Date: 20010831
Docket: T-2701-97
Neutral citation: 2001 FCT 970
IN THE MATTER OF revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER OF a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29;
AND IN THE MATTER OF a reference to the Court pursuant to Rule 920 of the Federal Court Rules
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MICHAEL BAUMGARTNER
Respondent
Introduction:
[1] The Respondent, Mr. Baumgartner, voluntarily joined the Waffen S.S. in March 1942 in Hungary. Mr. Baumgartner is of German descent but was born in Romania, and such a person is also sometimes described as Schwaben or Volksdeutsch. He arrived in Vienna as an S.S. recruit and went through postings with an S.S. calvary replacement battalion and then to Stutthof concentration camp. He was transferred to Sachsenhausen concentration camp and thence to driver's training at Appledoorn. After leaving Appledoorn, he apparently joined the Panzer Regiment Funf Wiking. He eventually ended up in a U. S. prisoner of war camp at Regensburg and obtained a discharge certificate on September 6, 1946. Following his discharge from POW camp he sought admission to an I.R.O. camp and did not disclose his Waffen S.S. background. He admitted he lied in respect of his application there, but he also made the same statements with respect to his residence application in Coburg, Germany. After failing to gain entry into the United States, he applied to Canadian immigration in 1953 and arrived in Canada on May 31, 1953. Mr. Baumgartner applied for and received Canadian Citizenship on October 16, 1959.
[2] The Minister of Citizenship and Immigration (the Minister) notified Mr. Baumgartner on September 24, 1997, pursuant to paragraph 18.1(a) of the Citizenship Act (the Act), that she intended to make a report to the Governor-in-Council pursuant to paragraph 10(1)(c) of the Act for revocation of his citizenship on the ground that he had been admitted to Canada for permanent residence and had obtained Canadian Citizenship "by false representations or fraud or by knowingly concealing material circumstances, in that [he] failed to divulge to Canadian immigration and citizenship officials [his] service during the Second World War in the Waffen S.S., and [his] collaboration and service with German authorities while engaged in activities connected with forced labour and concentration camps during the period 1942-1943, and in particular, [his] service as a guard at the Stutthof Concentration Camp in German occupied Poland, and later at the Sachsenhausen Concentration Camp, in Germany."
[3] Pursuant to paragraph 18(1)(b), the Defendant, Mr. Baumgartner, requested the Minister to refer the case to the Court for a hearing, and on December 15, 1997, the Minister referred the case to the Court.
[4] Mr. Baumgartner denied that he made misrepresentations to Canadian authorities. He denied that he voluntarily joined the Waffen S.S. and insisted he was coerced into joining. He further denied being in the calvary battalion and the Stutthof and Sachsenhausen concentration camps.
[5] I must decide whether Mr. Baumgartner has obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Pursuant to the provisions of ss. 10(2) of the Act, Mr. Baumgartner is deemed to have acquired his citizenship by false representation or fraud or by knowingly concealing material circumstances if he was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and has subsequently obtained his citizenship as a result of that admission to Canada.
[6] The central issue in this application is whether Mr. Baumgartner voluntarily enlisted in the Waffen S.S. in Hungary in 1942 or served as a guard in concentration camps at Stutthof or Sachsenhausen during part of World War II. The other issues relate to the process of his application to be admitted to Canada and the actual process of landing and in particular, would he have been interviewed and asked to disclose his World War II military service to Canadian immigration or security officials and what rejection criteria concerning prospective immigrants were in use in Munich on March 11, 1953 and in the period following to the date of landing on May 31, 1953. The credibility of Mr. Baumgartner must be determined with regard to each of these issues.
Burden of Proof:
[7] Before beginning my assessment of the factual issues, the determination of one legal issue must be made: what is the correct standard of proof in these proceedings. The Defendant submits that this Court should assess the case on an enhanced civil standard of proof. In MCI v. Bogutin (1998), 144 F.T.R. 1 (F.C.T.D.), I held that in citizenship revocation matters, the Court must apply the civil standard of proof (proof on a balance of probabilities), but it must scrutinize the evidence with greater care due to the serious allegations to be established by the proof that is offered. The Defendant's counsel submits, however, that the Court should reconsider the matter in light of the Supreme Court of Canada's decision in R. v. Oakes, [1986] 1 S.C.R. 103 (S.C.C.). In Bogutin, supra I found that the Court was bound by the decisions of the Supreme Court of Canada in three cases, including the seminal case of Continental Insurance v. Dalton, [1982] 1 S.C.R. 164 (S.C.C.). I determined that it was not open to me to assess that case on a 'high degree of probability' standard, as was urged by the Defendant.
[8] In the case at bar, the Defendant submits that the decision in Oakes, supra overruled the holding in Continental Insurance, supra to the effect that a third standard of proof exists. The Defendant further submits that this third standard should be applied to the present matter. However, I do not accept the submissions of the Defendant on this point. The Oakes case was a Charter case. The Charter is not invoked in the present matter. In Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 at 175, the Federal Court of Appeal held that at the time of Collier J.'s decision in that case, section 7 of the Charter was not engaged and that the Defendant did not suffer deprivation of his "life, liberty and security of the person." The Court in these proceedings merely makes a finding of fact and reports to the Minister of Citizenship and Immigration. The Governor-in-Council is not compelled to revoke the Defendant's citizenship. While Charter rights may be engaged after citizenship is revoked, none are engaged at this stage in the process. As such, I cannot agree that Continental Insurance, supra was overruled by Oakes, supra for the purposes of citizenship revocation matters. The holding in Bogutin, supra stands and the applicable standard of proof in the present case is that of proof on a balance of probabilities, involving greater care in scrutinizing the evidence before the Court.
Historical Facts and Context:
[9] Dr. Johannes Tuchel was qualified as an expert witness to testify in regard to the Nazi terror apparatus from 1933-1945, including general information about concentration camps and more specifically about Sachsenhausen and Stutthof, the two concentration camps in which the Minister alleged that the Defendant served as a guard during the second world war. Dr. Tuchel was also qualified to testify about the ideological training and duties of concentration camp guards; the origins and evolution of the Waffen S.S.; the recruitment of Volksdeutsche for the Waffen S.S., particularly in Hungary in 1942; the evolution of the S.S. Division "Wiking" and its participation in major battles on the Eastern Front from 1940 to May 1945; and the authentication of Nazi period documents. For clarity, Dr. Tuchel's expertise does not extend to handwriting analysis or to analysis of the physical properties of paper and ink. In order to place the issues in this hearing in context, it is necessary to review the history of concentration camps and their role in the Nazi Regime.
The Establishment of the Nazi Terror Regime
Purpose and Administration of Concentration Camps
[10] Dr. Tuchel described the nature of the concentration camp system established by the Nazis prior to and during World War II. I note that he used the term "concentration camp" to connote only those camps under the administration of the Inspectorate of Concentration Camps or Group D of the S.S. Main Economic Administration, and not more generally the mass extermination or slave labour camps within the Nazi terror regime during World War II.
[11] The first concentration camps were created in March, 1933 and imprisonment in such camps was made possible by Von Hindenburg's "Reich President's Decree for the Protection of the Nation and the State", which effectively terminated civil rights in Germany and authorized the Nazi government to transfer individuals into concentration camps without following any recognized legal procedures.
[12] The original purposes of the concentration camps were to repress political enemies and to prevent the emergence of new political opposition to the Nazi regime. From 1936 onward, the camps were increasingly used for the racist persecution of the Jews. Later on in the war, some concentration camps came to be used for mass extermination. As such, the functions of the concentration camps evolved in stages. During the first stage (1933 to 1936), concentration camps were erected for the purpose of suppressing political enemies of the Nazis. From 1936 until 1939, these camps were also used for forced labour, first in service of the S.S. and later in service of the German armament industry. During the third stage (1939 to May 1945), concentration camps served as a tool to suppress people from all the occupied territories deemed to be enemies of the Nazis.
Restriction of Civil Rights for Inmates
[13] In 1935, there was a movement within the German Department of Justice to abolish the concentration camp system and squelch political opposition through the regular prison system. However this movement failed, and over the course of that year the judiciary lost its remaining jurisdiction over the camps; Hitler denied inmates of concentration camps access to legal representation; and the Third Reich foreclosed any possibility of investigating killings which occurred in the concentration camps. The movement toward restricting civil rights was also indicated by the 1934 transfer of administrative responsibility for concentration camps from the local and regional police to Himmler's S.S. Concentration camps became one of the most important instruments of internal security for the Nazi dictatorship.
Expansion of the Concentration Camp System
[14] Over time the prisoner population grew and new concentration camps were built from 1939 to 1941. In 1939, a concentration camp was established in Stutthof, near Danzig. Initially under the control of the Danzig S.S., it was later taken over by the Concentration Camps Inspectorate. The main concentration camps in operation during wartime included Dachau, Buchenwald, Ravensbrück, Sachsenhausen, Flossenbürg and Mauthausen.
Killings in Concentration Camps
[15] Auschwitz was established in 1940, while Lublin-Majdanek was built in 1941. Each camp had a dual function: they were concentration camps and mass extermination camps. In Auschwitz, between 1941 and 1944, at least 1,000,000 Jews were gassed to death. Those gassed had not been registered as camp inmates. A large number of Jews were also gassed at Lublin.
[16] Prior to the war, killings in concentration camps were covered up as executions of attempted escapees. During the war, concentration camp inmates were executed by order of Himmler as head of the Gestapo, for refusal to work for the war effort. Soviet prisoners of war who were deemed to be "political commissars" were routinely killed and the officers who carried out these killings were rewarded with holidays and bonus pay. Those to be executed were ordered to attend a medical exam in which they were instructed to stand at a height scale, at which point they would be shot by an S.S. officer through a hole in the wall above the scale.
[17] From 1939 until the end of the war, mentally ill, elderly and handicapped people were killed, as they were considered "useless mouths to feed".[1] By the spring and summer of 1941, doctors were performing these selections at concentration camps as well. The code "14F13" referred to the killing of ill prisoners by gassing in concentration camps in Germany. According to Dr. Tuchel, in 1941-42, at least 15,000 people, but probably up to 20,000, were murdered in the course of operation "14F13".
[18] Dr. Tuchel testified that according to a very conservative estimation, there were overall more than 2,000,000 inmates recorded in concentration camps. Of those 2,000,000, 1.2 million died in concentration camps between 1943 and 1945. This death toll does not include the Nazis' mass extermination program carried out at Auschwitz-Birkenau, Lublin, and other camps. In conclusion, by a very conservative estimate, more than 50% of those incarcerated in concentration camps died. Accordingly, anyone situated in a concentration camp during World War II would have seen people dying around him or her on a daily basis.
Living Conditions in Concentration Camps
[19] Dr. Tuchel described the concentration camps as "one of the worst places you can be in as a human being in the 20th century".[2] Those entering had less than a 50% chance of survival, and the official records show that this was intended by the Nazi authorities.
[20] An inmate's living conditions depended upon his or her status. Each concentration camp had an internal hierarchy, with Germans coming first, followed by Western Europeans, Slovaks, Jews and Gypsies.
[21] Dr. Tuchel referred to constant problems with the sanitation and living conditions of concentration camp inmates. Poor sanitary conditions lead to the spread of epidemics at the concentration camps. Overcrowding was also a problem, as many camps came to house over twice the inmate population that they had been built to house. Many camps were located in harsh climates that made life more miserable for inmates.
[22] Inmates often went hungry because their basic provisions were often stolen before they reached the inmates. Much of the meat fed to inmates was rotten. As of 1942, inmates were served only a water-based soup with very few potatoes and no meat, and bread baked from waste flour. Also as of 1942, pursuant to official orders, sawdust was included as an ingredient for bread. Most camp inmates weighed less than 50 kilograms and by the end of the war, a man measuring 1.80 metres would weigh under 40 kilograms.
[23] In forced labour camps, people in this weakened condition were expected to work, and if their work was deemed inadequate, they were beaten by fellow prisoners who acted as foremen, and who sometimes enjoyed better living conditions than the other prisoners. According to S.S. regulations, an inmate worked a minimum of 11 hours, but Dr. Tuchel testified that most concentration camps had a 12 or 13 hour work day. Dr. Tuchel cited the Chief of the S.S. Economic Administration Main Office Pohl's April 30, 1942 letter to Himmler, wherein Pohl stated that the inmate deployment for forced labour should be "exhausting in the strictest sense of the word, to achieve maximum performance ... The working time is not subject to any limitations." Himmler's handwritten note on this communication reads "agreed"[3].
[24] In 1942, after the invasion of Russia in 1941 and the failure of the blitzkrieg, the Nazi war machine was in need of additional and higher quality armaments, and concentration camps were given the added function of increasing productivity for the German Wehrmacht. The new role assigned to concentration camps is reflected in a letter from Gluecks, Head of the Department of Concentration Camps, S.S. Main Economic Administration Office, dated January 20, 1943, at Oranienberg, marked Secret and Personal. It stated the need to lower the death rate of prisoners in concentration camps, stating that these individuals should work in the camps until they collapsed, that is, "exhausting every possibility to preserve the prisoner's capacity for work"[4]. Dr. Tuchel noted this goal was not achieved, as even when there was a decline in the death rate for a short period, it was followed by an increase. In July and August, 1942, 8,329 and 12,000 inmates died, respectively. In 1943, the recorded inmate deaths per month were 9,000; 11,000; 12,000; and 8,000. Furthermore, according to Dr. Tuchel, the documents setting out these figures were initialled by Himmler, which shows that the S.S. leaders knew of the atrocities committed at concentration camps.
