nazi anti-Semitic outrages and that he had come to consider nazism to be an even greater evil than communism.

    Aside from the abortive interlude between the OUN and the Germans in the early days of the war, the most important case of Ukrainian cooperation with Hitler"s regime on the organizational level was the formation of the ss volunteer Galicia Division. In spring 1943, after the stunning German defeat at Stalingrad, Nazi authorities belatedly decided to recruit non-German "easterners" into their forces. Consequently, Otto Wächter, the governor of Galicia, approached the Ukrainian General Committee (UCC) with a proposal to form a Ukrainian division in the German army. After much debate and despite opposition from the OUN-B, Kubijovych and his associates agreed. Their immediate reason for the creation of such a division was the hope that it might help to improve German treatment of the Ukrainians. The specter of 1917-20 was also extremely influential in persuading the UCC leadership, for Kubijovych and his associates (as well as Metropolitan Sheptytsky himself) were convinced that it was the lack of a well-trained army that had prevented Ukrainians from establishing their own state after the First World War. Realizing that the defeat of Germany was probable, they were determined that this time Ukrainians would not be caught in the ensuing chaos without a regular military force. It should be emphasized that both the Ukrainian organizers of the division and its members were motivated primarily by patriotic and anti-Soviet motives, not by pro-Nazi sympathies.

    In the negotiations leading up to the formation of the division, the UCC insisted that the unit fight only against the Soviets. Wächter, on Himmler"s instructions, demanded that the entire higher divisional command be German and, in order not to irritate Hitler, that the division be called Galician rather than Ukrainian. When the UCC called for volunteers in June 1943, over 83,000 men responded. Of these, 13,000 eventually became members of the ss Volunteer Galicia Division.

    The men of the Galician Division were not the only Ukrainians in Hitler"s armies. Scattered among the approximately 1 million former Soviet citizens who wore German uniforms in 1944 were about 220,000 Ukrainians (most of the others were Russians). To put these numbers into perspective, it should be remembered that about 2 million Ukrainians fought on the Soviet side and that large numbers also fought in Polish, Romanian, Hungarian, Czech, American, and Canadian forces. Such was the fate of a stateless people.

[72]    There is no evidence that Mr. Katriuk, prior to August of 1944, made any attempt to leave Battalion 118. This, in any event, would be most surprising since leaving the battalion might have been considered to be desertion and would perhaps have resulted in the firing squad. On the other hand, a man could leave to join the partisans and fight against Germany which, in the end, is what Mr. Katriuk did in August of 1944 when he and others joined the FFI.

[73]    On the evidence before me, I cannot accept Mr. Katriuk's evidence that refusal to join Battalions 115 and 118 necessarily meant deportation or forced labour. Rather, I am of the view that Mr. Katriuk joined the battalions for a number of reasons, possibly including better living conditions and avoiding hunger. Another possible reason for joining a battalion was that Ukrainians, at least for a short period of time, preferred the Germans to the Russians and were prepared to fight against their former oppressors. In the end, I must agree with Dr. Golczewski that Mr. Katriuk decided that joining a battalion was the lesser evil of the choices that life was offering him at that time. In reaching this conclusion, I wish to make it clear that I do not believe that Mr. Katriuk was entirely candid in relating his participation in Battalion 118. He clearly was not prepared to answer fully the questions put to him regarding his participation in Battalion 118 and, more particularly, in company number 1 of that battalion. In my view, he was only prepared to testify with respect to generalities and not to specifics. This does not, however, lead me to infer that Mr. Katriuk was trying to conceal that he had committed or participated in the Commission of war crimes. As I indicated earlier, Anne McLellan did not adduce any evidence, other than that of the expert historians, to prove her allegation that Mr. Katriuk had committed war crimes. In reaching that conclusion, I am perfectly conscious of the fact that the victorious powers, which include Canada, are the ones that decided what collaboration meant and who collaborators were. For reasons which will appear later on, this finding is not, in any event, determinative of the questions which I must answer.

[74]    It is not disputed that Mr. Katriuk misrepresented his identity when he applied for a visa in Paris in 1951. Consequently, Mr. Katriuk concealed material circumstances when applying for permanent residence in Canada. However, by reason of his application in 1957 to have his name changed from Schpirka to Katriuk, it does not necessarily follow that Mr. Katriuk obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

[75]    On this issue, Lucienne Robillard's position is that there was in existence in 1951 a system which provided for screening of immigrants based on the information which they provided in their application forms and, in particular, information regarding their residences and employments from 1938 until the date of their applications. Lucienne Robillard submits that this system could only be effective if applicants provided accurate and truthful information regarding their identity and their history, as requested in the application form and reviewed during a visa-vetting interview.

[76]    Lucienne Robillard submits that, when the applicant applied to come to Canada in 1951, persons found to be collaborators were not admissible. According to Lucienne Robillard, there was a blanket exclusion in regard to "collaborators".

[77]    I will now briefly review Canada"s immigration policy⁸ concerning the entry into Canada of "undesirable" persons and the manner in which the government chose to implement its policy.

[78]    By the end of the Second World War, Canada"s immigration policy was still subject to an order in council⁹ adopted in 1931 pursuant to the Immigration Act, R.S. 1927, c. 93 (the "Immigration Act, 1927"). As a result, it was quite difficult, if not impossible, for immigrants from countries other than the United Kingdom, the United States, Ireland and the Dominions to come to Canada as permanent residents. There were up to six hundred thousand displaced persons at the end of the war. Thus, Canada was not in a position to accept the large-scale immigration which resulted from the war.

[79]    From 1945 to 1947, Cabinet held many discussions with a view to "relaxing" the provisions of the 1931 order in council. In October 1945, an order in council¹⁰ was passed so as to allow refugees who had entered Canada during the war to obtain landed status. In January 1947, Cabinet decided that a number of statutes would either be repealed or amended to end racial discrimination, particularly as concerned persons of Asian origin.

[80]    On May 1, 1947, the Prime Minister of Canada, the Right Honourable Mackenzie King, made the following statement in the House of Commons:

    The policy of the government is to foster the growth of the population of Canada by the encouragement of immigration. The government will seek by legislation, by regulation, and vigorous administration, to ensure the careful selection and permanent settlement of such numbers of immigrants as can advantageously be absorbed in our national economy.

    ...

    Because of the limitation of transport, the government decided that, as respects immigration from Europe, the emphasis for the present should be on the admission of the relatives of persons who are already in Canada, and on assisting in the resettlement of displaced persons and refugees.

    ...

    The government is sending immigration officers to examine the situation among the refugee groups, and to take steps looking towards the early admission of some thousands of their number. In developing this group movement, the immigration branch and the Department of Labour will determine jointly the approximate number of persons who can be readily placed in employment and absorbed into various industries and occupations. Selection officers will then consider applicants for entry into Canada, examine them on a basis for suitability and physical fitness, and make arrangements for their orderly movement and placement. Persons so admitted will, of course, be included in whatever quota Canada finally accepts as its share in meeting the general problem. In taking these steps the government is seeking to ensure that the displaced persons admitted to Canada are of a type likely to make good citizens.

    ...

    Let me now speak of the government"s long term programme. It is based on the conviction that Canada needs population. The government is strongly of the view that our immigration policy should be devised in a positive sense, with the definite objective, as I have already stated, of enlarging the population of the country. This it will seeks [sic ] to attain through the development and energetic application of productive immigration measures.

    ...

    The population of Canada at present is about 12,000,000. By 1951, in the absence of immigration, it is estimated that our population would be less than 13,000,000 and that by 1971, without immigration, the population would be approximately 14,600,000. Apart from all else, in a world of shrinking distances and international insecurity, we cannot ignore the danger that lies in a small population attempting to hold so great a heritage as ours.

[81]    Between June 1947 and the fall of 1948, Cabinet, by way of orders in council, agreed to accept up to 40,000 displaced persons destined for the bulk labour category, i.e. woods and garment workers, construction workers, utilities labourers, domestics and special workers.

[82]    In deciding to broaden the categories of immigrants admissible to Canada, security remained a major concern of Cabinet. The Gouzenko spy scandal,¹¹ in the fall of 1945, did nothing to alleviate Cabinet"s concern in that regard. In the spring of 1946, a decision was taken to establish a Security Panel for the purpose of coordinating the planning, organization and execution of security measures throughout the Government of Canada. The first meeting of the Security Panel took place on June 24, 1946. Its members were the Secretary to the Cabinet, senior security officials of the Armed Services, External Affairs, and the Royal Canadian Mounted Police ("R.C.M.P."). The Chairman of the Panel was Arnold Heeney, the Secretary to the Cabinet and the senior Deputy Minister.

[83]    At its second meeting on July 8, 1946, the Security Panel discussed the issue of "undesirable aliens" entering Canada and it was noted that there did not exist any Canadian organization responsible for the screening of prospective immigrants abroad on grounds of security. A committee was formed to examine the feasibility of enacting new regulations with respect to the refusal of immigrants for reasons of security.

[84]    At its meeting of August 5, 1946, the Panel decided that screening should be dealt with by way of administrative action rather than by legislation. The rationale for this decision appears to have been Cabinet"s desire for its concerns regarding security screening of prospective immigrants to remain "secret".

[85]    In August 1946, the Security Panel recommended that the R.C.M.P. should be sent to Europe to assist immigration officers. Specifically, R.C.M.P. officers would have the responsibility of screening prospective immigrants on grounds of security. The Commissioner of the R.C.M.P. agreed with this proposal and a team of officers was sent to London at the end of October 1946. In a letter dated October 23, 1946, the Commissioner, S.T. Wood, indicated to Sergeant W.W. Hinton that his duties in London would be the following:

5.     Your duties will be to check the names of any potential Canadian immigrants passed to you by the Immigration Branch, Ottawa, through External Affairs. These names will be checked against records available at the British Passport Control Department of the Foreign Office, the Special Branch of the Metropolitan Police, and against any other records which may from time to time be opened to you, such as, the Security Control Section, A.N.G.

6.     Names of potential immigrants will be supplied to you on individual application forms which have first been subject to a check at this headquarters. The result of this check will be noted on the form itself. Such forms will be dispatched by the Immigration Branch, Ottawa, to External Affairs, and will then be transmitted by diplomatic bag to London.

7.     When you find that an applicant has a record which indicates it would be undesirable to admit him to Canada, you will mark the form "not clear for security" and return it to the Immigration Branch, Ottawa, through the same channel, i.e., the High Commissioner"s Office for transmission by diplomatic bag.

8.     Forms on applicants having no unfavourable record will be marked "clear for security" and dispatched to the Immigration Branch, Ottawa, in the same manner.

9.     In each case where an applicant is rejected by you on security grounds, you will compile a report to this headquarters stating the source of your information and the grounds for rejection. These reports will also be forwarded by diplomatic bag.

10.     All reports both to Immigration Department and this headquarters will be classified as "secret."

11.     In deciding what factors render a potential immigrant undesirable you will be guided by the verbal instructions given at this headquarters. You will also pay attention to any additional information you may be able to secure from your U.K. contacts as to the background and status of any organizations which have not been specifically dealt with or with which you may not be acquainted.

12.     The objective is to deny admission to any persons who, from their known history and background, would be unlikely to adapt themselves to the Canadian way of life and to our system of Democratic government. [Emphasis added]

[86]    In a secret memorandum for the Security Panel dated March 30, 1948, the Secretary of the Panel pointed out that, as of that date, the R.C.M.P. security staff at the London office was comprised of one officer, one sergeant, one civilian clerk and two stenographers.

[87]    On May 10, 1948, the Commissioner of the R.C.M.P. wrote to L.L. Keenleyside, the Deputy Minister of the Immigration Branch. In his letter, the Commissioner indicated the following:

    I am inclined to think that Mr. Fortier¹² is of the opinion that our personnel stationed Overseas have responsibilities and a scope far beyond their actual duties. This Force is not conducting an intelligence organization Overseas in the accepted sense of the term nor, for that matter, a counter-intelligence organization. These men are appointed for the sole purpose of checking, insofar as is possible, the backgrounds of persons who have made application for admission to Canada. These included Displaced Persons in Germany and applicants from other countries on Continental Europe particularly those within the Soviet zone of influence.

    We are interested mainly in obtaining a satisfactory answer to two questions: first, what were the applicant"s sympathies and activities during the late war, and second, is he sympathetic to Communism or any other form of subversive influence opposed to our democratic way of life.

    ...

    There is one difficulty which we encounter in dealing with persons coming from countries in Western Europe, etc., within the Soviet zone of influence. In such cases a period of approximately 15 days is allowed to this Force to make a security check. If no report is forthcoming from this Force at that time it is quite customary to allow the person to proceed. With conditions in Europe today it is often very difficult to get a report in such a short time as we are dependent on the good offices of the security forces belonging to such countries. As a result, we have had several instances of persons being admitted to Canada who, had they been checked prior to their arrival, would certainly not have been cleared for security. A number of these people are still in this country and must be kept under some form of observation for a considerable time to come.

    We have been endeavouring to arrange to place security officers at various Canadian Legations in Western Europe. Due to lack of space this has not been possible heretofore but we are, with the assistance of the Department of External Affairs, endeavouring to overcome this obstacle. [Emphasis added]

[88]    In a letter dated July 26, 1948, George B. McClelland, Superintendent, and the officer in charge of Special Branch of the R.C.M.P., wrote to Major J.A. Wright, posted to Canada House in London. In his letter, Superintendent McClelland, in discussing the rejection of applicants for immigration to Canada on the basis of enemy nationality, makes the following points:

4.     It is felt here, therefore, that the following policy should be adopted. We will clear the individual for security provided there are no other grounds for rejection such as known Communist, criminal, collaborator, etc. The matter of whether or not he or she should be accepted on a straight nationality basis should then be left to the Visa Officer.

5.     This point was discussed with Mr. Congdon and Colonel Fortier here in some detail and they agreed.

6.     Would you, therefore, have these instructions conveyed to our men in Germany and Austria and also to our personnel situated at Rome, The Hague, Brussels, Paris, etc. [Emphasis added]

[89]    In a R.C.M.P. memorandum dated November 20, 1948, entitled "Screening of applicants for admission to Canada", the following categories of immigrants are stated to be non-admissible to Canada:

(m)     Trotskyite or member of other revolutionary organization. [Emphasis added]

[90]    On February 7, 1949, the Associate Commissioner of Immigration, Overseas Service, advised the Commissioner as follows:

    In the past applications have been rejected by the R.C.M.P. without giving reasons for rejection. In several cases this procedure caused this Department to communicate with the R.C.M.P. in order to learn the grounds of rejection. This was necessary because in certain cases we suspected that the reason for rejection was that the proposed immigrant might have served with the enemy forces. According to instructions, if the proposed immigrant has been forced to serve the enemy forces and could obtain evidence to that effect he was then admissible. To obviate this situation and in order that the senior officers of this Branch (the Minister, the Deputy Minister, the Director, Commissioner, Assistant Commissioner, Commissioner of Overseas Service, Asst. Commissioner of Overseas Service, the Superintendent of European Emigration and the Asst. Superintendent of European Emigration) would know the grounds of rejection, the R.C.M.P. have agreed to include after the words "Not Clear for Security" the grounds for rejection by indicating the grounds by a letter (a), (b), (c), (d), etc., whichever grounds are applicable. These grounds are listed as follows: - [Emphasis added]

    [The grounds which follow are those which appear in the R.C.M.P. memorandum dated November 20, 1948.]

[91]    In a memorandum dated September 16, 1949, the Privy Council"s office informed the Prime Minister of Canada on the rejection criteria for prospective immigrants. The memorandum reads as follows:

    Rejection of prospective immigrants on

1.     At a recent meeting of the Cabinet you inquired as to the authority for rejecting prospective immigrants on security grounds.

2.     The security screening of prospective immigrants has been approved by Cabinet and the general arrangements for conducting the inquiries have been worked out by the Immigration Branch and the R.C.M. Police in consultation, when necessary, with the Security Panel. The Panel have on occasions sought direction from the Cabinet on particular problems that have arisen from time to time.

3.     The objective of the security screening has been interpreted in the following manner:

4.     Under these general principles, the following categories of persons have been regarded as inadmissible on security grounds:

5.     The only class covered by a precise Cabinet direction is that of Communist. On March 5, 1947, it was agreed that where, as a result of a security investigation, it was demonstrated that a prospective immigrant was a Communist, admission should be refused by the Immigration Branch without reason assigned for such action. From time to time the security problems attendant upon increased immigration have been considered by the Cabinet Committee on Immigration or the Cabinet. From the records it is apparent that a good deal of discussion took place on the question of whether the Immigration Act should be amended to exclude certain undesirable classes such as Nazis, Fascists and war criminals, or whether the problem should be dealt with by administrative means. The decisions taken were in favour of the latter course.

6.     As I think your interest in this subject stems from present practices in regard to prospective immigrants from France, I should add that such persons are subjected to security inquiries as a matter of course, whereas those from the United Kingdom are not. [Emphasis added]

[92]    The categories of persons inadmissible on security grounds which appear in the above memorandum at paragraph 4 thereof, also appear in a top secret memorandum dated June 9, 1950,_from the Deputy Minister to the Minister of Immigration.

[93]    On October 28, 1949, Cabinet issued Directive No. 14¹³ which dealt with the rejection of immigrants on security grounds. The directive provided as follows:

    The purpose of this directive is to bring to the attention of all government departments and agencies concerned the necessity for withholding information with regard to the rejection of immigrants on security grounds.

    Displaced persons and certain classes of prospective immigrants desiring to enter Canada are investigated under established procedures by the R.C.M. Police. Persons in specified categories (i.e., Communists, members of the Nazi or Fascist Parties or of any revolutionary organization, "collaborators", and users of false or fictitious names or documents) are regarded as inadmissible under the Immigration Act and are refused a visa. As some of the persons so rejected are not aware that their subversive records are known to security and intelligence agencies, disclosure of the reasons for their rejection as immigrants tends to excite suspicion and compromise valuable sources of information.

    For these reasons, it is important that, in such cases, no intimation to [sic] given to the applicant, the relatives or the sponsor that entry had been refused on security grounds. In some instances, this information has been passed on to the applicant or the sponsor by persons who, because of their position, have had access to the facts. This has resulted in serious embarrassment to the immigration authorities and to the Police.

    In view of the above, the Cabinet decided on September 29th, that under no circumstances should the reason for withholding permission to enter Canada, in the case of displaced persons and prospective immigrants, be attributed to security grounds. The only information to be given out in these cases should be a simple statement, without explanation, that a visa has been refused. [Emphasis added]

[94]    On August 19, 1949, A.J. Desjardins, Attaché, Visa Section, Paris, in a memorandum addressed to the Commissioner, Overseas Service, Immigration Branch, discussed the immigration forms being used at the Canadian Consulate in Paris in regard to prospective immigrants. In his memorandum, Mr. Desjardins suggests that it would be preferable if the applicants were "to complete the form himself, thus avoiding at least some additional work by our visa officers, ...". To the memorandum is attached a proposed form with numerous questions and answers. One of the proposed questions is question number 35 which requires an applicant to provide details regarding his residences and employments between 1938 and the date of his application.