[25] Dr. Tuchel testified that there were four kinds of violence in concentration camps. The terrible living conditions constituted one type of violence, often resulting in death. There was also the violence inflicted on the prisoners by S.S. men, officers and NCOs. Third, there was the violence inflicted on inmates by their own fellow prisoners, by order of the S.S. men who commanded the prisoners to kill, on pain of being killed themselves. Fourth, there was the violence inflicted by guards who, during the war, fulfilled the function of guarding inmates while they were working. Although the official regulations of the S.S. forbade guards from beating inmates, this was easily circumvented by ordering certain of the inmates to beat other inmates. Moreover, there were numerous cases in which guards themselves beat inmates, contrary to the official regulations. Such infractions were easily covered up, since guards were ordered to shoot any prisoner who tried to attack a guard or to escape. It was specified that they were not merely to beat those who attempted to escape, but actually to shoot them. In some concentration camps, if a guard shot and killed a prisoner, he got a furlough or a medal in reward.
[26] Dr. Tuchel cited the "Camp Procedure Regulations" as the most important instrument of violence against the inmates. These regulations had been developed by Eicke in Dachau and were introduced at all camps in the summer of 1934, with a few minor local exceptions. They provided that:
These regulations remained in effect until the end of the war.
Stutthof Concentration Camp
[27] Stutthof concentration camp was located near Danzig, Poland just outside the small village of Stutthof. Stutthof was initially the site of a prisoner of war camp, but officially became a concentration camp in late 1941 in order to house the growing number of Soviet prisoners of war and use these prisoners to perform forced labour. This was closely related to the S.S. decision to use Soviet prisoners of war for forced labour in concentration camps. Jews were also interned at the camp until November, 1942 when Himmler ordered all Jews to be sent to Auschwitz.
[28] The camp was surrounded by water or bogs and covered from approximately 50 to 100 hectares of land. Prisoners were transported to Stutthof by a small-guage railway from Danzig. Inmates worked in Stutthof's factories which were mainly involved in brick production. After 1943-44, Stutthof began using inmate labour to support the German armament industry.
[29] The overall death rate at Stutthof was similar to those in other concentration camps. Of the 110,000 recorded inmates at the camp, at least 65,000 did not survive. The living conditions were as bad as at other concentration camps. Because it was surrounded by swamps, the spread of epidemics was particularly problematic.
[30] The conduct of guards was set out in a Stutthof Concentration Camp document entitled "Special Regulations for Escorting Prisoners" and dated September 7, 1942. These guidelines were essentially consistent for all concentration camps with only minor modifications to reflect local characteristics. Having regard to the guidelines themselves, there was a considerable difference between a regulation and the actual conduct of the guards. Dr. Tuchel cited as an example that the special regulations state that "[a]ny maltreatment and threatening of prisoners is strictly prohibited ". However, as Dr. Tuchel testified, this regulation was not followed. He also pointed to the section providing that "physical assault by prisoners is to be cut off not with physical force, but using one's firearm". According to Dr. Tuchel, when a guard felt threatened, he could and indeed had to shoot. Guards were taught to obey, and obey without thinking. As occurred at every other concentration camp, guards at Stutthof were given regular ideological education.
Sachsenhausen Concentration Camp
[31] In 1936, the Nazis planned to build modern-style concentration camps and Sachsenhausen was the first example of this plan. It was situated in a forested area near Oranienberg, north of Berlin. The camp was shaped as a triangle, the sides of which each measured approximately 680 metres long. In mid-1936 there were around 2,000 inmates. By the end of 1941 there were over 10,000 inmates. By January 1943 there were over 20,000 inmates. By the end of the war there were over 47,000 inmates.
[32] Dr. Tuchel described certain killing operations carried out at Sachsenhausen. There was a crematorium used for the huge mass killings of over 10,000 Soviet prisoners of war. At the end of May and beginning of June 1942, over 100 Jewish inmates at Sachsenhausen were killed by the S.S. in retaliation for the killing of S.S. Lieutenant General (Obengruppenführer) Reinhard Heydrich who had been killed by an association of Czech resistance fighters in Prague. In the summer of 1942, a group of mainly homosexual inmates were deliberately chased across the sentry line and allegedly "shot while escaping".
[33] The living conditions at Sachsenhausen were as bad as those in the other concentration camps generally. Between 1942 and 1944, Sachsenhausen had over 100 satellite camps in which prisoners were made to do forced labour. Of the 204,000 recorded inmates at the camp, 100,000 did not survive.
Formation of Guard Units in Concentration Camps
[34] In mid 1935 there were less than 5,000 inmates in concentration camps in Germany and around 2,000 male guards. In 1934, the S.S. was comprised of three groups: the general S.S., the guard or Death's Head units and the S.S. armed forces, which would later be known as the Waffen S.S. Originally, the Death's Head guards were young, well-trained soldiers, but the composition of the guard changed with the beginning of the war. In 1939, with the invasion of Poland, such guards were transferred to the Army and older members of the S.S. became concentration camp guards.
[35] In 1939, there were around 21,000 concentration camp inmates and 2,000 concentration camp guards. At that point, there were three Death's Head units: the S.S. Death's Head Division, a combat unit of the Waffen S.S.; the S.S. Death's Head Regiment, a unit established by special order of Himmler in 1939 specifically for combat in Poland; and the S.S. Death's Head Police Reinforcements, the guard units stationed in the concentration camps. These latter units were later renamed the S.S. Death's Head Battalion.
[36] In 1941, in addition to the older S.S. members who had become concentration camp guards two years earlier, German World War I veterans joined the guard units in concentration camps. In late 1941, ethnic Germans also became concentration camp guards. By October, 1943, of the 15,000 male concentration camp guards, 7,000 or over 40% were ethnic Germans or Volksdeutsche, and over 3,000 were from Romania. In January, 1945, there were over 37,000 male guards in concentration camps and over 3,000 female guards to take care of the increase in concentration camp inmates.
Background and Involvement of Michael Baumgartner in World War II
The Early Life of Michael Baumgartner
[37] The Defendant, Michael Baumgartner, was born on August 22, 1923 in Secunda, Romania. He was raised as a Roman Catholic. Secunda was a small farming town with a population of 700. There was no electricity, no water system and there were no paved roads. The town was situated near the Carpathian mountains. Mr. Baumgartner's father emigrated to the United States in 1925, when Mr. Baumgartner was two years old. Mr. Baumgartner's mother died in 1939, and he was raised by his grandmother from that time on. His sister Maria suffered from polio and was unable to work. His family had immigrated to Secunda in the 19th century from an area called the Schwaben, near Stuttgart. He referred to ethnic Germans outside of Germany as Schwaben. He testified that he spoke German and Hungarian as well as Romanian, which he had learned in school. He attended classes up to the eighth grade. Secunda was a relatively isolated village, as there were no paved roads in or out of the village. There were no motor vehicles and horse and carriage was the mode of transportation. There were no newspapers and, since there was no electricity, there were no radios except for one battery-operated radio which belonged to the local teacher. The nearest market was in Sathmar, about thirty kilometres from Secunda. Mr. Baumgartner went there about two or three times a year.
[38] Mr. Baumgartner first learned of the war from his teacher. He testified that he had very little notion of what war meant and that he and the other children would ask the community elders for information. No one in Mr. Baumgartner's family had fought in World War I. In 1940, Romania turned over Secunda to Hungarian rule. Mr. Baumgartner started to work on the family farm when he was still at school. The family farm consisted of approximately 50 to 75 acres, and produced wheat and corn that was farmed by crop share arrangement. The farm had been purchased with money sent by Mr. Baumgartner's father from the United States. When Mr. Baumgartner's mother died in 1939, the farm was left to him and his sister. He planned to make his living as a farmer so that he could support his sister, as well as himself.
Was Mr. Baumgartner a Volunteer in the S.S. or was he Conscripted?
[39] I now come to a very important issue in the case, and that is whether Mr. Baumgartner voluntarily enlisted in the Waffen S.S. or was he conscripted into military service.
[40] Mr. Baumgartner stated that he had been in the Levente, which was a reserve military force, from the age of 14 or 15, first for the Romanian government and then for the Hungarian government once it took over Secunda from Romania in 1940. Members of the reserve army were called Leventari.
[41] I do not find Mr. Baumgartner's description of his coercion into the S.S. to be credible. Mr. Baumgartner stated that until 1942 he knew nothing about Germany nor Adolf Hitler nor Nazi ideology. According to Mr. Baumgartner, Hungary had an agreement with the Germans with regard to the drafting of men for the German army and he stated that this was the only change resulting from the shift from Romanian to Hungarian rule. He testified that the German S.S. officers came to Secunda in November, 1941. He stated that the S.S. officers spoke to both the town's children and the boys' parents. He stated he did not understand what was happening since he was only around 17 years old at the time. He stated the parents and guardians of the young people said they would not send their children to fight for Germany.
[42] The German soldiers returned to Secunda in 1941 just before Christmas, and this time Mr. Baumgartner stated that they had "papers from the Hungarian government that they are entitled to take all the German descent, the Schwabiens in the army"[5]. Mr. Baumgartner testified he did not understand the meaning of these papers. He testified that the parents objected to their sons being made to fight for Germany, and he also recalled that he himself did not want to go because he knew that his sister needed him and he was needed to farm the family's land.
[43] The German soldiers "went away and then later on they came again with some trucks or whatever because they went to the neighbours' villages. They did all the same thing all over. And they came back and they said well, we have the order from Germany from Deutzland (sic), you have to go and then they gave us a few days to get ready."[6] The boys were told to pack warm clothes and to bring the birth certificates of their parents and grandparents. They were also told to have their priest fill out some forms. The form filled out by Mr. Baumgartner's priest was a composite birth certificate going back to his grandparents, documenting the birth of Mr. Baumgartner and the births and marriages of his parents and grandparents. Mr. Baumgartner identified his own signature and the document. Such documents were required by the S.S. in order to confirm the 'ethnic purity' of potential S.S. recruits.
[44] Mr. Baumgartner testified that did not want to go with the Germans when they returned, but he had to go. He stated he was required to go because of the Hungarian agreement with Germany which provided that in exchange for having their land returned, the Hungarian government would allow Germany to take their young boys into the army. He stated there was nowhere to escape from the German recruiters, as they had stationed themselves all over the countryside. He also felt that he had to go because the village elders did in fact say they agreed to the recruitment of their boys into the German army. Mr. Baumgartner recalled discussing this with his guardian and specifically stating that he did not want to go and leave his sister and grandmother who needed him to work on the farm. However, he recalled that the elders said that there was nothing they could do about the situation and the boys would have to join the German army.
[45] Mr. Baumgartner recalled that approximately four German officers returned to Secunda with a few other soldiers, possibly drivers. The soldiers wore grey uniforms with the S.S. symbol on their collars, as well as caps. He did not recall them carrying guns, speculating that they might have been on the truck. He recalled undergoing a registration procedure in which the German officers took his name, the names of his parents, his birth place and birth date, and compared this data to that on his birth certificate. He recalled that when he left, his family was crying. He stated that he never saw his family again after that. He was taken by truck to Ardud (Ardut), where a train station was located, and from there he was taken first to Sathmar, and then to Vienna. There were about eight or nine boys altogether who travelled from Secunda to Ardud, but once in Ardud, they were joined by more boys. In Ardud, they were put into cattle cars and then travelled for about half a day to their final destination of Vienna, where they were taken to the army barracks. He recalled that on the train trip to Vienna, he and some of the other boys had wanted to jump from the train, but they were warned not to do so since there were soldiers on top the train who might shoot them. In Vienna, Mr. Baumgartner arrived at the east barrack and selected a bed from among the bunk beds. He recalled that the barracks were run by the S.S. According to Mr. Baumgartner, the Wehrmacht was the "real German army"[7]. He testified that only German citizens could join the Wehrmacht, therefore he could only join the S.S. Mr. Baumgartner himself never dealt with the Wehrmacht administration, which was separate from the S.S.
[46] This testimony of Mr. Baumgartner is not in accordance with the documentary evidence as reviewed by Dr. Tuchel. The documentary evidence shows that compulsory conscription did not occur during the 1942 Waffen S.S. recruitment exercise in Hungary/Romania. Contrary to Mr. Baumgartner's assertions, recruitment was completely voluntary and there was evidence that in the area near the village of Secunda youth were in fact being pressured and coerced not to join the S.S.
[47] By December 1941, the German invasion of Russia had stalled. The German armed forces needed more soldiers. The Waffen S.S. began recruiting Volksdeutsche and persons from Germanic countries such as the Netherlands and the Flemish part of Belgium. As a result of the Vienna Award, portions of Romania with significant populations of Volksdeutsche were transferred to Hungary. This included the region around Satu Mare (Sathmar) which included Secunda (Sokund). As early as 1942, the Hungarian Prime Minister had agreed to the recruitment of Volksdeutsche volunteers in Hungary for the Waffen S.S. After the exchange of a series of diplomatic notes between Hungary and Germany, it was agreed that Germany could recruit 20,000 Hungarian Volksdeutsche volunteers for the Waffen S.S. with the following restrictions, inter alia:
a) volunteers would have to be between the ages of 18 and 30 years;
b) a written declaration of consent would be required from the parents/guardians of minors;
c) the volunteers would have to appear before a recruitment board which was to consist of one liaison officer of the Royal Hungarian Honved (army), one representative of the Royal Hungarian Administrative authority, and one Waffen S.S. officer;
d) the volunteers' names would have to be submitted to the Honved ministry in order to determine if the recruit could be dispensed with as a skilled worker in a vital war related industry or as a trained soldier;
e) the volunteers would have to be physically fit for service; and
f) the volunteers would become naturalised German citizens upon being accepted into the service of the German military, thereby losing Hungarian citizenship.