[95]    In an instruction dated February 14, 1950 issued by the Acting Director of the Immigration Branch of the Department of Citizenship and Immigration, immigration officers are informed:

2.     All other immigrants are subject to security screening. [Emphasis added]

[96]    On August 21, 1950, copies of immigration form O.S.8 were sent to the heads of Canadian posts abroad by the Department of External Affairs. The covering letter indicated that:

    I enclose a supply of Settlement Forms Imm. O.S. 8 to be completed by applicants abroad who have no relatives or friends in Canada, but who otherwise satisfy the Visa officers as being desirable immigrants, see paragraph 9 of the "Administration of new Immigration Regulations Order-in-Council P.C. 2856" enclosed with Consular Document No. 21 of July 4, 1950.

    Additional copies of Form Imm. O.S. 8 will be forwarded upon request.

[97]    This form does not specifically request an applicant to provide details of either his residences or employments during the war years. However, question 36 requires the applicant to provide details on the longest job he has had in the last ten years and question 37 requests the applicant to indicate how many jobs he has had in the last ten years.

[98]    In a memorandum dated November 6, 1950, to the Officer i/c Special Branch, Headquarters, R.C.M.P. in Ottawa, Major Wright of the London office reported to his superiors with respect to his visit to Paris in October 1950. The relevant points of Major Wright"s report are as follows. He met with Sergeant Constable Colville and the immigration officer in charge, Mr. Cormier, and discussed with them the possibility of posting an additional man to the Paris office. Major Wright was informed that the work in Paris was increasing to such an extent that Sergeant Colville did not believe that he would be able to cope without further assistance. During the meeting, Sergeant Colville complained that it was extremely difficult to obtain complete information from French officials about criminal records. Mr. Cormier informed Major Wright that having a second person to help Sergeant Colville "would enable personal interviews of all immigrants to be made". In his memorandum, Major Wright goes on to explain what follows:

6.     On the 26th October I had a lengthy interview with Mr. Cormier and Colville. Relations between them appeared to be quite satisfactory. Mr. Cormier officially made two requests. Firstly, that a second man be stationed at Paris to assist Colville. This would enable personal interviews of all immigrants to be made. The great majority of those going to Canada were non-French and required personal screening as much or more than those in the D.P. Camps of Germany, as the foreigners in France were mainly newcomers concerning whom very little was known. Secondly, that the office system inaugurated by Cpl. De Miffonis - with the co-operation of Mr. Desjardins (Mr. Cormier"s predecessor) be simplified. Colville was endeavouring to continue the very thorough but to some extent unnecessary office and filing system inaugurated by de Miffonis which created too much work for both Departments, Mr. Cormier"s and Colville"s.

7.     Mr. Cormier advised that in 1951 it was anticipated that approximately 6,000 visas would be issued, and for that number to be issued, allowing for rejections etc. probably would mean some 10,000 examinations. Obviously if all prospective Immigrants were to be personally examined by Security, Colville would require assistance.

8.     Later, after interviewing Colville and going into his filing system, with a view to eliminating work, I instructed him to discontinue the long Questionnaire Form at present in use, photographs, etc. and other forms and in place thereof to use the London "Green Form", to be compiled direct from Immigration Files and this to constitute his permanent record for each case. This should simplify the office work very considerably.

9.     Colville has not been granted leave of absence since terminating his leave in December 1949. If he is to be stationed permanently at Paris, I would request instructions if the leave arrangements made when he was engaged for service in Germany viz, 10 days every three months are still to apply.

10.     I recommend strongly that an additional Security Officer be posted to Paris as soon as possible, and would request your instructions hereon, please¹⁴.

[99]    On January 2, 1951, by way of a memorandum, the Director of the Immigration Branch informed the Undersecretary of State for External Affairs that immigration form O.S.8 had been revised and that all copies of the former form O.S.8 should be destroyed. As in the previous O.S.8 form, there are no questions which deal specifically with an applicant"s residences and employments during the war years. The form does contain, however, the two following questions:

[100]    On January 8, 1951, Mr. Cormier, the visa officer in charge in Paris, wrote as follows to the Director, Department of Citizenship and Immigration, regarding revised form OS-8:

    Acknowledging receipt of your communication of 2nd January, we are very glad that the prescribed questionnaire has been simplified.

    For Stage "B" purposes¹⁵, we require to know the maiden name of the wife and the history of movements of applicant for visa, and as regards persons not born in France, the date of their arrival into this country. In connection with applicant"s history, the "Former addresses and other countries of residence" under item 2 of Part I of O.S.8, is not considered sufficient by our Stage "B" officer.

    So far as the maiden name of the wife is concerned, we are preparing a stamp reading "Wife"s maiden name - Nom de jeune fille de l"épouse" to be placed under Item 14 of the new type of O.S.8, for the time being. We will also attach to the questionnaire to be filled a chit as per sample herewith.

[101]    The questionnaire attached to Mr. Cormier"s memorandum is as follows:

(Veuillez remplir ce feuillet séparément)

Si vous n"êtes pas né en France, indiquez le lieu et la date de votre entrée en ce pays: ...........................................................................................................

[102]    On February 4, 1951, Directive No. 69 dated December 15, 1950, was amended . Page 5 of the amendment provides, in part, as follows:

    OR

[103]    On February 7, 1951, the Director of the Immigration Branch in Ottawa sent a memorandum to the Deputy Minister regarding security screening. The memorandum reads as follows:

    The introduction of P.C. 2856, designed to stimulate immigration to Canada, is bringing about the desired results insofar as the development of interest in Canada is concerned.

    Available figures show that there was an 8% increase in November, 1950, over the corresponding month in 1949. In December, 1950, the increase over December, 1949, amounted to 36.7%. In addition, statistics furnished by Immigration Visa Officers establish that there has been a great increase in the number of enquiries from potential immigrants. There is every indication that there will be a marked increase in immigration, provided that we take advantage of present interest - developed through the widening of admissible classes, publicity, etc., - by impeding the flow as little as possible.

    We have taken the necessary steps to streamline our procedure through such means as delegation of authority to Visa officers to process, immediately, persons who are suitable and desirable immigrants with good prospect of becoming established in Canada. Provided the only delay is that occasioned by the necessity for the immigrant to undergo a medical and civil examination, we hope to take full advantage of the interest shown by the intending immigrant.

    Unfortunately, the present security procedure has hindered and, as presently constituted, will continue to hinder the implementation of the immigration programme. To understand some of the reasons why this is so and to explore ways and means of obviating this situation, the security procedure currently in effect is reviewed briefly in the following paragraphs.

    1. At the present time, all immigrants are security screened except British subjects, citizens of Ireland, citizens of the United States, legal and permanent residents of the United States and native-born citizens of Central and South American countries residing therein.

    2. Security screening, at points outside Europe, may be carried out by the Visa officers through local contacts except in those cases which are referred directly by the Immigration Branch to the R.C.M..P. Headquarters in Ottawa for full security screening. In these excepted cases, it is understood that R.C.M.P. Headquarters obtain the clearance through the Security Office in London.

    3. In Europe, where our main concern lies, security screening is carried out primarily by Security officers where attached to our Visa offices. Their screening procedure may be broken down into two general classifications :

    The speed with which an immigrant is screened for security, under the method outlined in (b) naturally depends on the length of time it takes the various organizations to reply. A normal delay is from 4 to 7 weeks, although in some cases, it is considerably longer.

    4. In Germany and Austria, intending immigrants are screened primarily by personal interrogation, although in some cases, reference to local contacts, London, etc., may be necessary.

    5. In Sweden, the Netherlands, Belgium, France, and Italy, Security officers generally rely on the reference to local police, British authorities, local contacts or to London when necessary.

    6. In Greece, Switzerland and Denmark where no Security officers are located, Visa officers develop local contacts and carry out the same procedure as do Security officers in the other European countries.

    7. In the United Kingdom we have, in essence, the focal point of all security screening. The London Security Section is used as the final source of reference when other methods - local police, etc., - either fail to produce the required information or are not considered sufficiently reliable in specific cases under consideration.

    In addition, London not only clears all aliens residing in the United Kingdom who apply for admission to Canada, but also processes applications referred from R.C.M.P. Headquarters. London, therefore, deals with :

    The London Security Section processes only 35 cases per day, referred from points outside the United Kingdom, and at the present they are 7 weeks behind. This quota is fixed by the British authorities whose facilities are being used. In London, then, with enquiries feeding in from many sources, a backlog is building up which, as the immigration programme becomes intensified, will be even greater, with most serious effects.

    Any consideration of ways and means of alleviating this problem, naturally, would revert to the question of additional staff. Undoubtedly, the allocation of additional Security officers to the Visa offices on the Continent would improve the situation. However, this antidote in itself, if the present screening procedure remains in effect will not help the overall picture. More Security officers would merely mean a greater number of references to local police, British authorities, London, etc., whose rate of processing is now inadequate to meet our needs. In other words, additional Security officers without changes in procedure will hardly bring about the desired result.

    Personal interrogations (if additional Security officers were appointed) and fewer references to other sources by Security officers might be a partial answer to the problem. Certainly, the London Security Office, if relieved of the referrals from the Security officers on the Continent, might improve its present record in dealing with enquiries from other points throughout the world. For instance, a delay of one year is not uncommon in obtaining security clearance through London by R.C.M.P. Headquarters on a person residing in South America.

    Then too, consideration of the principles involved in security screening might be justified, when it is considered that since security screening was instituted, approximately 220,000 immigrants who required security screening have come forward and of the total number examined only 4,146 were rejected on security grounds. Of the 4,146 rejected, undoubtedly a fairly large proportion might now be considered for admission since the reasons for rejection no longer exist, e.g., service in the German Army is, in itself, no longer a clause for rejection.