[48] Recruits were to be registered by the local head of the Ethnic Association of Germans in Hungary, or representatives of that organization, which then had the responsibility to report the number of volunteers enlisted to the Reichsfuerher S.S.- Obersturmbannfuerher Nageler.
[49] A total of 25,709 men presented themselves to the selection commissions and 17,860 were found to be suitable. Of the number found suitable, 7,566 were deemed suitable for the S.S. and 10,294 were deemed suitable for the army. The Waffen S.S. had a height requirement that its members should be taller than 1.70 metres but as Dr. Tuchel pointed out, this height requirement did not prevent candidates suitable from the army from serving in the Waffen S.S.
[50] The recruitment process took place in February and March of 1942 following the agreement in January. A selection of Volksdeutsche volunteers in Hungary ended on April 3, 1942. However, there was a delay in transporting these recruits into the German Reich.
[51] At trial, Dr. Tuchel referred to a report from the local group leader of the ethnic German group in Hungary, Maitingen, Sathmar. That report indicates that ethnic German volunteers reported to the town hall to register their departure from the community on April 24, 1942. Dr. Tuchel also looked at the document at Exhibit P-3, Tab 120, which shows that a transport left Gross-Karol on April 25, 1942 with 1,758 recruits. These documents indicate that the only train transporting volunteers out of the Sathmar region to Germany left Gross Karol, Hungary on April 25, 1942. The Defendant stated that he was forcibly conscripted on March 30, 1942, was immediately taken to a train station at Ardud, Hungary and was then taken by train to Vienna that same day.
[52] There are also inconsistencies in Mr. Baumgartner's evidence with respect to the recruitment exercise, as well as explanations which were not credible. At discovery, he claimed that he was impressed with the appearance of the S.S. soldiers. At trial he initially denied being impressed with the S.S. upon their visit to Secunda, and then confirmed that he was impressed with the soldiers appearance but that it meant nothing to him in respect of his desire or lack thereof to join the S.S. At one point in his testimony he denied knowing that the soldiers who visited Secunda were S.S., but later agreed that they were wearing S.S. uniforms. There were other inconsistencies with respect to certain matters which can perhaps be explained by the sixty-year gap between the event and Mr. Baumgartner's testimony. For instance, he stated at one point that there were about four German soldiers and at another point, that there were about ten. At discovery, he stated some of the young men in the village did not want to go and said they would not go, and then at the hearing he testified that all the young men said they would not go, but were compelled to do so. At trial, he testified that the Germans came on March 30, 1942 and rounded up the boys in one day, but at discovery he testified that the Germans spent two or three days. Although the Statement of Defence stated that the local leaders of the ethnic German Association in Secunda coerced the young men into joining the German army, Mr. Baumgartner denied this before the Court. He denied there was any ethnic German Association in Secunda, stating that there were simply community leaders and that it was the Hungarian government and the German soldiers, not the local elders, who forced the young men into the army. Mr. Baumgartner denied knowing anything about the German recruitment campaign until the Germans came to Secunda at the end of 1941. However, there is documentary evidence indicating there were recruitment posters in the nearby town of Bildegg, only ten or fifteen kilometres away from Secunda. He stated that the recruiting campaign was kept a secret.
[53] Dr. Tuchel reviewed various documents relating to the hostile reaction of ethnic Hungarians towards the Volksdeutsche who had volunteered for the Waffen S.S. The review included documents related specifically to the Sathmar region. The Volksdeutsche volunteers were spat upon as they voluntarily enlisted; were threatened with incarceration; were beaten by Hungarian soldiers; and were harangued by Hungarians as to why they did not instead volunteer for the Hungarian army. When Mr. Baumgartner was questioned about these documents he replied that it was possible that the Hungarian government had done one thing, that is, reach an agreement with Germany, while the Hungarian soldiers did another, that is, harass and beat up Volksdeutsche recruits into the Waffen S.S.
[54] The Minister's counsel cited a report from Maitingen in the Sathmar region detailing the experience of an individual who, in order to join the Waffen S.S., had to sign a renunciation of his Hungarian citizenship. Mr. Baumgartner testified it was not necessary for him to do this in order to join the Waffen S.S. Another report on the situation in Sathmar referred to a German recruiting board which processed volunteers for the Waffen S.S. in Hungary, but Mr. Baumgartner testified that he had never heard of such a board and that all the processing in his case was done in Austria.
[55] The Minister's counsel also cited a report on the situation in Sathmar concerning Schandra, which Mr. Baumgartner testified was about eight kilometres from Secunda. According to the report, a person fairly high up in the Catholic Church, a former Bishop named Napholz, had condemned those who volunteered for the Waffen S.S. Mr. Baumgartner challenged the authenticity of this report and also suggested there might have been another context for it. He further stated he had never heard the priest in Secunda say anything about the recruitment.
[56] Mr. Baumgartner denied that the terms of the recruitment set out earlier in the diplomatic agreement between Germany and Hungary were complied with during the recruitment in Secunda. Furthermore, with respect to Mr. Baumgartner's reply that there was no place to which to escape as the Germans were all over the place, this is inconsistent with his testimony that due to the absence of radio, newspapers or transportation, he had no way of knowing what was going on outside of Secunda, including the neighbouring villages.
[57] Mr. Baumgartner testified he did not attempt to enrol in the Hungarian army because he was not 21 or 23 years old, as was required to join the Hungarian army. I do not accept this as credible evidence.
[58] Of the approximately 17,800 volunteers that were found suitable for the S.S. or the army, some 1,300 were not transported even though fit for service, either because they were retained by the Hungarian government or reconsidered their decision to join. The voluntary recruiting campaign of 1942 was compared to the recruiting campaigns of 1943, which had elements of moral suasion and some coercion, and 1944, which resulted in compulsory military service for Volksdeutsche in Hungary.
[59] The Defendant submits that this Court should find that Mr. Baumgartner was forced to join the Waffen S.S. in 1942. In support of this submission, the Defendant argues that forced conscription occurred on an individual level, while Dr. Tuchel's evidence is very general in nature. The Defendant argues that forcible recruitments did occur within the larger environment of voluntary recruitment. In support of this, the Defendant indicates that there are other historians who disagree with Dr. Tuchel's view of the recruitment process that occurred in Hungary in 1942. The Defendant also points to the September 5, 1942 letter from Lieutenant Colonel Juettner, S.S. Operational Headquarters to Lieutenant General Berger, S.S. Conscription Office of the Waffen S.S. regarding "induction of Ethnic German and Germanic Volunteers". In this letter, Juettner discusses complaints regarding Berger's recruitment process in Hungary and the apparent errors in this process whereby ethnic Hungarians, who were considered inappropriate candidates for the S.S., were recruited forcibly.
[60] I do not find these representations by the Defendant to be convincing. The evidence regarding the recruitment practices of the S.S. in Hungary at the relevant time, as given by Dr. Tuchel, was uncontradicted and credible. The Defendant did not present any expert witnesses to contradict the evidence of Dr. Tuchel. Juettner's letter to Berger indicates that there were internal disagreements between different parts of the S.S. organization regarding the recruitment of appropriate S.S. candidates. The letter does not convincingly demonstrate that forcible recruitment actually occurred, or that such recruitment involved ethnic Germans. Given the credible and convincing evidence of Dr. Tuchel on the recruitment process, the documentary evidence before me, and the lack of credibility of Mr. Baumgartner's version of events, I find that Mr. Baumgartner voluntarily joined the S.S. in1942.
Where was Michael Baumgartner from April, 1942 until April, 1943?
[61] Mr. Baumgartner stated that after the recruits arrived at Vienna, they were placed in barracks. They were told to wait for their clothing to arrive and that they would be taken to a training camp near Hamburg. During this waiting period, the new recruits were shown pictures, taught how to march, how to salute and given a general army education which included training in guns, rifles, machine guns, grenade launches and tanks. In Vienna, his papers were checked once again. After this waiting period, the recruits were taken from Vienna to Grafenwohr, near Hamburg. They again travelled by train, according to Mr. Baumgartner.
[62] Mr. Baumgartner testified that he continued in training at Grafenwohr until Christmas. He stated that three months after arriving in Grafenwohr, he was placed in the Panzer regiment. Upon completing the training successfully, the boys were given a bottle of wine or a pack of cigarettes. Mr. Baumgartner stated that they were required to take an oath before Christmas at Grafenwohr, and upon doing so they were told "you are now Nazis"[8]. The oath was to the effect that the newly-inducted soldiers would defend the Third Reich and fight for it. He recalled that like some others, he did not want to take the oath, but when he mentioned this to one of the officers, the officer said: "Don't even mention it, they gonna shoot you."[9]
[63] Mr. Baumgartner testified that subsequent to Christmas, 1942 he was stationed in Yugoslavia for about 6 weeks and then he was returned to Grafenwohr. He went from there to Erlangen, where he waited for new tanks and he was still a part of the Panzer Regiment Funf Wiking. He then agreed to volunteer for a truck driving school in Holland near Apeldoorn. He stayed there for approximately six weeks. He recalled that the trainees were supposed to be qualified in three weeks, but that those who didn't make it, but showed promise, were allowed to stay on for another three-week training period. After six weeks, he was given his certificate and sent to Warsaw. He then volunteered to go to Debica, Poland where he attended sick and injured horses which were being used in the war effort.
[64] There are no contemporaneous documents to support Mr. Baumgartner's testimony. Much of the information in his testimony is contradicted by documents referred to by Dr. Tuchel. Furthermore, Mr. Baumgartner was somewhat evasive with respect to specific dates and times.
Concentration Camp Guard Training
[65] Dr. Tuchel testified that concentration camp guards were trained in so-called S.S. guard troops. He stated that in 1935, the guard troops at concentration camps were called "Death's Head units". New guards entering concentration camps were trained by officers and NCOs in their units or companies. He noted that, before the war, guards were given three weeks training and one week in a guard unit. However, during the war, guards would be given basic training, lasting about three months from the beginning of their duties, and at some concentration camps, they would receive only basic military training with standard rifles.
[66] The training consisted of both ideological and physical training. A guard would have received basic military training for three months with a rifle 98. However, the ideological training was permanent and continuous, especially in an elite organization such as the S.S. It consisted of training information and the main goals of Nazi ideology. The subjects the guards were taught were set out in regulations but, due to a shortage of paper in the camp and also to preclude the possibility of written regulations being smuggled out of camp, guards were generally informed verbally of the regulations. The subjects included: General Information; Guardsmen Uniform; Superior Officers of the Guard and Sentries; Sentry 1 and Entry Controllers; Prisoners Escorts; and Use of Weapons.
[67] As stated earlier, the guard units were incorporated into the Waffen S.S. no later than April, 1941. Dr. Tuchel testified that ordinary guards at the lowest level had the option of requesting transfers to fighting units of the Waffen S.S. In other words, although they could not have simply requested a discharge, they could have requested a transfer to a fighting unit of the Waffen S.S. According to Dr. Tuchel, there was no historical evidence of an ordinary guard being punished for refusing to serve in a concentration camp or requesting to be transferred to a different type of unit. A message from the Inspector of Concentration Camps, Bergschmidt, dated December 31, 1944 to a representative of the German ethnic group leader in Hungary stated that 3,255 ethnic Germans from Hungary are serving in the concentration camp units under the S.S. Economic Administration Main Office. This date is, of course, much later than when Mr. Baumgartner was shown to be in the concentration camps, but it is indicative that some ethnic Germans from Hungary did become concentration camp guards.
[68] As stated earlier, training and materials set out the main goals of Nazi ideology and thinking in concentration camps. Mr. Baumgartner denied that he ever received any Nazi ideological training. He testified that the officers told him the war was being fought due to discord between Poland and Germany, and also against Communism. Furthermore, Mr. Baumgartner denied ever having been told anything about concentration camps.
[69] Mr. Baumgartner denied receiving ideological training with the S.S. or any knowledge of the S.S. principles. Dr. Tuchel identified the most important general ideological principles governing members of the S.S., including the Waffen S.S. He said that according to Himmler, the S.S. was first and foremost a community of voluntary, German nordically-inclined men, selected according to special aspects. The entire S.S. was based on the principle that "every war means a drain of the best blood ...". In other words, the Germans were members of a higher race and the S.S. were seen as representatives of that racial superiority. Dr. Tuchel described the main goals of the S.S. as follows: first, it was a racist organization; second, it was a community of volunteers, an elite formation, not only in Germany, but particularly, of the Nazi Party in Germany; third, it was founded on a hatred of the Jews, who were regarded by Himmler and the other S.S. leaders as sub-human; and fourth, the invasion of Russia was characterized as a battle for living space for Germans in the east. This last principle was key to the Waffen S.S., particularly manifested in the invasion of Russia, which was seen as a battle for "living space" (Lebensraum). Generally, the war was seen as a means of practically achieving these ideological cornerstones of the S.S.
German Documents Relating to Mr. Baumgartner During the 1942-43 Period
[70] The Minister produced a copy of Mr. Baumgartner's "S.S.-Stammkarten-Abschrift", an authentic duplicate of his S.S. permanent record card. Dr. Tuchel explained the process whereby such cards were produced and maintained. Upon joining either the Waffen S.S. or the general S.S., individuals would be given such a card, an original record, which was forwarded to the S.S. Main Leading Office. Subsequently, every time an individual transferred to a unit in the Waffen S.S., the new unit would produce a new S.S.-Stammkarten-Abschrift. The new unit did so having reference to an identity document carried on the person of the individual, a "Soldbuch" or military pay record. The new unit also worked from the individual's "troop original records excerpts", which indicated his military service prior to his transfer. The new unit would retain the new S.S.-Stammkarten-Abschrift it produced, even subsequent to the individual's departure from that unit. Each new unit receiving the individual would produce a copy of the Stammkarten, having regard to the individual's Soldbuch and "troop original records excerpts". A new Stammkarten would also be produced when an individual transferred to a new concentration camp.
[71] The S.S. Stammkarten was a standard form which was also utilized by the general S.S., therefore it contained terms that might not necessarily apply to the Waffen S.S. For instance, box number 12 asks for a general S.S. number. Waffen S.S. troops were not assigned general S.S. numbers. In reviewing Mr. Baumgartner's S.S. Stammkarten-Abschrift, Dr. Tuchel pointed out that Boxes 12 and 15, which provide space to record information specific to the individual's Nazi Party and S.S. membership, were left blank since Mr. Baumgartner was a member of the Waffen S.S. Mr. Baumgartner's Stammkarten shows his birthday as August 22, 1923 and his birthplace as Secunda, Hungary. The card indicated that, at that time, he was an unmarried Roman Catholic Volksdeutsch. His residence was Secunda, house number 2. He was trained and employed as a farmer. His height is listed as 170 centimetres, his shoe size 45 and his head size as 58. The card indicates that he had the ability to speak both Hungarian and Romanian.
[72] Box 20 of the S.S. Stammkarten sets out that Michael Baumgartner served in the infantry and guard service, and that his last rank was S.S. reserve private, the lowest rank in the S.S. This indicates that he had not yet been sworn into the S.S. He had been a candidate since April 27, 1942. According to Dr. Tuchel, the swearing in ceremonies for the S.S. normally occurred on January 30, April 20 and November 9, which were dates of special significance to the Nazi Regime.
[73] Mr. Baumgartner's total training for both basic infantry and guard duty lasted almost three months. Box 21 sets out that Mr. Baumgartner had no special training. Box 24 shows that he was trained with the German rifle 98, the general rifle in use in Germany since 1898. In box 26, his "conduct" is assessed as being "quite good". Box 28 records his transfers since entering service, beginning with the S.S. Cavalry Brigade and ending with Stutthof Concentration Camp. He was first transferred from Vienna to the S.S. Cavalry replacement unit in Warsaw on June 12, 1942. On July 21, 1942, he was transferred to Stutthof Concentration Camp. Box 34 indicates that he was first registered by the S.S. Danube conscription authority for the south eastern area in Vienna.
[74] Dr. Tuchel testified that it was not unusual for a Stammkarten not to have the bearer's signature, as is the case with that of Mr. Baumgartner. The Stammkarten were not signed because each time a man was transferred to a new unit, a new card would be created by that new unit. Since the last entry in box 28 is dated, July 27, 1942, at the Stutthof concentration camp, Dr. Tuchel concluded that the card was created at Stutthof concentration camp.
[75] Upon joining the Waffen S.S., an individual would have been required to swear an oath of loyalty to Adolf Hitler. The text of the oath is shown in a booklet "The S.S. is calling upon you" and reads as follows:
[76] The Headquarters of the Stutthof Concentration Camp wrote a letter to the S.S. Cavalry Replacement Unit in Warsaw, dated February, 16, 1943 about Mr. Baumgartner's pay book. In the body of the letter, Commander Hoppe stated that:
[77] Dr. Tuchel testified that every member of the Waffen S.S. was issued a pay book and it was used as a means of personal identification. The issuer was supposed to assign a number to each pay book, but it was not unusual for a pay book to be issued without being assigned a number if the soldier spent only a short time in a reserve unit. The pay book was supposed to stay with the individual until the day of his discharge and he was to keep it on his person. The S.S. Cavalry Replacement Unit in Warsaw replied to the letter and stated that the pay book number could not be given, as there were no documents in the S.S. Calvary Replacement Unit relating to Baumgartner. I do not agree with the submission that this document supports Mr. Baumgartner's testimony that he was never located in the Cavalry Replacement Unit. In my view, Dr. Tuchel is correct when he stated he was not surprised that the Cavalry Replacement Unit could not locate documents pertaining to Michael Baumgartner, since he had only been in that Unit from June 12 to July 21, 1942, especially in view of the fact that there were over 15,000 new Waffen S.S. recruits from Hungary at that time.
[78] I now come to the "Belehrung" document, which was the most controversial document before me. The title of this document was translated as "Instructions for Concentration Camp Guards", was signed on March 1, 1943 and indicates that Mr. Baumgartner had been informed of the basic orders for an S.S. man in a concentration camp. The reason that the document is so controversial is that the handwriting expert for the Defendant stated that it could not have been signed by Mr. Baumgartner. The plaintiff's expert could neither identify nor eliminate the signature on the Belehrung as being that of Mr. Baumgartner.
[79] Dr. Tuchel stated that these instructions were in a standard format and were generally used by various concentration camps, but that there were slight variations reflecting the local conditions at Stutthof concentration camp. The document is part of the personal file of the individual named in the upper right hand corner, also the signatory (in the lower right hand corner), "S.S.-Schütze" or Michael Baumgartner. Every guard had to sign such an instruction. Dr. Tuchel stated the signing was a momentous, solemn event insofar as it was the most comprehensive, detailed instruction given to the guard and signified his informed assumption of all the responsibilities of his service in the concentration camp. He would have been instructed orally and in writing on the regulations contained in the instruction. The individual would not undergo this ceremony until he had served for a period in the camp and been afforded an opportunity to become acquainted with the regulations and to implement them in his daily duties as a camp guard. The document also set out that he had been instructed in detail on the points listed in the document by S.S.-Untersturmführer Ehle, who was head of the third company of S.S. guards at Stutthof from 1941 to late 1944.
[80] The sixteen items covered in the Belehrung are as follows:
1. Guard Regulations
2. Special instructions for guards
3. Conduct as escort guard for prisoners [Haftlingsbegleitposten]
4. Conduct as guard leader for prisoners [Haftlingspostenfuehrer]
5. Conduct in the face of escape by prisoners
6. Duties as control or stationary sentries at the camp entrances (also protective custody camp [Schutzhaftlager])
7. Treatment of prisoners and maltreatment of them
8. Contact with prisoners
9. Accepting gifts
10. Espionage, treason, sabotage
11. Secrecy (ongoing instruction)
12. Taking pictures in or at the camp, and of prisoners
13. Conduct on arresting suspicious persons
14. [Was struck out on the form, which, according to Dr. Tuchel indicated that the signatory, Michael Baumgartner, was a guard and not a member of the headquarters staff who were responsible for the protective custody camp.]
15. Order from the Führer on death and life for enemies of the State. [Dr. Tuchel noted that although guards were officially forbidden to maltreat or beat a prisoner, this was routinely done in the concentration camps.]
16. Order on maintaining the purity of German blood [in the] S.S. and police.
[81] The Defendant asked me to make the following findings of fact:
1. The person who signed the Belehrung was the same Michael Baumgartner who relates to documents relied upon by the Minister and specifically referred to herein in the S.S. record-keeping documents at Stutthof and Sachsenhausen;
2. The Defendant did not sign the Belehrung; and
3. The Defendant is not the person to whom the documents the Minister relies on relate, i.e. the Defendant is not the 'Michael Baumgartner' who worked as a concentration camp guard at Stutthof and Sachsenhausen.
I am unable to make those findings of fact. In light of the expert evidence, I am not prepared to find that Mr. Baumgartner did sign the Belehrung. However, I do find that he might have been the person who signed it.
[82] While I am very concerned about the lack of confirmation of the signature of Mr. Baumgartner on the Belehrung document, there are a number of factors besides the use of the handwriting experts which lead me to conclude that I cannot make the findings requested by the Defendant. This document is the only document that was allegedly signed by Mr. Baumgartner that was presented by the Minister from the Nazi era in 1942 and 1943. Neither the Minister, nor the counsel for the Defendant presented any documents that confirm Mr. Baumgartner's version of where he was during the second World War, except for documents where Mr. Baumgartner himself was the source of the information. The problem with the documents upon which Mr. Baumgartner relies is that they are not consistent with regard to his employment during World War II. Mr. Baumgartner's application to the International Refugee Organization (I.R.O.) stated that he worked as a farmer in Secunda from 00-00-35 to 00-05-43, and that he served in the Hungarian Army from 00-05-43 to 00-03-45. This document also states that Mr. Baumgartner then worked as a farmer in Secunda and then worked in Coburg, Germany. A letter sent by the City of Coburg to the I.R.O. makes the statement, "According to Mr. B.'s statements, he was in the Romanian army in 1942/1943, and subsequently in the Hungarian army." While the Minister's documents do not contain Mr. Baumgartner's signature, there is also no doubt that they are authentic S.S. documents. While it is arguable that the S.S. would have had no hesitation in preparing false documents, there is simply no reason to believe that the records of Mr. Baumgartner's membership in the S.S. during 1942 and 1943 would be falsified. Furthermore, all of these documents contain all of the correct biographical information relating to Mr. Baumgartner. There are no errors with respect to his name, place of birth, date of birth and other general information on the form. I therefore find the Defendant's argument that the Belehrung is determinative of the issue of whether or not Mr. Baumgartner served as a concentration camp guard to be unconvincing.
[83] Mr. Baumgartner was transferred to Sachsenhausen Concentration Camp on March 12, 1943 where he served for two weeks, and was transferred to the S.S. driver training school in Apeldoorn, Holland on March 25, 1943. The Minister's case is based on this period of time during the war. Mr. Baumgartner testified that after leaving the Apeldoorn truck driving school, he was sent to Warsaw. At that time the Waffen S.S. sought Mr. Baumgartner to look after injured horses from the front. He then transferred to the Panzer Regiment Funf Wiking in Erlangen. He was involved in this unit until 1944 when he travelled to Budapest and fought there for about six months. He was eventually captured by the Russians near the Austrian border around the time the war ended in May, 1945, but he escaped and went to Germany. He ended up in a prisoner of war camp, the Regensburg. He received the certificate of discharge from the army and a release from the camp on September 6, 1946. He tried to get into the refugee camp at Emberg, but there was no room. He spent the majority of the next few years at the refugee camp in Coburg until he immigrated to Canada in 1953.
[84] Mr. Baumgartner testified that after the war he could not go home: "they throw all the Germans and everybody out from Hungarian, Czechoslovakian, Poland, Yugoslavian, and in Romania so there is no going back"[10]. There were no jobs, everything was bombed. The barracks in Coburg where Mr. Baumgartner lived from 1946 to 1953 was known as Von Selle Kaserne. He lived in a room with between eight and eleven other individuals with communal kitchen facilities. Food was scarce. Mr. Baumgartner was married to his first wife in 1950. He had had a child with her previously, in 1948. His first wife lived with the child and with her parents while Mr. Baumgartner lived in the Von Selle Kaserne. He stated that he did not receive any assistance from the I.R.O., as he was of German descent. However, he applied on January 1, 1949 to the I.R.O. for a determination of his eligibility for care, since someone had told him that since he was born in Romania he might be eligible to go into the I.R.O. camp. He wanted to get into the I.R.O. camp in order to be able to live with his wife and child in better living conditions. He admitted that when he applied for I.R.O. assistance he did not tell them that he had been in the Waffen S.S.
The Immigration Process and Rejection Criteria from March to June, 1953
[85] I will give a brief overview of the immigration process in place at the time that Mr. Baumgartner applied to land in Canada. Much of the testimony and argument on this process concerned whether or not Mr. Baumgartner would have been asked to disclose his wartime military service, either on the so-called "OS-8" form, during the Stage B security interview, during his interview with Immigration Officer Lapierre or at the Port of Entry upon his arrival in Canada. Most of the documents created at that time were destroyed in accordance with the Federal Government's file retention and removal policies. Much time and effort was expended in order to determine this question and to lay out the immigration process that was in place between March, 11, 1953, when Mr. Baumgartner was interviewed by immigration officials, and May of 1953, when Mr. Baumgartner arrived in Canada. Much of this evidence was confirmed by Mr. Baumgartner himself when he testified that he was indeed asked about his military service during his interview to immigrate to Canada. I will then proceed to address the issues of what rejection criteria were in place in Munich in March, 1953 and whether the rejection criteria were the proper ones.