    On the whole, it is felt that some streamlining of the present security procedure should be considered as an interim measure, to implement to the fullest degree possible the present immigration programme. While a revision of security procedure is desirable immediately, as a stop-gap measure, to take advantage of the extremely great current interest in immigration, a review of the principles of security screening should be instituted as soon as possible.

[104]    On May 23, 1951, Laval Fortier¹⁶ wrote to the Secretary of the Security Panel in the following terms:

                I have your letter of May 18^th, with reference to paragraph 10(3) of the minutes of the 36th meeting of the Security Panel. I would recommend the following changes in the present policy affecting the categories of rejection of certain classes of immigrants:

                As Category "C" - Member of the Nazi Party, is not now considered, in itself, a cause for rejection, recommend same consideration be given Italian Fascist Party, Member of Mafia to remain as at present. [Emphasis added]

[105]    On July 5, 1951, the Security Panel met and a discussion took place of proposed changes to the security screening criteria. A memorandum of the discussion dated July 6, 1951, reads as follows:

    At a meeting of the Security Panel held on July 5th, at which the writer and Mr. Hickman accompanied the Deputy Minister, there was discussed the Immigration Branch Security Screening Directive of February 14th, 1950, and some changes were recommended.

    Discussion on the categories introduced by the Mounted Police resulted in recommendations as follows: -

CATEGORY "B" -

    Non-German members Waffen S.S. found to bear mark of S.S. Blood Group were to be considered "Not Clear".

    Non-German members Waffen S.S. who joined this Organization prior to January 1st, 1943, to be considered "Not Clear".

    Non-German members Waffen S.S. who voluntarily enlisted subsequent to January 1st, 1943, to be considered "Not Clear".

    Non-German members Waffen S.S., who were conscripted or forced to enlist subsequent January 1st, 1943, cases to be reviewed on their merits.

    R.C.M.P. to follow present procedure of advising Visa Officers.

    The remaining Categories to be dealt with under the present procedure.

    It was suggested that External Affairs and the R.C.M.P. prepare a memorandum dealing with the categories as a whole.

[106]    On December 11, 1951, George B. McClellan, Superintendent, Officer i/c Special Branch, wrote to Colonel Laval Fortier with respect to collaborators. Mr. McClellan informed Colonel Fortier as follows:

    I have for reply your letter to the Commissioner, dated November 29, 1951, regarding collaborators.

2.     Your request for further particulars regarding collaborators raises a rather difficult question, as at the present time our Security Officers are very fully occupied in processing visa applicants, and, if they are required to conduct field investigations on collaborators, unless we considerably strengthen our staff overseas, the balance of interrogation must of necessity suffer.

3.     As you know, it has been the policy, where any doubt exists, to resolve that doubt in the favour of Canada, and as our sources of information must of necessity be very meagre, it is necessary to develop as much information as possible during personal interviews. It would require a great deal of field work to produce positive evidence, and the production of such evidence would, in most cases, be impossible.

4.     It would, perhaps, be desirable to discuss this matter with Inspector Hall who handles this work. If you would call him at 7602, he will call on you at your convenience. [Emphasis added]

[107]    In a memorandum to the Security Panel prepared by its secretary P.M. Dwyer, dated April 30, 1952, the Panel was asked to consider possible changes to the screening criteria and, in particular, with respect to collaborators. The memorandum reads, in part, as follows:

    Immigration Security Policy -

    Nazis, Fascists and Collaborators

1.     The application of Canadian immigration security policy to former members of Nazi organizations, Fascists and collaborators has for some time been under discussion by members of the Panel. The Department of Citizenship and Immigration and the RCM Police have asked that the question of collaboration be discussed by the Panel. An examination of present immigration security police shows that a similar consideration of membership in Nazi and Fascist organizations would also be desirable.

    ...

10.     The Department of External Affairs, at the request of members of the Panel, has consulted a number of its European missions and asked to what degree immigration restrictions should be applied against former collaborators in German occupied countries. Present immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits.

11.     The consensus of opinion of missions consulted in that while we should continue to enforce restrictions against those guilty of major crimes, collaboration should now be ignored except where a clear and present danger to Canada or Canadian institutions is involved. Our representatives add that where a prison sentence for collaboration has been served, the slate should be regarded as wiped clean. The following are listed as major collaborators:

    (a)     Those convicted of fighting against, or engaging in activities harmful to the safety and well-being of the Allied forces;

    (b)     Those convicted of implication in the taking of life, or engaging in activities connected with forced labour and concentration camps;

    (c)     Those who were employed by German police or security organizations and who acted as informers against loyal citizens and resistance groups;

12.     However, the RCM Police incline to the view that collaboration itself does involve a danger to Canada and Canadian institutions, because they believe that a person who has been disloyal to his country of birth may, if the occasion arises, be equally or more disloyal to a country of adoption. The RCM Police would therefore be reluctant to accept any relaxation of restrictions at present imposed on former collaborators.

13.     The Panel may wish to bear in mind that collaboration sometimes resulted only after intolerable pressures had been applied by the Germans, and may wish to make some provision for cases of this kind.

14.     The Panel is asked to consider this problem and make a fifth recommendation.

[108]    On May 15, 1952, the Security Panel met and discussed, inter alia, the proposals suggested in the April 30, 1952 memorandum. After due consideration, the Panel agreed that the following changes were in order. The changes agreed to by the Panel appear in paragraph 5 of the minutes of the meeting:

5.     The Panel then considered the paper in detail, made a number of emendations [sic] after discussion, and agreed that the following persons should be refused entry into Canada as immigrants:

    (a)     Former members of the S.S. the Sicherheitsdienst, the Abwehr, the Gestapo, and any former member of the Nazi party who, under Allied Control Council Directive No. 38 of 12th October 1946, was classified as a Major Offender or Offender of who, on the evidence before a Security Officer is in his opinion within either of these categories. Particular care should be taken to exclude persons who were responsible for brutalities in concentration or labour camps.

    ...

    (c)     Former collaborators who should be excluded on grounds of moral turpitude, except minor collaborators whose actions resulted from coercion.

[109]    Pursuant to paragraph 38(c) of the Immigration Act, R.S. 1927, c. 93, (the "Immigration Act, 1927") the Governor in Council was given wide discretion to prohibit or limit, by way of proclamation or by order in council, the entry into Canada of certain immigrants:

38. The Governor in Council may, by proclamation or order whenever he deems it necessary or expedient,

    ...

(c)     prohibit or limit in number for a stated period or permanently the landing in Canada, or the landing at any specified port or ports of entry in Canada, of immigrants belonging to any nationality or race or of immigrants of any specified class or occupation, by reason of any economic, industrial or other condition temporarily existing in Canada, or because such immigrants are deemed undesirable having regard to the climatic, industrial, social, educational, labour or other conditions or requirements of Canada or because such immigrants are deemed undesirable owing to their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry.

[110]    In furtherance of the objective stated in paragraph 38(c) of the Immigration Act, 1927, order in council P.C. 1950-2856, S.O.R./50-232, C. Gaz. 1950.II.765, was passed in June of 1950. This order in council, entitled Immigration Act: Prohibiting the landing in Canada of immigrants with certain exceptions, prohibited the landing in Canada of immigrants of all classes and occupations, save for the exceptions provided in the order. Paragraphs 4(a) and (b) read as follows:

    4.     A person who satisfies the Minister, whose decision shall be final, that: -

(b)     is not undesirable owing to his peculiar customs, habits, modes of life, methods of holding property, or because of his probable inability to become readily adapted and integrated into the life of a Canadian community and to assume the duties of Canada citizenship within a reasonable time after his entry.

[111]    In Canada (Minister of Citizenship and Immigration) v. Dueck, (21 December 1998), Ottawa: F.C.T.D., T-938-95 [unreported], my colleague Mr. Justice Noël comes to the conclusion that, until the enactment of order in council P.C. 1950-2856, there was no authority under the Immigration Act, 1927 and the orders in council enacted thereunder, to refuse entry into Canada of immigrants on security grounds. I agree with the view taken by Noël J.. However, on August 14, 1951, when Mr. Katriuk was landed in Canada, there was clearly a legal basis to refuse entry to immigrants who did not meet the security requirements.

[112]    I now turn to the process by which prospective immigrants were screened for security by the R.C.M.P. in light of the criteria set out in the above memoranda. The Minister called a number of former R.C.M.P. officers to testify on this point. William H. Kelly, a former Deputy Commissioner of the R.C.M.P., explained his role in London between 1951 and 1954. While there, Mr. Kelly was in charge of security control for the whole of Europe. A number of countries, including France, were, at that time, under the jurisdiction of the London office. One of Mr. Kelly"s duties was to visit the countries under his jurisdiction and to ensure that files were reasonably handled. He, on occasion, would sit on interviews conducted by security officers. He would also be asked to make rulings in borderline cases. When shown the memorandum dated September 16, 1949, setting out the list of inadmissible categories on security grounds, Mr. Kelly stated that he had never seen this document but, when referred to paragraph 4 thereof, stated that the R.C.M.P. worked on the basis of the criteria set out in that paragraph. He indicated that his point of reference was Cabinet Directive No. 14. With respect to paragraph 4(g) of the September 16, 1949 memo entitled "collaborators presently residing in previously occupied territory", Mr. Kelly testified that, as far as he was concerned, "collaboration" necessarily meant exclusion. Mr. Kelly stated that it was only in May of 1952 that the exclusion of collaborators was changed to allow some flexibility in that "minor collaborators" would not be excluded where their actions "resulted from coercion"¹⁷. Mr. Kelly explained that the same criteria was being applied by the R.C.M.P. throughout Europe and that it was his responsibility to ensure that that was taking place. He explained that security screening was one step in a three step immigration process.