Overview of the Post World War II Immigration Process in Europe:
[86] The Minister called upon several witnesses who had worked in various roles in the immigration and security systems after the second world war at posts in Europe and Canada. These witnesses described a process whereby potential immigrants in a position similar to that of Mr. Baumgartner in 1953 would make application for landing in Canada. Once such applicants had passed the initial paper screening, each one would be subject to a security clearance process (called "Stage B"), which was conducted by a Visa Control Officer - a member of the RCMP (also referred to as a "Stage B Officer"); an immigration medical; and an interview by an Immigration Officer. If an applicant passed each of these stages of the process, he would be issued a visa and would travel to Canada. He would only become lawfully landed in Canada after passing an interview by another Immigration Officer at the Port of Entry. Even if a person obtained a visa to come to Canada, the possession of a visa was not conclusive evidence of admissibility. Admissibility could only be determined by the examining officer at the Port of Entry and the examining officer relied heavily on the opinion of the Immigration Officer overseas.
[87] The Defendant submits that there is no direct evidence about the immigration interview and Stage B practices in Munich in 1953 and that therefore the Minister's case is purely circumstantial. However, given the testimony of the various witnesses regarding general immigration practices in Europe in the post World War II period, I am satisfied that the Minister has demonstrated the basic practices that would have been followed in Munich during the time of Mr. Baumgartner's application and interviews concerning his application for landing in Canada.
Making Application: The OS-8
[88] Applicants for landing in Canada would be given or sent an application form (the "OS-8") to complete, which would subsequently be mailed to the Karlsruhe office. Questions were raised at trial regarding the particular version of this form in use at the time of Mr. Baumgartner's application for landing, as well as what type of information this form required an applicant to disclose. The OS-8 form at Exhibit P-2, Tab 59 was a copy of the form in use at the Stockholm office and is dated July 10, 1952. This form was identified by Immigration Officer Lapierre at trial as being the form that was completed by the person wishing to immigrate to Canada. This form asked the applicant for landing to provide certain information regarding his work experience, as follows:
26. Name and address of present (or last) employer
27. What work did you do for him?
28. How long were you employed by him?
29. Give the same details on the longest job you have had in the last ten years.
30. How many jobs have you had in the last ten years?
The Minister submits that these questions would have required Mr. Baumgartner to outline his employment in the German military as a member of the Waffen S.S. 5th Wiking Division and as a concentration camp guard. However, the Defendant submits that the form was eliciting information on employment with a view to determining whether or not a prospective immigrant would have the ability to settle successfully in Canada. The above questions, it was argued, did not necessarily require an applicant to provide information regarding his military service.
[89] There was some evidence tendered regarding an attachment that was added to the standard OS-8 form in order to question an applicant more specifically concerning activities during the war. The OS-8 form mentioned above, Exhibit P-2-59, was submitted as a sample of the OS-8 form used in Stockholm, Sweden in July, 1952. This form had an attachment in the form of a questionnaire which required the applicant to list work experience and military service for each of the preceding years, starting in 1938. Mr. Lapierre, the immigration officer who interviewed Mr. Baumgartner, identified the standard OS-8 used at Munich, Germany. I note that Mr. Lapierre did not identify the attachment to the OS-8 or the section of the OS-8 used to detail employment information. He initialled (identified) the last two pages of tab 59, exhibit P-2, i.e. "Application for Admission to Canada" and "For Completion by Visa Officer." He was not asked to identify or initial "Employment Information" and the attachment asking for a detailed employment history dating back to 1938. Mr. Gunn gave evidence that such attachments were in use at the various Canadian immigration offices in Europe prior to the actual incorporation of an actual question asking the applicant for a ten year history of work and military service into the OS-8 form itself. A copy of the OS-8 form in use in Germany in April, 1953 was produced at trial, indicating that the 10 year history question had been incorporated by that date. Furthermore, Mr. Kelly testified that in 1947, the policy in place was to obtain from the prospective immigrant his addresses and occupations for the previous 10 years and that this policy continued until at least January 9, 1953. After that time, the questioning became even more specific.
[90] I find that Mr. Baumgartner would have been required to disclose his work and military service record for the ten years prior to his application being made (It appears that he completed the OS-8 application in October, 1952). Even if the OS-8 form that he completed did not contain a question requesting specifics of his military service over the past 10 years, the questions concerning employment history would have elicited such information, as persons serving in the military during the war were employed by the military. However, even if I accept the Defendant's argument that questions 26 to 30 from the OS-8 form identified by Immigration Officer Lapierre did not constitute a request for information of the Defendant's military employment, I find that Mr. Baumgartner would have been asked to disclose any military involvement to the Visa Control Officer at his Stage B interview. (The Stage B security screening process is dealt with below).
[91] I also note that, according to Mr. Dubé, a retired Immigration Officer, the Visa Control Officers in Germany were relying only on tombstone data in the completion of the Stage B screening up until September, 1953. Thus, it is inferred that the OS-8 attachment was not in place prior to that time. As such, the Defendant submits, the Court should not infer that Mr. Baumgartner was ever specifically asked about his military service. However, in this case this submission cannot prevail, since Mr. Baumgartner testified that he was asked about his military service and the OS-8 form and attachment required military information. In addition, Mr. Dubé's evidence on this point is incorrect. Furthermore, I note that Mr. Dubé was not working in Europe at the relevant time, and therefore the context in which he was working would have been very different with respect to the issue of the collection of information concerning past military involvement of potential immigrants.
(1) Security screening (Stage B) by Visa Control Officer (RCMP)
[92] The Stage B process was conducted in order to ensure that people who posed security risks were not admitted into Canada. Some limited classes of people were exempt from this process, but Immigration Officers could request a screening of anybody, irrespective of these limitations. According to the testimony of Mr. Dubé, the Visa Control Officers ("VCOs") conducted security checks on all applicants that passed the paper screening. They did so primarily by sending the so-called "green form" to British and American security intelligence sources that were assisting them in their security checks. Applicants were called in for interviews when a response from the security intelligence sources was received or was expected to have been received. According to Mr. LaPierre, applicants attended all three stages of the interview process in one day, starting with an interview conducted by the Visa Control Officer.
[93] Mr. Gunn, a retired senior Immigration Officer, testified that the security officers who conducted these screenings asked for an attachment to be included on the standard form (the OS-8) used by the Immigration Officers to obtain information from applicants. This attachment requested a detailed military history of the applicant in order to get more information as to whether or not the applicant was inadmissible under the rejection criteria. If the officer determined that an applicant belonged to one of the inadmissible classes under the criteria, he would stamp the file "not pass Stage B". Mr. Gunn testified that the applicant's file would indicate the precise criteria upon which the applicant was deemed inadmissible. For example, if the applicant was found to be inadmissible because he had been a collaborator, then his file would show "not pass Stage B on grounds of K", with "K" indicating the particular inadmissible class of persons to which that applicant belonged. This testimony differed from the practice conducted at Mr. Dubé's posting, as he testified that Visa Control Officers did not indicate the reasons why an applicant had not passed Stage B. Instead, he said that the Visa Control Officers would stamp the file "not pass Stage B"and that no reason would be given for this rejection. He also stated that he never questioned the determinations of the Visa Control Officers. The Immigration Officer would obtain the file with this stamp in it, communicating to him that the applicant was inadmissible. The passport itself was not stamped. Since Mr. Gunn did not go to Europe until 1954, and then only to Belgium, where his testimony conflicts with another Immigration Officer who was in a place in Europe where displaced persons were processed for landing in Canada, I prefer the testimony of the Immigration Officer who was located where displaced persons were being processed. Although some of the Immigration Officers were not in Europe in 1953, I am satisfied that they were aware of the general practice in the early 1950's and of any changes over that period of time.
[94] The Defendant submits that Stage B was a "negative clearance" process whereby an applicant would be deemed to have "passed" if the search process did not elicit any derogatory information. However, it should be remembered that the process also required the applicant to attend an interview with a Visa Control Officer in order to determine whether or not there were any security reasons to deny the application for admission to Canada. The Defendant also raises concerns regarding the reliability of the evidence concerning the Stage B interview procedure, given Mr. Kelly's own concern with the lack of consistency among Visa Control Officers in terms of the application of standards (including the application of policy regarding former members of the Waffen S.S.). (Mr. Kelly was the Liaison Officer and the Officer in Charge of Canadian Visa Control for Europe at the relevant time.) The Defendant also takes issue with the weight to be accorded to the evidence given by Mr. Poole and Mr. Cliffe, two retired Visa Control Officers, as Mr. Poole was stationed in Germany starting in 1954, while Mr. Cliffe arrived in June, 1953. The Defendant submits that, given that the Stage B process was revamped in the summer of 1953, these two witnesses cannot have much to offer in terms of the process in place at the time when Mr. Baumgartner was interviewed (March 11, 1953). However, Mr. Baumgartner was interviewed prior to the summer, and Mr. Cliffe had been in Italy as a Visa Control Officer before going to Germany in June, 1953. Mr. Cliffe was a credible witness on the Visa Control Officers' practices in Germany at the relevant time, as a result of his time in Italy and Germany.
(2) Medical
[95] Applicants were to bring x-rays with them to their immigration interviews, according to Mr. Dubé. Mr. Lapierre testified that the medical officer used a small form to record whether or not the applicant had passed the medical stage. This would also be stamped in his passport. He said that he would refuse to grant a visa to anyone who was deemed to "not pass" the medical because he fell into one of the classes described under section 3 of the Act. Otherwise, if the medical officer deemed that the applicant was "3/C", i.e. certifiable for minor defects, then the Immigration Officer could endorse the medical officer's findings and grant the visa. This type of endorsement appears on Mr. Baumgartner's passport.
(3) Immigration interview by visa officer
[96] Mr. Gunn testified that the main objective of the immigration interview was to determine whether or not the applicant met the employment requirements of the Immigration Act and appeared likely to successfully establish himself in Canada. Immigration Officers operated according to detailed instructions, official circulars, a guidance manual and operations memoranda. All officers operated under Directive 69, reproduced at trial as exhibit P-2-54. Directive 69 originated from Order-in-Council 2856 of June, 1950, which directed the Minister of Immigration to allow the admission into Canada of any person he deemed suitable. The Minister's power under Directive 69 was delegated to Immigration Officers overseas. Immigration Officers had wide discretion in selecting anyone who appeared to be a desirable potential immigrant, provided the person was not prohibited.
[97] The OS-8 form was developed to aid in the interview stage. Mr. Dubé indicated that Immigration Officers started to gather employment and military histories from applicants in 1952 and 1953. While it is difficult to determine specifically when this type of questioning was initiated, the OS-8 form of February, 1951 did require the applicant's previous employment over the previous ten years. It is important to note that Immigration Officers could not admit persons who had not passed the Stage B security screening, nor could they waive security screening if they believed the applicant was eligible for entry.
[98] Mr. St. Vincent, a retired Immigration Officer, testified that when he worked in Germany, he would question applicants regarding any suspicions he had about vague answers concerning possible criminality. If he was not satisfied with the answers he received, he would refer the person to the security officer and would tell the officer why he had suspicions about the applicant. St. Vincent testified that he would have referred any applicant who told him that he had been a member of the Waffen S.S. or a guard in a concentration camp. He reiterated the point that Immigration Officers never overruled the decision of a security officer.
[99] The Defendant submits that there is no way to determine whether or not Mr. Lapierre did indeed ask Mr. Baumgartner about his military service during the war. However, this is irrelevant given that the Visa Control Officer would have questioned Mr. Baumgartner on his military record. Also, at trial Mr. Baumgartner testified that he disclosed his military service in the Waffen S.S. to the Canadian officials who interviewed him. Furthermore, Mr. Lapierre testified that given the fact that Mr. Baumgartner's passport contained a medical stamp and an Assisted Passage (AP) warrant dated for March 11, 1953, Mr. Baumgartner would have been interviewed by both himself and a Visa Control Officer on that date. Mr. Lapierre also testified that he never overruled the Visa Control Officer's decision regarding whether or not a prospective immigrant had passed Stage B or not.
Port of Entry
[100] According to Mr. Gunn, Port Of Entry Officers tended to rely on the opinion of the visa officer overseas, so the Port of Entry examination was of lesser value and importance. However, this examination was the point where legal landing was actually granted. Mr. Gunn testified that at the Port of Entry, if the person had joined the Waffen S.S. in 1942, the person would have been referred for further examination as required by the Immigration Act. The same would apply if the person indicated that he had served as a concentration camp guard during the war. Mr. Roy, a retired Immigration Officer, also testified about the procedures practised by immigration at the Port of Quebec, where he worked from 1950 to 1953. Visa holders arriving at the Port of Entry would fill out a "Canada Immigration Card form 1000" and be seen by a doctor. The Immigration Officer would ascertain the identity of the applicant, examine the applicant's form 1000 and passport. Mr. Roy testified that he did not normally ask questions about an applicant's wartime service, "[b]ecause we knew that this person had been examined by a security officer and all these questions should have been raised before this person gets his visa. But in case of doubt, we would go into the matter, but otherwise normally we didn't." Mr. Roy said that this was the normal practice for officers under his supervision.