[113]    Security screening was conducted on the basis of information provided by the immigrant in his application form and, in particular, information providing his residences and employments between 1938 and the date of his application. Security screening involved paper screening with intelligence organizations of the countries where the applicant had indicated he had been and with intelligence organizations from the United Kingdom and the United States which might be in a position to provide information regarding the applicant. Following the paper screening, there would be a personal interview during which the immigrant would be questioned by a security officer regarding his identity and history. Mr. Kelly conceded that the R.C.M.P."s security screening was not very effective since it was difficult, if not impossible, for the security officer to ascertain whether an applicant was telling the truth. It was only when the officer could discover something through the intelligence network that an applicant would be refused entry into Canada. Finally, Mr. Kelly emphasized that collaboration with the Germans to any degree meant rejection. In cross-examination, Mr. Kelly stated that the main security concern was Communist infiltration which rose dramatically after the Gouzenko affair in 1945.

[114]    Another R.C.M.P. officer called by the Minister was Donald Graham Cobb. Mr. Cobb spent three and one half years in Paris between 1954 and 1958 as a visa control officer (which, in effect, meant security officer) and was then posted to Rome and Cologne between 1958 and 1962. He testified that in Paris he worked under the tutelage of senior officers namely, Percy Colville, a retired British police officer, and Sergeant Henri Chénier. He indicated that the first order of business in screening an applicant was to establish the person"s identity. If there was any doubt, the applicant would be asked to provide documents to verify his identity. The second order of business was to obtain information from the applicant regarding his activities during the war. Finally, Mr. Cobb explained that the security officer would attempt to obtain information regarding the applicant"s political history. Mr. Cobb stated that what he did between 1954 and 1958 was simply a continuation of what the Paris office had been doing in the past. He indicated that the rejection criteria which appears in the memorandum of September 16, 1949 was the criteria that he applied in dealing with applicants. Mr. Cobb made it clear that "they were not focussing on the small fry". He explained that there was a group of four to five people working together in the Paris office who consulted with each other and with the London office. Mr. Cobb explained that French citizens were screened like all other applicants. However, contrary to non-French applicants, French citizens were not interviewed. In cross-examination, Mr. Cobb stated that a great majority of people who applied through the French office were non-French. He indicated that he believed he had processed approximately 3,000 cases during his years in Paris. The rejection rate, according to Mr. Cobb, was probably five percent of all cases. In redirect, Mr. Cobb indicated that a non-French applicant who had obtained a medal from the French resistance would nonetheless have been screened thoroughly.

[115]    The Minister also called Donald D. Cliffe who had been posted to Italy in March 1951 where he spent three years. He returned to Canada in September 1954 for two months and was then sent to Stockholm and Helsinki for two and one half years. In 1957, he was sent to Switzerland until the summer of 1958. Mr. Cliffe explained that he was the "control" officer and worked with a medical doctor and a visa officer. He explained the visa control process as follows. Applications would be received by the visa officer who would then pass the file on to the security officer. The security officer would attempt to gather information regarding the applicant"s activities from 1938 onwards and would attempt to obtain data from various intelligence networks. The security officer would then conduct interviews with the applicants. He referred to this process as "stage B". He testified that, if the security officer informed the visa officer that the applicant did not pass security, it was the end of the matter. He also stated that, as part of the process, an applicant would be seen and examined by a medical officer. He stated that the London office had overall responsibility for the screening process and that the rejection criteria which appears in the memorandum of September 16, 1949 was the criteria that he based his decision on in deciding whether or not an applicant should be rejected. He made it clear that all collaborators were to be rejected and that he acted accordingly. He testified that auxiliary police in Ukraine and in the Baltic States were, as far as he was concerned, collaborators and should have been rejected. In cross-examination, Mr. Cliffe explained that it was possible for him and other security officers to exercise some discretion in dealing with applicants. He gave as an example the case of an Italian uneducated labourer who would have joined the Italian Fascist Party because it was the thing to do but, in fact, had not participated in any of the party"s activities. In such a case, Mr. Cliffe stated that he would probably not have rejected such an applicant.

[116]    The Minister also called Lucien Roger St-Vincent who joined the immigration services in November 1947. In 1948, he was posted to Germany as a visa officer. While in Germany, he worked with a doctor and a security officer and they travelled together to various refugee camps, including camps in Austria. He stated that the applicant"s file was always brought to the security officer and then to the medical officer. He made it clear that he would never overrule a security officer"s decision. He explained that an applicant"s war time activities fell under the responsibility of the security officer and that evasive applicants were always sent to the security officer. In 1951, Mr. St-Vincent returned to Montreal for five years where he was a port of entry officer. By "port of entry", Mr. St-Vincent meant that he would, on occasion, be called upon to attend on ships which arrived in Montreal with sometimes 600 to 900 immigrants on board. He explained that immigrants were landed in Canada upon their arrival in the country and that the port of entry officer would verify, amongst other things, where the immigrants had boarded the ship in Europe. He explained that port of entry officers would board a ship upon its arrival in Quebec City or Montreal and conduct an examination of every immigrant on board that ship. This would take approximately four to five hours. Mr. St-Vincent explained that the immigrant"s visa was evidence of his admissibility to Canada but that, in the end, landing in Canada was the decision of the landing officer at the port of entry.

[117]    Walter Gunn was also called by the Minister. He joined the immigration services of Canada in 1946 as an immigration officer in the Montreal downtown office. From 1950 to 1954, Mr. Gunn was a port of entry officer and explained that teams of six to twelve officers would go on board ships arriving in Montreal and Quebec City. He explained that the duty of a port of entry officer was to enforce the Immigraction Act and Regulations so as to exclude from Canada inadmissible persons. He explained that, until the end of 1951, port of entry officers used a particular form, namely the Canadian Government Return Form ("C.G.R."). Mr. Gunn explained that the C.G.R. would be filled out during the voyage by the ship"s purser. Presumably, the ship"s purser would accomplish this task while speaking to the immigrants onboard and verifying their documents. Upon the ship"s arrival in Canada, the port of entry officers would review the information appearing in the C.G.R. with the immigrants to verify whether that information was accurate.

[118]    I should point out that the C.G.R. for the ship NELLY which sailed from Le Havre on August 6, 1951 and arrived in Quebec City on August 14, 1951, was adduced in evidence. It contains entries in the name of Nicolas and Maria Schpirka. The form clearly shows that the Schpirkas were landed by an immigration officer [NAME?] in Quebec City on August 14, 1951. I should also point out that the form indicates that Mr. Katriuk declared that he was born in Mamaieski¹⁸, Ukraine. The form also shows that Mr. Katriuk declared that his nationality was Ukrainian. In his application for Canadian citizenship, however, the respondent declared that he was born in Luzhany, Romania, and that his nationality was Romanian.

[119]    From 1954 to 1957, Mr. Gunn was posted to Brussels where he was a visa officer. He explained that there were two doctors, one security officer and three visa officers employed in the Brussels office. Mr. Gunn stated that he issued over 4,000 visas during his three years in Brussels.

[120]    In her rebuttal evidence, the Minister called Alex Trupp who joined the R.C.M.P. in 1947 at the age of twenty. Mr. Trupp was posted to Germany from 1953 to 1956 as a visa control officer. He testified that, while there, they (he and two other "seasoned" officers) were looking for Gestapo, S.S. criminals, communists and collaborators.

[121]    I will now address the evidence submitted by Mr. Katriuk regarding obtaining his visa through the Paris office in 1951. Mr. Katriuk and his wife applied for visas in the names of Vladimir and Maria Schpirka. They applied for their visas under false names. As I have already indicated, Mr. Katriuk's position is that he was never asked, when he applied to come to Canada, what he did during the war years. He also testified that he was not interviewed. He indicated that a form had been filled out by an employee at the Consulate who had taken information from his identity card. Finally, as no one asked him about his activities during the War, Mr. Katriuk stated that he did not volunteer the information.

[122]    I now turn to the evidence of Mrs. Katriuk. When the Schpirkas applied to come to Canada in 1951, Mrs. Schpirka knew that her husband"s real name was Katriuk. She testified that they attended the Canadian Consulate on three occasions. The first time, they obtained information with regard to what had to be done. The second time, they brought their documents and the third time, they saw a doctor who took chest x-rays. She explained that an employee of the Consulate asked questions which they answered and that the employee filled out a form on their behalf. Although she could not specifically remember, Mrs. Katriuk, in cross-examination, conceded that she and her husband must have signed the form. Mrs. Katriuk did not remember being asked any questions regarding her residences and employments since 1938.

[123]    Mr. Katriuk called two former Ukrainian colleagues of Battalion 118 to testify on his behalf. The first witness was Ivan Serbyn. Mr. Serbyn was born in 1919 in Bukovina, Romania. He, like Mr. Katriuk, left Bukovina in 1941 to go to Kyiv. Mr. Serbyn was part of a group of men who, in 1944, left their battalion to join the FFI. Mr. Serbyn also refused to return to Russia and, as a result, enrolled in the FFL for a period of three years. As a member of the FFL, he was sent to Algeria where he underwent training in preparation for Indochina. While in Algeria, a Soviet Reconnaissance Group asked him to return to Russia and the FFL suggested that he change his name and go to Indochina. He decided to return to the Ukraine. The Russians put him on a ship bound for Europe and, when he arrived in the Russian zone of Germany, he left and made his way to Paris. In Paris, he obtained a temporary permit of three months which, in due course, was extended to ten years. He then went into business with Mr. Katriuk. Mr. Serbyn, like Mr. Katriuk, was a butcher.