Mr. Baumgartner's immigration to Canada
Mr. Baumgartner's Testimony:
[101] Mr. Baumgartner testified that his father, uncle and aunt were in the United States immediately after the war, and that in 1947 they contacted the Red Cross in an attempt to find him. He testified that in June, 1947, the Red Cross contacted him requesting that he meet with Red Cross representatives in order to discuss immigration. He stated that he went to a large building in Munich which contained offices for the Red Cross and where persons went who were seeking to immigrate to Canada, the United States and Australia. He testified that a female representative of the Red Cross interviewed him about immigrating to the United States and that he told her he had served in the 5th Panzer Division of the S.S. during the war. He was advised that he could not immigrate to the United States because he had served in the German army, but that he could re-apply every six months. Mr. St. Vincent, who worked at the Funk Kasserne, could not recall any Red Cross representatives being located in the Funk Kasserne. Mr. Dubé, who also worked at the Funk Kasserne, never saw any American or other agencies working out of that building. Importantly, Mr. Lapierre, the Immigration Officer who issued Mr. Baumgartner's visa, did not see any Jewish immigration or Red Cross representatives working out of the building. However, he did testify that the Australians, New Zealanders, and possibly the Americans operated out of that same building. Furthermore, Mr. Dubé testified credibly that the only organizations, outside of Canadian Immigration, which distributed OS-8 forms were the International Refugee Organization (I.R.O.) and a Jewish welfare agency.
[102] Mr. Baumgartner claimed that he was interviewed by Immigration Officers twice between the years 1947 and 1952 and that he told these officials about his service in the 5th Panzer Division. He testified that he received a letter stating that he should return (apparently to the Red Cross) for another interview because the law had been changed, however, upon return, he was told he would have to wait again. At that time, he was interviewed in the same building at an office that appeared to be the Canadian Consul or Canadian immigration, by a Red Cross representative and two men who said that they wanted to talk to him about immigration to Canada. Mr. Baumgartner testified that he was asked about his military service and that he told the officials that he was forced to join the 5th Panzer Regiment. At pages 2449-50 of the transcript, Mr. Baumgartner made the following statements about what he was asked and what he told Canadian immigration officials during this interview:
Where I come from and the same thing from the army. They couldn't understand why, if you were born in Romanian, that you got in the German army so I explained it to them. The same with the armies. How come you were Romanian army, Hungarian and German army? Because the countries changed and you belong to there. That's a different country, different rules, different army. Germany came with the same hocus pocus, we have the papers, we can take you.
...
And I told them I was in the Waffen SS Panzer Regiment 5. They asked me how come you went there? I said we had to. They had some kind of deal, Hungarian with the Germany because of always the land. Germany wanted to go through there to go to the Black Sea, give us your soldiers, we give you the land back. So they did. We were soldiers traded for land...
[103] Mr. St. Vincent testified that if a potential immigrant had disclosed during an interview that he had been a member of the Waffen S.S. or had been a guard in a concentration camp, then he, Mr. St. Vincent, would have referred that applicant back to the Visa Control Officer.
[104] Mr. Baumgartner described taking a medical and having to show the interviewers his release form from the army and his birth certificate. He said that when he told these interviewers that he had already applied to immigrate to the United States, which was true, that his interviewers then sent someone to obtain the documents he had submitted under that application. When he testified that the Canadian interviewers had access to the United States immigration files, this was not credible evidence. He also stated that he had to complete paperwork asking for his tombstone information. I prefer the evidence of Mr. Lapierre, who issued Mr. Baumgartner's visa. Although Mr. Lapierre could not recall the interview he must have conducted with Mr. Baumgartner, which was one of many interviews he conducted almost five decades prior to his testimony, he did testify as to the processes followed by him in his capacity as an Immigration Officer posted to Karlsruhe, Germany in May, 1952. He described the application process in place in Karlsruhe in 1952 and 1953.
[105] Once Mr. Baumgartner was advised that his application to Canada had been accepted, he applied for a passport (March, 1953) which he later sent to the Canadian officials. Mr. Baumgartner said that he picked up his passport, complete with Canadian visa stamp, in Bremen just prior to his departure. Mr. Baumgartner also claimed that, during his ocean voyage to Canada in 1953, he discussed his personal history with an Immigration Officer, including the reason why he had served in three different armies. This is just another example of Mr. Baumgartner giving a different version of how he described his military activities during the war. Mr. Roy, another retired Immigration Officer, had worked as an examining officer who met and examined immigrants on board the ships coming into the Port of Quebec or going down to Point-au-Père during the 1950-1953 period. He did not examine Mr. Baumgartner, but he identified the signature of Maurice Landry on the Canada Immigration Form 1000. He further recognized the Canadian Immigration Visa in Mr. Baumgartner's German passport. He identified the number and the authority to admit and issue the visa. The authority for the Immigration Visa Officer rests in an Order-in-Council, i.e. P.C. 2856-4.
Minister's Submissions
[106] As submitted by the Minister, Mr. Baumgartner's testimony at trial, as described above, flagrantly contradicted his testimony at pre-trial Discovery. I note that certain itemized portions of the Discovery transcripts were read into the record at trial, so can be considered by me in reaching my decision regarding the credibility of Mr. Baumgartner's testimony. Any careful review of Mr. Baumgartner's testimony during cross-examination and his evidence at discovery leads to the inescapable conclusion that he has changed his story in general and in its specifics about his application for immigration to Canada several times. When confronted at trial with the discrepancies between what he testified to about his immigration to Canada during the discoveries and what he related to the Court at trial, Mr. Baumgartner gave confused, incomplete and illogical answers. Mr. Baumgartner gave weak explanations for these discrepancies.
[107] Even the best versions of Mr. Baumgartner's evidence are at odds with much of the evidence of the Minister's immigration and RCMP witnesses. After denying that he ever was interviewed by Canadian officials for immigration to Canada during his discovery, he testified at trial that he was interviewed by three different people separately for his immigration to Canada. After his counsel stated at discoveries that Mr. Baumgartner was not referring to any Canadian immigration officials in his Statement of Defence, Mr. Baumgartner claimed at trial that he disclosed his military service in the Waffen S.S. to the Canadian officials who interviewed him.
[108] After he denied ever meeting with any Canadian immigration officials, he later stated at trial that he did have interviews and a medical examination. At discovery, Mr. Baumgartner specifically denied ever having had a medical examination by a Canadian medical official and ever being asked by Canadian officials about his wartime activities. Furthermore, Mr. Baumgartner stated at trial that he was interviewed by the RCMP while on board the ship travelling to Canada. There is no evidence before me of the RCMP conducting interviews on board ships.
[109] Mr. Baumgartner was not consistent in describing the events of his immigration process when he applied and was accepted to Canada. It is clear that, while there may have been some differences in how various posts operated, there were general procedures and guidelines in place in Europe in 1953. I note that some inconsistency in Mr. Baumgartner's testimony would be understandable, given the fact that these events occurred over 40 years prior to the statements given by him. However, Mr. Baumgartner was unable to provide clear or consistent answers on several key issues, leading me to conclude that much of his testimony was not credible.
[110] In my view, based on Mr. Baumgartner's own German passport and the testimony of Messrs. Lapierre, Gunn, Cliffe, Dubé and St. Vincent, Mr. Baumgartner must have applied for Canadian immigration, not in the manner described by him, but in the manner described by the former Visa Control Officers and Immigration Officers who testified at trial. First, he obtained an application form, OS-8, because he was not a sponsored immigrant. Second, he submitted the OS-8 and a security check was conducted by a Visa Control Officer in Karlsruhe, Germany, who would have supplied information from Mr. Baumgartner's OS-8 to security information sources who ran security checks on him. Mr. Baumgartner must have made his application to Karlsruhe, Germany before October, 1952 because he obtained his divorce certificate that month in order to submit it to Canadian immigration prior to his interview. Once the security check reports were received by Canadian officials, the Visa Control Officer in charge of Mr. Baumgartner's case informed the appropriate Immigration Officer who then invited Mr. Baumgartner to attend interviews at the Funk Kasserne in Munich. There, on March 11, 1953, Mr. Baumgartner underwent a medical examination conducted by a medical officer, Dr. Cooper; was interviewed by a Visa Control Officer; and was then interviewed by an Immigration Officer, Mr. Lapierre. He was also briefly interviewed at the Port of Entry where he became legally landed in Canada.
[111] I agree with the Minister's submissions regarding Mr. Baumgartner's credibility, and make special reference to the fact that Mr. Baumgartner seems to have a history of lying to various authorities in order to obtain what he wants. He admitted at trial that he lied in order to hide his previous membership in the Waffen S.S. on his application for assistance to the International Refugee Organization (I.R.O.), wherein he stated that he was continuously in Hungary until May, 1943 at which time he joined the Hungarian Army, only to return to Hungary in March, 1945. He stated at trial that this was the only time he had lied about his military service and that he did so in order to be reunited with his wife and child. The Minister submits that Mr. Baumgartner also lied about his military service to the Residence Registration Office of the City of Coburg, Germany. A letter dated February 1, 1949 from the City Council of Coburg to the International Refugee Organization states that Mr. Baumgartner had given the City information to the effect that he had served in the Romanian and then the Hungarian armies in 1942, 1943 and subsequently. At trial, Mr. Baumgartner agreed that the contents of the letter concerning his personal information were correct excepting the statement concerning his military service during the war. It seems clear that Mr. Baumgartner lied both to the I.R.O. and the City of Coburg regarding his military service in order to obtain a place in the I.R.O. camp. Mr. Baumgartner's track record further impeaches his credibility regarding his testimony concerning what information concerning his wartime military service he actually disclosed to Canadian immigration officials. Furthermore, even if Mr. Baumgartner disclosed his military service in the Waffen S.S. he would not have disclosed his service as a guard in a concentration camp to any Immigration or Visa Control Officer since he has never admitted to serving in a concentration camp.
The Stage B Criteria for Inadmissibility in Place, March, 1953
[112] There was some dispute as to the criteria for inadmissibility in place at the time Mr. Baumgartner was interviewed and security screened. This issue was raised in light of both parties' submissions concerning Mr. Baumgartner's military service during the second world war. Would his admitted service in the Waffen S.S. have lead to his inadmissibility? Given that Mr. Baumgartner himself claims that he was indeed asked about his military service, as well as this Court's finding that he served as a concentration camp guard, would his failure to disclose that he was a concentration camp guard be classed as a material misrepresentation that led to his gaining landed status in Canada and, subsequently, Canadian Citizenship? In order to address these questions, I propose to give a brief overview of the structure of the decision-making bodies who set the criteria; how the criteria were established; and the actual criteria in place at the time Mr. Baumgartner was interviewed in March, 1953.
The Security Panel and the RCMP:
[113] A key issue here is the nature of the relationship between the Security Panel, which set the criteria for inadmissibility, and the RCMP, which enforced these criteria on the ground. That is, which organization was responsible for setting the actual criteria that were in place when Mr. Baumgartner passed through Stage B interviews and screening in March of 1953? I accept the testimony of Mr. D`Ombrain that the RCMP was responsible for the implementation of the criteria, which were established by the Security Panel. In his view, the Panel`s decisions were authoritative. At trial, Mr. D`Ombrain stated that the RCMP`s role was "to go to the Security Panel and get their advice and interpretation and act in accordance with that because the views of the panel were authoritative. But the RCMP were responsible for putting together the actual criteria and ensuring that there they were comprehensive and so forth."
[114] Mr. D`Ombrain testified regarding the cabinet bodies that were set up to decide upon immigration security issues in the post World War II period, namely the Cabinet Committee on Immigration and the Security Panel, both operating under the auspices of the Privy Council Office. Mr. D`Ombrain served in various senior positions in the Privy Council Office, including as Assistant Secretary to the Cabinet for Security and Intelligence. He was qualified to give expert evidence regarding cabinet processes. According to Mr. D`Ombrain`s testimony, the Security Panel was established in 1946 in order to co-ordinate all security arrangements related to physical, personal and information security of the federal government. The Panel reflected the central responsibility of the Prime Minister for matters of security, and the Prime Minister and his officials were seen as having particular responsibilities for ensuring the effectiveness of Canada's security and intelligence arrangements. The Panel was chaired by the Secretary to the Cabinet, the most senior official in the service of the Government of Canada. It was attended by the expert heads of the security organizations of the government, notably the RCMP, the three branches of the armed forces, the Defence Research Establishment, the Department of External Affairs and other departments and agencies as necessary, including the operation head of the Immigration Branch. The Security Panel operated relatively independently of the rest of the Cabinet decision-making system, including the Cabinet Committee on Immigration, which developed policy with respect to security clearance. The Panel specifically addressed how security requirements would be handled. When the Panel identified that there were several potential problems with the legislation in place in that it may not afford adequate authority for security screening procedures, the Cabinet decided that any problems would be handled by administrative measures rather than legislative amendments.
[115] In February of 1947, Cabinet decided that the Royal Canadian Mounted Police (RCMP) would conduct security screening processes, which would be applied to all persons from former enemy countries including, inter alia, Germany, Austria and Italy. According to Mr. D`Ombrain, the Cabinet decided that criteria for the rejection of potential immigrants would be developed and applied by the RCMP at its discretion. The rejection criteria were altered by Privy Council Orders, so that there was a diminishing over time of the numbers of classes of persons that would be denied entry into Canada. For example, in September of 1950, P.C. Order 4364 removed German nationals from a blanket prohibition policy. The Security Panel then determined that certain classes of German Nationals would be inadmissible, including, inter alia, members of the S.S., Waffen S.S., Abwehr, and Gestapo. In April, 1950, an Order-in-Council was passed stating that non-Germans who had served in the German forces under compulsion were no longer subject to a blanket prohibition. In July, 1951, an interim decision of the Security Panel Secretariat stated that non-German members of the Waffen S.S. who joined prior to January 1, 1943 would no longer be automatically rejected. Instead, if these persons could satisfy the Visa Control Officer that they were compelled to join the Waffen S.S., they could obtain landing in Canada. However, German nationals who had joined the Waffen S.S. were still subject to automatic rejection. Mr. Baumgartner was a German citizen.