[124]    In the spring of 1951, after receiving a letter of invitation from a M. Bannet, a Ukrainian who had immigrated to Canada around 1949, Mr. Serbyn attended the Canadian Consulate in Paris to inquire about his chances of being admitted as a permanent resident. Mr. Serbyn testified that he was informed by someone at the Consulate that, if he could pass the medical examinations and demonstrate that he owed no taxes to the French government, he should have no difficulty. Within a short period of time, Mr. Serbyn and his wife (a French national) were back at the Consulate with their documents. Mr. Serbyn"s wife presented her French passport and Mr. Serbyn presented his identity card. Both Mr. and Mrs. Serbyn were examined by a medical doctor. Shortly thereafter, the Serbyns were informed that their visas would be issued. Mr. Serbyn does not remember being asked any questions regarding his activities during the Second World War. Mr. Serbyn became a Canadian citizen in 1957 or 1958.

[125]    Mr. Katriuk also called as a witness George Hiltschuk, another Ukrainian from Bukovina. Mr. Hiltschuk was born on July 18, 1921. He met Mr. Katriuk during the march to Kyiv in the fall of 1941. In 1942, Mr. Hiltschuk became a member of Battalion 118. He was in platoon number 2 of company 1. He also joined the FFI in August 1944. In November 1944, Mr. Hiltschuk enrolled in the FFL for a period of three years. Shortly after joining the FFL, he was sent to Oran, Algeria, for military training. He spent one and one half years in Africa and was sent to Vietnam. He remained in Vietnam for eighteen months and then returned to Paris. As he already knew Mr. Katriuk and his wife, he contacted and stayed with them. In 1950, Mr. Hiltschuk decided that he wanted to visit his uncle who had been living in Toronto for over thirty years. On the basis of a letter of invitation received from his uncle and evidence that his travel costs were paid, Mr. Hiltschuk was given a visa for six months. Mr. Hiltschuk testified that, in the course of obtaining his visa, he was never asked about his activities between 1938 and 1945. He boarded a ship at Le Havre and landed in Halifax in December 1950. He stayed with his uncle for a few months and, at the end of January 1951, commenced work in a factory on St-Clair Avenue in Toronto, even though he did not have a work permit. At the end of his six months in Canada, he informed his uncle that it was his desire to remain in Canada. He went to an immigration office in Toronto with his uncle and his uncle signed an application to sponsor him as a permanent resident. In April 1953, Mr. Hiltschuk was landed as an immigrant to this country. Five years later, he applied for Canadian citizenship and was successful. At no time during this whole process does Mr. Hiltschuk remember being asked anything about his activities during the Second World War.

[126]    Order in council P.C. 1950/2856, enacted pursuant to paragraph 38(c) of the Immigration Act, 1927, allowed the Government of Canada to prohibit or limit the landing in Canada of certain categories of immigrants. By way of Direction No. 14, Cabinet made it clear that collaborators and users of false or fictitious names or documents were inadmissible under the Immigration Act, 1927 and should be refused a visa.

[127]    The R.C.M.P., which had been entrusted with the responsibility of screening prospective immigrants on security grounds, was made aware of Cabinet"s decision to reject certain categories of immigrants and, more particularly, had been told that collaborators and users of false or fictitious names or documents should be rejected. It is clear from the documents and from the testimony of the former R.C.M.P. officers that the officers in the field had been informed with respect to the rejection criteria and, more particularly, regarding collaborators and users of false or fictitious names or documents. Of that, in my view, there cannot be any doubt whatsoever.

[128]    I am satisfied that there was an immigration process in place which, if followed, would, in all likelihood, have led to the rejection of Mr. Katriuk. When I say that there was an immigration process in place, I mean that the government, through the Security Panel, had established criteria by which the admissibility of applicants for permanent residence in Canada would be decided and that the relevant criteria had been passed on to the agency whose responsibility it was to apply the criteria to those who applied for a visa. "Collaborators" and those who used false or fictitious names were categories of immigrants who were not to be admitted into this country by the R.C.M.P.. The former R.C.M.P. officers who testified before me all agreed that non-Germans who had fought with the German army or who had helped the German Forces against the allies were, as far as they were concerned, collaborators and were to be rejected.

[129]    One of the issues which I must decide is whether Mr. Katriuk, when he applied for a visa to enter this country in 1951, was asked to provide information concerning his activities between 1938 and 1945, either by way of questions in the form that he signed or by way of questions posed by the security officer during an interview.

[130]    There is not much evidence concerning the Paris Consulate in 1951. The closest we get to the Paris Consulate is by way of the information which appears in Major Wright"s report to R.C.M.P. Headquarters in November 1950. In that report, Major Wright relates his meetings and discussions with the security officer in the Paris office, Sergeant Colville, and the immigration officer-in-charge, Mr. Cormier. It appears from Major Wright"s report that Sergeant Colville was overwhelmed with work and, as a result of his discussions with Colville and Cormier, Major Wright made a strong recommendation that a second security officer be posted to Paris "as soon as possible". Major Wright makes it clear in his report that one of the reasons a second officer is necessary in the Paris office is that this "would enable personal interviews of all immigrants to be made". As I indicated earlier, there is no evidence that a second security officer was sent to Paris to assist Sergeant Colville. Was Sergeant Colville in the Paris office when Mr. Katriuk applied in 1951? If he was, was he the only security officer or had another officer been posted to Paris? There is no evidence whatsoever in that regard.

[131]    I know for a fact that the immigration officer in charge of the Paris office, Mr. Cormier, was still there in January 1951 since I have evidence of correspondence between Mr. Cormier and the Department of Citizenship and Immigration in Ottawa regarding the revised O.S.8 form. In his letter to Ottawa dated January 8, 1951, Mr. Cormier indicates that the Paris office, for stage "B" purposes, will attach to the revised O.S.8 form a questionnaire which the applicant will have to fill out. The questionnaire, which I reproduced earlier, requests the applicant to provide his residences and employments since 1939. It also requests the applicant, if not born in France, to indicate where and when he entered France.

[132]    The above is, for all intents and purposes, the whole of the evidence concerning the Paris office in 1951. No one who was employed at the Paris Consulate in 1951, either as a security officer or visa officer, was called by the Minister to testify. Further, no one was called by the Minister to testify with respect to the specific process in place in that office in 1951 and, more particularly, the manner in which visa applications were processed.

[133]    The evidence has shown, for example, that Mr. L.M. Carter was an employee in Canada"s Consular Service in Paris in January 1949. The evidence has also shown that Mr. A.J. Desjardins was the attaché, Visa Section, Paris, in August 1949. I also have evidence that Sergeant Colville of the R.C.M.P. and a Mr. Cormier were in the Paris office in November 1950. Through the evidence of George Hiltschuk, it was also shown that, in December 1950, one of the visa officers in the Paris office was a Mr. Mitchell. According to Joseph Gunn, Mr. Mitchell, a high ranking officer in the Visa Section in Paris, had been living in Canada when he died three or four years ago. The Minister did not offer any explanation as to why none of these potential witnesses were called. I know through the evidence that Mr. Mitchell is dead. However, with respect to the other potential witnesses, the evidence is silent.

[134]    One would also have expected the Minister to call as witnesses, persons who immigrated to Canada at about the same time as Mr. and Mrs. Katriuk in order to show how visa applications were being processed by the Paris office and to show that the Paris office was asking prospective immigrants what they did between 1938 and 1945. These witnesses could have also testified with respect to the immigration process as implemented by the Paris Consulate. For example, the C.G.R. form, to which I referred earlier in these reasons, contains the names of every passenger who came to Canada in August 1951 onboard the ship NELLY. Many of these passengers, as appears from sheet number 49 on which the names of Mr. and Mrs. Schpirka are found, boarded the NELLY at Le Havre. All I have in evidence is one sheet of the C.G.R. form and it is clear that there were at least 49 sheets and perhaps more, each containing the names of at least 20 immigrants. Once again, the Minister did not offer any explanation as to why no one was called to testify with respect to the form being used and the questions being asked at the Paris office in 1951.

[135]    The end result is that the Minister adduced no evidence, other than the documentary evidence to which I have already referred, to demonstrate that Mr. Katriuk was specifically asked about his war time activities. I am not concluding that Mr. Katriuk was not asked about these activities, rather I am concluding that the Minister has not met the burden imposed upon her to establish that fact.

[136]    Before moving on to the events of 1957 and 1958 in Montreal, I must say a few words about the immigration form in use in the Paris office in 1951. Form O.S.8 and revised form O.S.8 were sent to the various consulate offices abroad, including the Paris office. Revised form O.S.8 did not contain questions which dealt specifically with an applicant"s war time activities. As appears from Mr. Cormier"s memorandum of January 8, 1951, he informed his superiors in Ottawa that the Paris office did not believe that the revised O.S.8 form was sufficient for the purposes of stage "B". That is why Mr. Cormier indicated that a questionnaire would be attached to the form so as to obtain from the applicant information regarding his residences and employments since 1939. Was there a question in the form which Mr. and Mrs. Schpirka filled out when they applied in 1951, which sought from them specific information regarding their activities during the war years? On the evidence, I am not prepared to make such a finding. However, I am prepared to find, and do find, that Mr. Katriuk must, at the very least, have been asked to answer the two questions which appear on either form O.S.8 or revised form O.S.8., namely details regarding the longest job he had had in the last ten years and the number of jobs he had had during those ten years. I am also finding that Mr. Katriuk must have been asked when and how he arrived in France. Mrs. Katriuk made it clear during her cross-examination that a number of questions had been asked by an employee of the Consulate. She conceded that she and her husband must have signed an application. She specifically remembered answering a number of questions which appear either on form O.S.8 or on revised form O.S.8. In discussing the events which took place in Montreal, I will be returning to the questions which I believe were asked of Mr. Katriuk and which, in my view, were not truthfully answered.