May, 1952 Security Panel Policy Change Regarding Admissibility
[116] The Security Panel issued rejection criteria in May, 1952 which removed the blanket prohibition of former Nazi party members. Only those who had been classified as "major offenders" or "offenders" pursuant to Allied Control Directive No. 38 would be prohibited entry. Membership in the Waffen S.S. was no longer an automatic bar to entry, as the new policy stated that those non-Germans who had been compelled to join the Waffen S.S. were not to be denied entry based on their membership in the Waffen S.S. during the war. At its May 15, 1952 meeting, the Security Panel amended the rejection policy. The minutes from the meeting state:
5. The Panel then considered the paper in detail, made a number of recomendations after discussion, and agreed that the following persons would 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 Directive No. 38 of 12th October 1946, was classified as a Major Offender or Offender or who, on the evidence before a Security Officer is in his opinion within either or these categories. Particular care should be taken to exclude persons who were responsible for brutalities in concentration or labour camps.
(b) Former members of the Waffen S.S. except:
i) German nationals who joined before the age of 18, when there are reasonable grounds for believing they were conscripted or joined under coercion.
ii) Volksdeutsche formerly residing in German occupied territory, whether they were subsequently naturalized German or not, when there are reasonable grounds for believing they were conscripted or joined under coercion.
iii) Volksdeutsche and other nationalities who were resettled and naturalized German before joining, when there are reasonable grounds for believing that naturalization was not of their own choosing, and reasonable grounds for believing they were conscripted or joined under coercion.
iv) German nationals, Volksdeutsche formerly residing in territory not occupied by the Wehrmacht, whether subsequently naturalized German or not, or other nationalities, when any of these persons can satisfy the Security Officer that they were conscripted or joined under coercion.
[117] This was the guideline used by Mr. Kelly in the "Reasons for Rejection" that he issued to his Visa Control Officers in Europe, thereby implementing the policies stemming from the Security Panel's May 15, 1952 meeting. Mr. Kelly testified that the information coming out of the Security Panel's May 15, 1952 meeting would have been sent to Visa Control Officers at Karlsruhe, Germany sometime in 1952. On this evidence, these criteria were in place by the date of Mr. Baumgartner's interview on March 11, 1953.
Criteria in Place Prior to May 15, 1952 Security Panel Policy Change:
[118] The Defendant submits that there is no hard evidence to prove that Mr. Kelly's January, 1953 "Reasons for Rejection" criteria were in place in Munich, Germany by the date of Mr. Baumgartner's interview (March 11, 1953). Thus, submits the Defendant, the Visa Control Officers must have been using the Security Panel criteria set out at the May 15, 1952 meeting. However, it seems more probable that the Visa Control Officers would be using the 1948 rejection criteria up until the time they received Mr. Kelly's "Reasons for Rejection". That is, there is no evidence nor reason to believe that the Visa Control Officers in the field were aware of the Security Panel's actual policy decisions. These Officers were made aware of rejection criteria through the RCMP hierarchy, and would have received instructions from Mr. Kelly himself. As such, I will evaluate Mr. Baumgartner's case based on both the November, 1948 rejection criteria and Mr. Kelly's 1953 "Reasons for Rejection."
[119] The earliest rejection criteria were set out in a November, 1948 RCMP memorandum entitled "Screening of Applicants for Admission to Canada". These criteria were amended slightly to loosen the criteria by lifting the total ban against admitting all former members of the Nazi Party and allowing non-Germans who had joined the Waffen S.S. after January 1, 1943 admission to Canada if they could demonstrate to the Visa Control Officer that they were coerced into joining up. However, all other former members of the S.S., Waffen S.S., Abwehr, S.D., Gestapo and other important or dangerous Nazis remained inadmissible. The 1948 criteria included the following provision:
REASONS FOR REJECTION.
...
(b) Member of SS or German Wehrmacht.
Found to bear mark of SS Blood Group (Non Germans)
By July, 1951, this portion of the rejection criteria had been amended as follows:
Non-German members of Waffen S.S. who joined that organization prior to January 1st, 1943, will remain blanket rejects. Non-German members of Waffen S.S. who joined after January 1st, 1943, will be required to satisfy the Security Officer that they were drafted and did not enlist voluntarily.
If the Defendant is correct in stating that Mr. Kelly's rejection criteria were not in place in Karlsruhe, Germany at the time of Mr. Baumgartner's interview, then his case must be evaluated on the above criteria. It is clear that Mr. Baumgartner would not have been admitted to Canada based on the above criteria, given that he enlisted prior to the January 1, 1943 cut-off date. However, in the interests of certainty and completeness, I will also assess the matter against Mr. Kelly's criteria.
Mr. Kelly's Reasons for Rejection:
[120] On the other hand, if indeed Mr. Kelly's updated Reasons for Rejection were in place in Karlsruhe by March 11, 1953, then Mr. Baumgartner would have been assessed on these criteria. Mr. Kelly sought to clarify the Security Panel`s criteria in order to make it easier for the Visa Control Officers to implement them on a daily basis. This entailed some re-wording of the criteria on Kelly`s part and resulted in his "Reasons for Rejection" which was issued to the Visa Control Officers in the field sometime in early 1953. This document listed classes of persons to be denied entry pursuant to the Security Panel`s new rejection criteria policy. A portion of Kelly's Reasons for Rejection is reproduced below for ease of reference:
REASONS FOR REJECTION
Reasons for Rejection are as follows:
1. (I) Communist, known or suspected.
(II) Communist agent, known or suspected.
(III) Communist agitator.
(IV) Communist sympathizer.
B. Former members of:
(I) The Allgemeine S.S. All former members.
(II) The S.A. All Officers down to Unteroffizier and all members who joined prior to 1 April, 1933 regardless of rank.
(III) The S.D. All former
members.
(IV) The Abwehr All former
members.
(V) The Gestapo All former
members.
(VI) The Waffen S.S. All former members down to the rank of Unteroffizier, regardless of conscription or coercion.
All former members below the rank of Unteroffizier unless there are reasonable grounds for believing that the man was conscripted or joined under coercion.
As a practical guide it will be taken that there was no conscription or coercion before 31 December, 1943.
All former members of the TOTENKOPFVERBANDE and concentration camp personnel.
C. The N.S.D.A.P. and affiliated organizations.
Former members who held an important rank or who were particularly active.
....
[121] The "Reasons for Rejection" document included Kelly`s direction to the Visa Control Officers that Waffen S.S. who had joined up prior to December 31, 1943 were considered voluntary enlisted men, not conscripted men. As such, Kelly issued a direction to his Visa Control Officers such that "it will be taken that there was no conscription or coercion before 31 December, 1943". Kelly asserted that this constituted a direction to his Visa Control Officers which they were expected to follow. He based the guideline on the RCMP`s information that no coercion or conscription of Waffen S.S. members occurred prior to the date of December 31, 1943. Mr. Poole, a former Visa Control Officer, testified that if a potential immigrant had joined the Waffen S.S. prior to January 1, 1944, that person would automatically be rejected, even if there was a suggestion that the person may have been conscripted or coerced into joining.
[122] The Defendant submits that the criteria set by the Security Panel in May, 1952 (and sent to Kelly in a letter dated August 1, 1952) are authoritative. The Defendant also submits that Kelly's "Reasons for Rejection" contradict the Security Panel's policy regarding loosening the blanket ban against former members of the Waffen S.S. I find that Mr. Kelly's directions do not contradict the Security Panel's policy. His "Reasons for Rejection" are simply a practical enunciation of Security Panel policy, written in a way that makes that policy applicable on the ground, by officers in the field. The guideline to the effect that those who joined the Waffen S.S. prior to December 31, 1943 were to be taken to have joined voluntarily was consistent with the RCMP information regarding conscription in the Waffen S.S. In fact, Mr. Kelly clearly states that he wants the Visa Control Officers to apply the Security Panel's policy of rejecting "[a]ll former [Waffen S.S.] below the rank of Unteroffizier unless there are reasonable grounds for believing that the man was conscripted or joined under coercion." He simply provides his Visa Control Officers with a 'practical guide' to the effect that, based on the RCMP's best information, all those who joined the Waffen S.S. prior to December 31, 1943 will be taken to have joined up voluntarily. The coherence between the Security Panel's policy and Mr. Kelly's practical criteria is supported by the passage taken from the "Memorandum to the Security Panel: Immigration Security Policy - Nazis, Fascists and Colloborators" document that I referred to in the section of these reasons concerning the May, 1952 Security Panel meeting. For all of these reasons, I find the Defendant's submissions on this point unconvincing. Based on the rejection criteria, Mr. Baumgartner would not have been admitted to Canada if indeed he disclosed that he had been a member of the Waffen S.S. who joined prior to December 31, 1943. I find Mr. Baumgartner's testimony that he did disclose this information to the Immigration officials not credible, given that his voluntary participation in the Waffen S.S. would have rendered him inadmissible based on the rejection criteria in place in Karlsruhe, Germany, irrespective of whether the 1948 rejection policy criteria, or the 1952 rejection policy criteria or Mr. Kelly's 1953 "Reasons for Rejection", were in place on the actual date of his immigration interview and Stage B screening. As was stated earlier, Mr. Baumgartner was asked questions about his military service, but he did not answer them truthfully. He consistently denied during his testimony that he volunteered for the Waffen S.S. and further denied that he was ever a concentration camp guard.
[123] The Defendant also submits that Mr. Kelly's rejection criteria were not lawfully in place, given Mr. Kelly's 'admission' at trial that these criteria would have required approval from the Security Panel. The Defendant submits that the correspondence between the Officer in Command of the RCMP special branch, Mr. Hall, and Mr. Kelly in London, England, indicates that both Messrs. Hall and Kelly understood the authority of the Security Panel's criteria and thereby recognized that Mr. Kelly did not have the authority to create a differently-worded version of these criteria for his officers. In order to show that Mr. Kelly's criteria were not legally in place, the Defendant refers to correspondence dated August 1, August 20, and September 10, 1952. These letters show some dispute between Messrs. Kelly and Hall regarding the interpretation of the Security Panel's criteria.
[124] Mr. Hall wrote to Mr. Kelly on August 1, 1952, to formally advise Mr. Kelly regarding the decisions made by the Security Panel at its May, 1952 meeting. Mr. Hall outlines the four criteria concerning the Waffen S.S. as per the Minutes of the Security Panel Meeting of May, 1952, as reproduced above.
[125] Mr. Kelly wrote to Mr. Hall at the Special Branch asking for clarification of various points, including whether or not he could summarize the criteria concerning former members of the Waffen S.S. as such:
Former members of the Waffen S.S. will be rejected unless there are reasonable grounds for believing that they were conscripted or joined under coercion.
Mr. Hall then advised Mr. Kelly, in a letter dated September 10, 1952:
There are no blanket rejections of Volksdeutsche and naturalized Germans, the decision is left to the Security Officer. This matter was carefully analysed by the Panel and the decision laid down included all known categories. Your proposed abbreviation could open the field to categories not specifically defined, such as persons eligible to come forward by reason of their service under coercion, but who actually were responsible for brutalities, or other categories we are not aware of. We cannot see any advantage to the suggested abbreviation and feel that the detailed categories of former members as set out by the Panel would remove any possibility of a wrong interpretation on the part of the Security Officer.
[126] However, this issue is essentially a diversion from the essence of the matter before me. Mr. Kelly's "Reasons for Rejection" do not contradict the Security Panel's criteria, nor do they misstate the intention of either the Security Panel, nor the points made by the Officer in Command of the RCMP Special Branch in his correspondence to Mr. Kelly. Essentially, the "Reasons for Rejection" instruct Visa Control Officers that former members of the Waffen S.S. will not be accepted if they volunteered to serve in that division. All of the criteria indicated by Mr. Hall in his correspondence boil down to the fact that Waffen S.S. men were not to be admitted unless there was reason to believe that they had been coerced into joining the Waffen S.S. Mr. Hall's argument that Mr. Kelly's summary could "open up the field to categories not specifically defined" and thereby possibly lead to Visa Control Officers making erroneous decisions is unclear. In any event, in my view, his statement does nothing to aid the Defendant's case. Since I have already determined that Mr. Kelly's guideline indicating that those recruited into the Waffen S.S. prior to December 31, 1943 will be taken to be volunteers accords with the Security Panel's May, 1952 policy, and I have found that Mr. Baumgartner joined the Waffen S.S. of his own volition, the Defendant's argument cannot succeed. It is clear that the criteria as put in place by the Security Panel and the RCMP would have barred Mr. Baumgartner from entering Canada had he told the truth concerning his role as a member of the Waffen S.S. and as a concentration camp guard at Stutthof and Sachsenhausen concentration camps.