[137]    The above findings do not, however, allow me to answer the question posed by the Minister as to whether Mr. Katriuk obtained his Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances. In order to answer this question, it is necessary to examine the events which took place in Montreal in 1957 when the applicant applied to the Department of Immigration to correct the name under which he was landed in Canada on August 14, 1951.

[138]    The purpose of Mr. Katriuk's application for correction of his visa application was not simply to correct his name. The true purpose, in my view, was to allow the landing of Vladimir Katriuk on August 14, 1951, in Quebec City, failing which Mr. Katriuk could not apply and obtain, as he did, Canadian citizenship in 1958. I have already related the relevant facts and made reference to the relevant correspondence which led to the Department"s decision to amend its records and to show that Vladimir Katriuk and his wife Maria Stephanie Katriuk were granted landing at Quebec City on August 14, 1951.

[139]    Mr. and Mrs. Schpirka were landed in Quebec City on August 14, 1951. In applying for a visa to come to Canada and in obtaining landing, they knowingly concealed material circumstances in that they failed to divulge their true identities. As a result, the officers in the Paris Consulate were, no doubt, deprived of essential information that might have enabled them to determine whether or not Mr. Katriuk should be admitted to Canada. That is why, in my view, the question posed by the Minister cannot be answered without considering together the events in Paris in 1951 and in Montreal in 1957. In other words, in order to decide whether Mr. Katriuk obtained his Canadian citizenship by false representation, or fraud, or by knowingly concealing material circumstances, Mr. Katriuk's application in 1957 and the information provided by him to obtain the correction of his name must be considered as part and parcel of his 1951 visa application. This, in my view, is the correct approach in law since the respondent, Vladimir Katriuk, was granted landing in Quebec City by reason of the decision taken in Montreal in 1957.

[140]    Mr. Katriuk's affidavit dated October 18, 1957 is not in evidence. No explanation was given to me why the affidavit was not available. All I know concerning that affidavit is what appears in the memorandum of October 17, 1958 sent by the Department of Immigration to the Registrar of Canadian Citizenship. It appears from that memorandum that Mr. Katriuk declared that he was born on October 10 [sic], 1921 at Luzhany, Bukovina, Romania, that he took refuge in France in 1944 and that he enlisted a few months later in the FFL under his true name. I know for a fact that Mr. Katriuk did not say anything in his affidavit concerning his activities prior to his arrival in France in 1944. I know this because Mr. Katriuk testified that he had not provided this information to his attorney Me Massé.

[141]    Mr. Katriuk's statement that he "took refuge in France in 1944" is not, on the evidence before me, an accurate and truthful statement. Mr. Katriuk came to France, not as a refugee, but as a member of a battalion which had been fighting with Germany against one of the allied powers. It is true that at the end of August or September 1944, Mr. Katriuk and many of his colleagues left the German camp to join the French underground. However, in my view, it cannot be said by any stretch of the imagination that Mr. Katriuk "took refuge in France in 1944". That is simply not the case.

[142]    It must be pointed out that Mr. Katriuk's application in 1957 is an application whereby he asks the Department of Immigration to amend its records on the basis of new information. The decision to allow the name change, and hence to land him as of August 14, 1951, was made on the basis of that information. This appears quite clearly from the letter dated May 13, 1958, sent by the Department to Me Massé to advise him that his clients" application had been granted.

[143]    The documents introduced into evidence by the Minister show that, commencing June 1955, a number of persons applied to the Department of Immigration to amend their landing records so as to allow them to revert to their true names. In a memorandum dated June 13, 1955 from the Chief, Admissions Division, to the Director of the Department, the following information appears:

        Cases such as above where the persons are simply reverting to their correct name, should not be confused with the change of name which requires court action and the aid of a lawyer.

[144]    In June 1955, the Chief, Administration Division, sent a similar memorandum to the Chiefs of Divisions and Heads of Sections. In July 1955, a similar memorandum was sent to the District Superintendents. As appears from the memorandum of June 13, 1955, field officers were not to invoke Section 19 of the Immigration Act, 1927 unless they could "definitely" establish that the applicant had changed his name "for the purpose of gaining illegal entry". I must therefore conclude that Mr. Katriuk's application was granted because there was no evidence that he had changed his name for an improper or illegal purpose.

[145]    Why did Mr. Katriuk state in his application that he had taken refuge in France in 1944? [Because it was the truth.] There is no evidence that he was asked any questions in respect of his 1957 application. Mr. Katriuk is the one who approached the Department of Immigration for the purpose of correcting his visa application file. In my view, he provided that information because he believed it was necessary for him to explain how he had arrived in France in 1944. [As stated earlier, Mr. and Mrs. Katriuk could easily have retained the name Schpirka the rest of their lives.] In my view, he was of that belief because, in all likelihood, that question had been asked of him in France in 1951. [Mr. Katriuk was certainly not "of that belief".] The questionnaire proposed to be attached to the revised O.S.8 form by Mr. Cormier contains a question which requires an applicant, not born in France, to state when and where he entered France. [There is no evidence whatsoever, that such a questionnaire was ever utilized.] That question appears below the question concerning his residences and employments since 1939. Although I am unable to find that the question relating to Mr. Katriuk's activities since 1939 did appear in the form which Mr. Katriuk signed or that that question was asked to Mr. Katriuk, I am prepared to find, and I do so find, that Mr. Katriuk must have been asked in France to indicate when and where he entered France. [This is pure speculation by Judge Nadon. We submit that even if the question had been asked, Mr. Katriuk could have replied truthfully (except for the name change) and the employee who filled out the forms for Mr. and Mrs. Katriuk would still have approved their application.] That is why, in my view, he provided that information in his affidavit of October 1957. [That is simply not true.] In any event, even if Mr. Katriuk was not asked such a question in 1951, that information was furnished to the Department of Immigration with a view of convincing the authorities that he had not entered Canada under a false name for an improper or illegal purpose. [It is abhorrent of Judge Nadon to suggest that Mr. and Mrs. Katriuk entered Canada for an improper or illegal purpose. They simply wanted to live in Canada and become good citizens.] Consequently, that information was, in my view, relevant and material to the decision which the Department took. If Mr. Katriuk had not concealed that he had arrived in France in August 1944 as a member of the merged battalion and his subsequent defection to the French underground, the likelihood is that the Department, in view of the applicable rejection criteria prescribed by the Government, would have, at the very least, investigated Mr. Katriuk through the available channels. [This is all speculation. There is no evidence that Mr. Katriuk deliberately concealed anything material from his lawyer or in the affidavit prepared by his lawyer.] As a result of this investigation, the Department would have then been in a position to decide whether Mr. Katriuk fell under an excluded category of immigrants. Whether or not the decision would have been favourable to Mr. Katriuk is not, in my view, relevant. [Judge Nadon's views are incredible!] In saying this, I am prepared to recognize that there was a possibility that an immigration officer could have decided to admit Mr. Katriuk to Canada. The evidence has shown that the Security Officers were vested with some discretion in making their decisions regarding the admission of collaborators. A number of documents support this point of view. In his February 9, 1949 memorandum to the Commissioner, the Associate Commissioner of Immigration, Overseas Service, states that "[a]ccording to instructions, if the proposed immigrant has been forced to serve the enemy forces and could obtain evidence to that effect he was then admissible". To the same effect is the memorandum sent by the Secretary of the Security Panel to the Panel dated April 30, 1952, where the Secretary states, at paragraph 10, that: "[p]resent immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits".
{145} [In our view, no matter what the circumstances proposed by Judge Nadon, the ruling of the immigration authorities would have been favorable to Mr. and Mrs. Katriuk.]

[146]    The decision of the Supreme Court of Canada in Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, stands, in my view, for the proposition that, even if the department"s investigation had not led to the rejection of Mr. Katriuk, the circumstances concealed by Mr. Katriuk are nonetheless material.



{150} [As stated above, there is no evidence whatsoever that the employee who filled out Mr. and Mrs. Katriuk's immigration form asked these questions. Participation in the Second World War was not a "job". Testimony by ex-immigrants at the Deschenes Commission to the effect that they were not asked about their wartime activities was found by the Commission to be credible. The least Judge Nadon could do would be to interview the thousands of people who passed through the Paris immigration turnstiles during the 1950s to ascertain a more realistic "version of these events".]


{151} [On page 224 of the Deschenes Commission Report, finding #43 states: "The existence of a presumption of fact that a former immigrant, if a war criminal, must have lied for purposes either of immigration or of citizenship, cannot be taken generally for granted, in light of the conflicting evidence before the Commission. It must be left to the courts to decide whether, in any given case, such a presumption has been established with a high degree of probability."

Despite the Verdict of Judge Nadon, any fair-minded person must conclude that Judge Nadon and Anne McLellan failed miserably in satisfying this criterion.

We also note that Judge Nadon uses almost the exact terminology of Mr. Amerasinghe (now chief prosecutor of the Canadian War Crimes Unit) in his 1983 proposals to utilize denaturalization and deportation as was being used by the Office of Special Investigations in the United States. (ibid. pp. 215-216)]


[Who was Michael Jankowsky?]



__________________

3.7 FOOTNOTES

¹ Paragraph 10(1)(b) is also, in my view, relevant.

² Page 78 of the transcript of Mr. Khrenov"s cross-examination of March 30, 1998.

³ By "Schuma", Professor Golczewski means "militia".