The Statutory Framework Concerning Revocation of Canadian Citizenship
[127] Pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, the duty of this Court is to determine whether or not Mr. Baumgartner obtained his Canadian citizenship by false representations or fraud or by concealing material circumstances. It is not the role of this Court to actually revoke Mr. Baumgartner's citizenship. Instead, this Court must make findings of fact that will be submitted to the Minister of Citizenship and Immigration for her review concerning the matter of revocation of citizenship, and she may then place the matter before the Governor-in-Council (Cabinet) for determination.
[128] This Court is concerned with determining whether or not Mr. Baumgartner has contravened the provisions of section 10 of the current Citizenship Act, in force at the time that these proceedings were commenced, which states:
| 10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship. |
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10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée :
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
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[129] Subsection 10(2) is a "deeming provision". That is, once the Court determines that a person has obtained landing in Canada by false representations or fraud or by knowingly concealing material circumstances, he or she is deemed to have obtained Canadian citizenship by similar means. As I have held in Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1, even without this deeming provision, a finding based on subsection 10(1) itself would suffice for the Minister's purposes. Under subsection 10(1), the Governor-in-Council may revoke a person's citizenship if it is satisfied that that person has obtained citizenship by false representation. That is, if a person is found to have made misrepresentations in order to obtain landing, he or she cannot legally obtain citizenship because a person must be legally landed in Canada before he or she can qualify for Canadian Citizenship. In any event, the deeming provision means that such an argument does not have to be made.
[130] In 1958, the year that Mr. Baumgartner applied for citizenship, the process for obtaining such was governed by section 10 of the Citizenship Act, R.S. 1952, c. 33. That section required various things of the applicant for citizenship, including that he or she had "acquired Canadian domicile" and that he or she was "of good character." "Domicile" was defined in the Immigration Act, R.S. 1952, c. 325 at subsection 2(b), which referred to the meaning at section 4 of that Act, which stated:
4(1) Canadian domicile is acquired for the purposes of this Act by a person having his place of domicile for at least 5 years in Canada after having been landed in Canada.
"Landing" was defined at subsection 2(n) of that Act as meaning "the lawful admission of an immigrant to Canada for permanent residence."
[131] Mr. Baumgartner obtained his visa and was subsequently landed at the Port of Entry by reason of the material misrepresentation of his military service during World War II. He was therefore not legally landed in Canada in 1953 and did not, therefore, obtain Canadian domicile. Due to these circumstances, he therefore did not lawfully acquire permanent residence, nor Canadian Citizenship.
[132] "Good character" was also required of a prospective citizen in 1959, according to section 10 of the Citizenship Act, R.S. 1952, c.33. As I held in the Bogutin case, this criterion is relevant in citizenship revocation proceedings. It is unlikely that Mr. Baumgartner would have been found to be of "good character" at the time of his application for Canadian Citizenship had he disclosed his roles as a concentration camp guard and voluntary member of the Waffen S.S. during the Second World War. It is probable that he also would have failed to meet such a criterion if it had been known that he had misrepresented these facts at his immigration and security clearance interviews and on his OS-8 application when he sought admission and permanent residence in Canada in 1952/1953. These holdings are supported by the negative credibility findings concerning Mr. Baumgartner's testimony at trial.
Did Mr. Baumgartner Materially Misrepresent his Military Service to Immigration Officials in March of 1953?
[133] At paragraph 387 of her submissions, the Minister states:
The VCO who interviewed the Defendant would have asked him about his military history and other relevant facts to determine if the Defendant was among those who were to be rejected on security grounds in accordance with the Reasons for Rejection sent to the field by Kelly shortly after the date of his letter of January 21, 1953. Cliffe testified that, as a VCO, these Reasons for Rejection were received by him in the field in early 1953. Had the Defendant disclosed the date when he was recruited into the Waffen SS to the VCO, the VCO would have automatically rejected him on security grounds because of the date of December 31, 1943, set out in the Reasons [for] Rejection. Had the Defendant disclosed that he had served as a concentration camp guard in Stutthof and Sachsenhausen concentration camps or that he had served in the SS Totenkopf Guard Battalion Sachsenhausen or the SS Totenkopf Battalion Stutthof, he would have been automatically rejected as well since all concentration camp personnel were automatic security rejects at the time of his interview in March 1953.
[134] However, the Defendant submits that it is unclear what specific rejection criteria were in place in Germany at the time of Mr. Baumgartner's interviews with Visa Control and Immigration Officers. However, I am satisfied that there was a general blanket rejection of former members of the Waffen S.S., including Volksdeutsche, who had joined prior to December 31, 1943. Such a criterion did not contradict the Security Panel's policy of permitting the entry into Canada of former members of Waffen S.S. whom the interviewing Immigration Officer reasonably believed to have been coerced into joining the Waffen S.S. The testimony of various witnesses, including Mr. Dubé, Mr. Lapierre, Mr. Gunn, and Mr. Cliffe, has satisfied me that the officers on the ground were enforcing this policy and would have excluded someone who was a former member of the Waffen S.S. and who had joined prior to December 31, 1943, unless there were reasonable grounds to believe that this person had been coerced into enlisting.
[135] Mr. Baumgartner stated that he told the interviewers in March, 1953 that he had served as a member of the Waffen S.S. 5th Wiking unit. He also testified at trial that he was coerced into joining the S.S. when German soldiers came to his village, Secunda, and bullied the locals until their sons joined up. I have already found Mr. Baumgartner's explanation concerning his being "forced" to join the Waffen S.S. not credible. I am satisfied that had Mr. Baumgartner told the Canadian immigration officials that he was a former member of the Waffen S.S. who had joined in 1942, he would not have been allowed to enter and land in Canada.
[136] At paragraph 181 of the Defendant's submissions, it states:
[Mr. Baumgartner's Discharge Certificate] is an important document as it was presented by Mr. Baumgartner to Canadian immigration officials and confirms Mr. Baumgartner's disclosure of his membership in the Waffen S.S.
Given my findings concerning the relevant rejection criteria in place at the time of Mr. Baumgartner's immigration to Canada, as well as Mr. Baumgartner's lack of credibility, I cannot agree with the Defendant's claim that Mr. Baumgartner showed Canadian Immigration officials his discharge certificate at the time of his interviews.
[137] The criteria are not absolutely clear as to whether or not there was an automatic ban preventing the entry into Canada of former concentration camp guards in 1953. Mr. Kelly's "Reasons for Rejection" state that former concentration camp personnel and former members of the Totenkofverbande were to be barred from entry. Mr. Cliffe testified that members of the Totenkopf division would normally be rejected, but he also indicated that there was some room for an applicant to argue that he had been coerced into joining the division and should therefore be admitted. The Defendant submits at paragraph 8 of written arguments, that "even if the Defendant has served as a concentration camp guard as alleged by the Minister, the proper criteria would have allowed him entry." However, this Court has found as fact that Mr. Baumgartner served as a concentration camp guard at both Stutthof and Sachsenhausen Concentration Camps. If he was asked about his military service during his immigration interview, as he claims he was, and he did not admit at that time that he worked as a concentration camp guard (which is what he did not admit at trial) then he committed fraud by material misrepresentation.
[138] In M.M.I. v. Brooks, [1974] S.C.R. 850, Laskin J., writing for the Court, held that untruths or misleading answers that in effect foreclose an avenue of inquiry may be material misrepresentations, even when the further inquiry might not have discovered any independent ground of deportation. Brooks, supra involved allegedly false answers given by the applicant on his application for admission into Canada. At 865-73, Laskin J. stated:
...An answer may be both false and misleading but the statute does not demand this combination. It may be the one or the other and still fall within the prohibition. Again, since criminal punishment is not the object of the enforcement of immigration and deportation policies by means of special inquiries, I cannot be persuaded that intentional or wilful deception would be read in as a prerequisite...
Lest there be any doubt on the matter as a result of the Board's reasons, I would repudiate any contention or conclusion that materiality under s. 19(1)(e)(viii) requires that the untruth or the misleading information may fall short of this and yet have been an inducing factor in admission. Evidence, as was given in the present case, that certain incorrect answers would have had no influence in the admission of a person is, of course, relevant to materiality. But also relevant is whether the untruths or the misleading answers had the effect of foreclosing or averting further inquiries, even if those inquiries might not have turned up any independent ground of deportation.
[139] The Minister brought to the Court's attention various cases that followed the principle enunciated in Brooks, supra, including the decisions in Hilario v. M.M.I., [1978] 1 F.C. 697 (T.D.); Khamsei v. M.E.I., [1981] 1 F.C. 222 (F.C.A.); Juayong v. M.E.I. (1988), 99 N.R. 78 (F.C.A.); Okwe v. M.E.I. (1991), 136 N.R. 261 (F.C.A.); and Mohammed v. Canada (M.C.I.), [1997] F.C.J. No. 605 (Q.L.). In not admitting that he was a concentration camp guard during the war, the applicant effectively prevented any questioning by the immigration officials (both the Immigration Officer and the Visa Control Officer) regarding the particulars of that service. Thus, it would have been impossible for the authorities to question him on what acts he had committed as a concentration camp guard, some of which may have rendered him inadmissible as an "offender" or "major offender" under the criteria established by the Security Panel at its May 15, 1952 meeting. I note that the Defendant submits that there was no duty of candour placed on Mr. Baumgartner at the time of his immigration interview, as per the decision of this Court in Secretary of State v. Luitjens (1991), 46 F.T.R. 267. I agree with this submission, but find that it is irrelevant in the present case, as Mr. Baumgartner himself testified that he was indeed asked about his military involvement during his immigration interviews in March, 1953.
[140] The Defendant submits at page 24, paragraph 50 of the Defendant`s written submissions that:
It cannot be inferred that the mere entry of Mr. Baumgartner into Canada was a result of a fraud unless the Court is satisfied that he would have necessarily been refused entry had his true situation been known which, in turn requires proof that the applicable rejection criteria, whatever that may have been, would have required the rejection of the Defendant.
However, as I already stated, it is not necessary to establish that Mr. Baumgartner would have been refused entry due to misrepresentation, but only that he withheld a material piece of information and thereby may have made it impossible for the Immigration Officers and the security officer to pursue an avenue of inquiry that may have revealed that Mr. Baumgartner was indeed inadmissible according to the Security Panel`s May, 1952 policy and the corresponding "Reasons for Rejection" criteria. As the case law cited above demonstrates, and contrary to the submissions of the Defendant, the Minister is not required to show in her pleadings that specified misrepresentations resulted in the landing of Mr. Baumgartner. Mr. Baumgartner, in not disclosing that he served as a concentration camp guard, circumvented an inquiry regarding the specific acts that he may have committed and the nature of his service in that capacity. Such inquiry may have uncovered information that would have rendered Mr. Baumgartner inadmissible. Thus, when Mr. Baumgartner failed to disclose his role as a concentration camp guard when he was asked about his military service during his March, 1953 interviews with Canadian officials, he committed a material misrepresentation which lead to his becoming landed in Canada and, later, to his obtaining Canadian Citizenship.
[141] Mr. Baumgartner gained admission to Canada for permanent residence by false representation or fraud or by concealing material circumstances contrary to the Citizenship Act. For greater certainty, I find that Mr. Baumgartner was not lawfully admitted to Canada and therefore did not acquire Canadian domicile and he was not a person of good character, which, as I stated earlier, is contrary to the legislation in force at the relevant times. Mr. Baumgartner was ineligible to apply for Canadian citizenship and I find that he obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.
[142] The parties may make written submissions to me if they cannot agree on costs.
"W.P. McKeown"
J.F.C.C.
Toronto, Ontario
August 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2701-97
STYLE OF CAUSE: The Minister of Citizenship and Immigration
- and -
Michael Baumgartner
PLACES OF HEARING: Windsor, Ontario
Quebec, Quebec
Ottawa, Ontario
Commission Evidence in Bad Arolsen, Germany
DATES OF HEARING: November 23,24,25,26,27, 1998
December 1,2,3,4,7,8,9,10,11, 1998
February 8,9,10,11, 1998
March 17, 1999
April 12,13,14,15,16, 1999
May 31, June 1, 1999
April 10,11,12, 2000
August 21,22,23, 2000 (Commission Evidence)
September 25,26,27,28, 2000
October 2,3,4, 2000
December 4,5,6, 2000
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE McKEOWN DATED: August 31, 2001
APPEARANCES:
Mr. Harley R. Nott and Mr. John Loncar For Plaintiff
Mr. Stephen Harvey and Mr. Frank Miller For Defendant
SOLICITORS OF RECORD:
Morris Rosenberg For Plaintiff
Deputy Attorney General of Canada
Belowus, Easton, English For Defendant
Windsor, Ontario
FEDERAL COURT OF CANADA
Date: 20010831
Docket: T-2701-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MICHAEL BAUMGARTNER
Respondent
REASONS FOR JUDGMENT
[1]Trial Transcript, Volume 3, Page 219.
[2]Trial Transcript, Volume 3, Page 233.
[3]Trial Transcript, Volume 3, Page 246, Lines 12-19.
[4]Trial Transcript Volume 3, Page 223, Lines 7-14.
[5]Trial Transcript, Volume 22, Page 2335, Line 14
[6]Trial Transcript, Volume 22, Page 2336, Line 21.
[7]Trial Transcript, Volume 22, Page 2350, Line 16.
[8]Trial Transcript, Volume 22, Page 2359, Line 25.
[9]Trial Transcript, Volume 22, Page 2361, Line 6.
[10] Trial Transcript, Volume 23, page 2416, line 2.