{f3} [We strenuously object to the creation and use of a term suitable only for grade B Hollywood movies by Golczewski, Messerschmidt and even Judge Nadon, himself. The proper terminology in German is Schutzmannschaft (singular) or Schutzmannschaften (plural). In the text above, we have changed to the appropriate English term Militia.]

⁴ 4.    The Soviet occupation with its reprisals and executions, lasted until such time as Germany invaded the newly created regions of the Soviet Union in June of 1941 and shortly thereafter arrived in Bukovina together with its allied forces of Hungarians and Romanians.
5. Mr. Katriuk, as did many of his contemporaries and compatriots, anticipated the possibility of having Ukraine as an independent state, because of the rapid collapse of Soviet authority in retreat.
6.     Mr. Katriuk therefore joined a volunteer force which was intended to provide law and order in the territories being fled by the Soviet forces (who exacted fearful repressions and executions as they retreated), and eventually to provide the basis of a Ukrainian force which would allow Ukraine to maintain sovereignty as independent of both the Soviet Union and Nazi Germany.
7.     Mr. Katriuk, with his colleagues, for this reason set out for the capital of Ukraine, Kyiv, on a three month trek, which was interrupted as to entry in Kyiv because of Kyiv having been mined by the retreating Soviet forces so that Mr. Katriuk and his colleagues arrived in Kyiv only as of November of December of 1941.
8.     Once arrived in Kyiv and being stationed in some barracks that had previously been occupied by Soviet internal security, the command of his group unfurled a Ukrainian flag with the national symbol of a trident, which had been savagely repressed and prohibited by the Soviet authorities.

⁵ 8.     Once arrived in Kyiv and being stationed in some barracks that had previously been occupied by Soviet internal security, the command of his group unfurled a Ukrainian flag with the national symbol of a trident, which had been savagely repressed and prohibited by the Soviet authorities.
9.     The Germans acted in exactly similar fashion as the Soviet by confiscating all such would be national symbols, arresting the command of any such Ukrainian unit, and executing the chief officers in order to make clear that no such national manifestations would be tolerated.

⁶10.     Instead the Germans proceeded to create a force to assist them in maintaining law and order and to have guard duties, numbering such force the 115^th Battalion. Service in such Battalion was indicated to Mr. Katriuk and his colleagues as the only alternative to deportation as slave labour to the Nazi Reich.

⁷ Pages 69 and 70 of the transcript of Mr. Khrenov"s cross-examination of March 30, 1998

⁸ For a complete and detailed review of Canada"s immigration policy, see the judgment of Noël J. in Canada (Minister of Citizenship and Immigration) v. Dueck, (21 December 1998), Ottawa: F.C.T.D., T-938-95 [unreported], at pages 67 to 73. At pages 73 to 87, Noël J. reviews in detail Canada"s policy regarding the security screening of immigrants. See also pages 17 to 21 (paragraphs 61 to 77) of McKeown J."s decision in Canada (Minister of Citizenship and Immigration) v. Bogutin, (1998), 144 F.T.R. 1.

⁹ See P.C. 695, 21 March 1931. The relevant portion of the Order in Council reads as follows:
The Immigration Officer-in-Charge may permit to land in Canada any immigrant who otherwise complies with the provisions of the Immigration Act, if it shown to his satisfaction that such immigrant is: -
A British subject entering Canada directly or indirectly from Great Britain or Northern Ireland, the Irish Free Sate, Newfoundland, the United States of America, New Zealand, Australia, or the Union of South Africa, who has sufficient means to maintain himself until employment is secured: Provided that the only persons admissible under the authority of this clause are British subjects by reason of birth or naturalization in Canada, Great Britain or Northern Ireland, the Irish Free Sate, Newfoundland, New Zealand, Australia, or the Union of South Africa.
A United States citizen entering Canada from the United States who has sufficient means to maintain himself until employment is secured.
The wife or unmarried child under 18 years of age of any person legally admitted to and resident in Canada who is in a position to receive and care for his dependents.
The father or mother, the unmarried son or daughter eighteen years of age for [sic] over, the unmarried brother of sister, the orphan nephew or niece under sixteen years of age, of any person legally admitted to and resident in Canada, who is in a position to receive and care for such relatives. The term "orphan" used in this clause means a child bereaved of both parents.
An agriculturist having sufficient means to farm in Canada.
The fiancee of any adult male legally admitted to and resident in Canada who is in a position to receive, marry and care for his intended wife.
A person who, having entered Canada as a non-immigrant, enlisted in the Canadian Armed Forces and, having served in such Forces, has been honourably discharged therefrom.

¹⁰ P.C. 6687, October 26, 1945

¹¹ At page 915 of volume II (2^nd ed.) of the Canadian Encyclopedia, the following entry appears under the name of Gouzeko, Igor Sergeievich:
Gouzenko, Igor Sergeievich, intelligence officer, author (b at Rogachov, USSR 13 Jan 1919; d near Toronto late June 1982). At the beginning of WWII Gouzenko took intelligence training and in 1943 was appointed cipher clerk at the Soviet legation in Ottawa, where he learned that Soviet intelligence operated several spy networks in Canada. Disenchanted with Soviet life and politics, he decided to defect when he learned in 1945 that he and his family were to be sent home. On Sept 5 Gouzenko left the embassy with documents illustrating Soviet espionage activities. Initially, no one in Ottawa took him seriously; only on Sept 7, following an abortive Soviet attempt to recapture him, were he and his family given protective custody. When it became evident that a widespread espionage network was operating, Mackenzie King"s government authorized the arrest of 12 suspects. After interrogation, they were brought before a royal commission. Gouzenko"s testimony and documents impressed the commissioners, who confirmed in July 1946 that a spy ring had been operating in Canada, aimed at, among other things, the secrets of the atomic bomb. A number of suspects were subsequently convicted and imprisoned.                                    Gouzenko was given a new identity, and for the rest of his life he and his family had police protection. He produced a memoir, This Was My Choice (1948), and a novel, The Fall of a Titan, which received the Gov Gen"s Award (1954). From time to time he emerged from the shadows, always wearing a protective mask, which for most Canadians became his trademark. Even his death apparently from natural causes, was surrounded in secrecy.

¹² At that time, Colonel L. Fortier was the associate Commissioner, Overseas Service, Immigration Branch.

¹³ Expert witness Nicholas D"Ombrain, called by the Minister, explained in his affidavit dated July 31, 1997, Cabinet Directives as follows:
22.     As has been seen, Cabinet documents were treated with very great secrecy, as is still largely the case today. As has also been noted, the role of the Cabinet, although vital to the smooth functioning of government, is essentially informal. The early years of the Cabinet Secretariat were necessarily experimental. One such experiment was the creation of a new class of documents, known as "Cabinet Directives". These were administrative instructions of general application, whose utility lay in their widespread distribution throughout the Public Service. They dealt with subjects such as instructions on the drafting of legislation, security clearance standards and procedures for government employees, the granting of special holiday leaves for occasions such as royal visits, and rules for flying the Canadian flag.
23.     Cabinet Directives are not to be confused with Records of Cabinet Decision, Cabinet Conclusions or Decision Letters. They are essentially public documents, widely available and not, for example, covered by the exceptions set out in Section 69 of the Access to Information Act dealing with Cabinet confidences. In the 57 years since the creation of the Cabinet Secretariat, there have been fewer than 50 Cabinet Directives. This contrasts with the production of approximately 300 memoranda to Cabinet in a typical year.
24.     It should be noted that the term Cabinet Directive is frequently used in a rather loose and imprecise way to refer to Cabinet Decisions. I have noted this in some of the documents that I have reviewed for this affidavit.

¹⁴ There is no evidence as to whether Major Wright"s recommendation that an additional security officer be posted in Paris was ever followed up.

¹⁵ "Stage B", as we will see later, was the process by which the security officer screened a perspective immigrant.

¹⁶ Laval Fortier was the Deputy Minister, Department of Citizenship and Immigration.

¹⁷ This appears in the minutes of a meeting of the Security Panel dated May 21, 1952 relating the discussions which took place on May 15, 1952.

¹⁸ Attached as an exhibit to form part of the C.G.R. form is a typewritten documentn reproducing the manual entries which appear in the C.G.R. form. At the end of Column 7 of Line 22, the maker of the typewritten entries has indicated that Nicholas Schpirka was born in Mamaieski, Ukraina. However, I read the manual entry as possibly indicating the place of birth as being Mamaiesti. There appears to have been a village of the name Mamaiesti Vechi situated thirteen kilometres west north west of Chernovtsy. This village is apparently now named Altmamayeshti. The village of Luzhany, where Mr. Katriuk was born, appears to also be situated thirteen kilometres west north west of Chernovtsy. (See Where Once we Walked: A Guide to the Jewish Communities Destroyed in the Holocaust. By Gary Mokotoff ]Avotayu, Inc. 1991]).

{f18} [We are disturbed by this footnote because it may indicate that Judge Nadon was unduly influenced by the Holocaust Industry in arriving at his verdict in this case. Was this book submitted as evidence by the prosecution during the trial proceedings? Or was it given to him after the trial, when he was deliberating upon and writing his verdict?]

¹⁹ Immigration Act, R.S. 1952, c. 325 (the "Immigration Act, 1952"). Section 19(1)(e )(viii) reads as follows:
19. (1) Where he has knowledge thereof, the clerk or secretary of a municipality in Canada in which a person hereinafter described resides or may be, an immigration officer or a constable or other peace officer shall send a written report to the Director, with full particulars concerning    ...(e) any person, other than a Canadian citizen or a person with Canadian domicile, who    ...(viii) came into Canada or remains therein with a false or improperly issued passport, visa, medical certificate or other document pertaining to his admission or by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person,