Date: 20060817

Docket: T-440-04

Citation: 2006 FC 994

Ottawa, Ontario, August 17, 2006

PRESENT:     The Honourable Madam Justice Snider

 

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

      Plaintiff

and

 

JURA SKOMATCHUK

  Defendant

 

REASONS FOR JUDGMENT AND JUDGMENT

I. Introduction

[1]        Mr. Jura Skomatchuk, the Defendant, is now 85 years old. Born in Zabje (Kolomea), Poland, now part of Ukraine, Mr. Skomatchuk is an ethnic Ukrainian. He arrived in Canada in May 1952 and became a Canadian citizen on October 19, 1957. Mr. Skomatchuk has lived in Ontario continuously since his arrival in Canada; he is now retired from the mining industry and living in Ontario.

 

[2]        The Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to revoke the Canadian citizenship of Mr. Skomatchuk on the basis that he was admitted to Canada and obtained his citizenship by false representations or fraud or by knowingly concealing material circumstances. Specifically, the Minister alleges that Mr. Skomatchuk failed to disclose the following activities during World War II:

 

(a)    his collaboration with German authorities;

 

(b)   his engagement, in 1943, as a guard at the Poniatowa Labour Camp, a forced labour camp in occupied Poland, after training at the SS Trawniki training camp; and

 

(c)    his engagement, in 1943, as a guardsman in an SS guard unit, at concentration camps in the German Reich.

 

[3]        From a procedural perspective, these proceedings began with a Notice, dated November 13, 2003, in which the Minister at that time (the Honourable Denis Coderre) advised Mr. Skomatchuk that he intended to ask the Governor in Council to revoke his Canadian citizenship on the basis of the above-noted allegations. Mr. Skomatchuk exercised his right to ask that the matter be referred to the Federal Court. The matter was then referred to the Federal Court by the issuance of a Statement of Claim filed March 1, 2004 by the Minister.

 

[4]        The hearing of this matter was held together with that of Canada (Minister of Citizenship and Immigration) v. Josef Furman (Court File No. T-560-04), because of the similarity in the evidence for both individual matters. However, these reasons and decision relate only to Mr. Skomatchuk.

 

[5]        For the reasons that follow, I am satisfied, on a balance of probabilities, that Mr. Skomatchuk was an SS Guardsman of the Third Reich and, as such, was engaged as a concentration camp guard. Mr. Skomatchuk failed to disclose that information to immigration officials at the time he came to Canada. In other words, Mr. Skomatchuk obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information. Given this conclusion, there is no need to consider the allegation of collaboration also put forward, but not strongly argued, by the Minister.

II. Approach to Analysis

[6]        As discussed in more detail below, the task that is assigned to this Court is to decide whether Mr. Skomatchuk obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (s. 18(1)(b), Citizenship Act, R.S.C. 1985, C-29 (the Citizenship Act, 1985)). Having heard and reviewed the evidence presented in these proceedings, I have concluded that my decision requires that I make a series of findings of facts that address the following questions.

 

1. Was an individual named “Skomatschuk” trained as an SS Trawniki Guardsman at the SS Trawniki Training Camp and did this individual participate, as a guard, at the Poniatowa Labour Camp, in occupied Poland, and as a guard at concentration camps in the German Reich?

 

2. Was Mr. Skomatchuk the same Guardsman Skomatschuk referred to in 1?

 

3. If it is shown that Mr. Skomatchuk is the same “Skomatschuk” Guardsman described in 2, above, did Mr. Skomatchuk conceal these wartime activities from Canadian immigration officials prior to coming to Canada?

 

4. If I find that Mr. Skomatchuk did not disclose his wartime position as a Guardsman with the German SS to Canadian immigration officials, what impact would that have had on his immigration to Canada and later acquisition of Canadian citizenship?

 

[7]        Before addressing these specific questions, it would be helpful to the reader to understand the legal framework under which this proceeding has been commenced. Further, as the most serious allegations by the Minister involve activities as a concentration camp guard, it may also be useful to have an overview of the system of concentration camps and labour camps in the territories held by the Third Reich. More specifically, since the alleged activities are associated with the SS Trawniki Training Camp, I will include an overview of the history of and procedures for training and use of Trawniki guardsmen.

 

[8]        These reasons are organized as follows, with each section commencing at the paragraph noted.

 

I.     Introduction................................................................................[1]

II.   Approach to Analysis......................................................................[6]

III.  Legal Framework .........................................................................[9]

A.  Procedural Rights.....................................................................................[9]

(1) Section 10(1) of the Citizenship Act, 1985................................................[10]

(2) Deeming Provision of s. 10(2) of the Citizenship Act, 1985.....................[12]

(3) Section 18 Notice..................................................................[13]

(4) Effect of Court’s Determination under s. 18...................................[15]

B.  Substantive Rights.......................................................................[16]

(1) Section 10(1) of the Citizenship Act, 1948.....................................................[17]

(2) Meaning of “lawfully admitted”...................................................[18]

C. Burden and Standard of Proof.........................................................[21]

IV.  Historical Context...........................................................................[26]

A.  Witnesses..............................................................................................................[26]

B.  Concentration and Labour Camp System of the Third Reich.....................[32]

(1) General Description of Camps....................................................[32]

(2) Administration of the Camps in the General Government......................[38]

(3) Camp System in the Lublin region of the General Government...............[44]

(4) Operation Harvest Festival.........................................................[47]

(5) Trawniki Training Camp and Sources of Guardsmen ..........................[49]

(6) Trawniki Processing of and Documentation for Guardsmen Trainees........[55]

(7) Role of Guardsmen..................................................................[61]

(8) Integration with SS Death’s Head Units..........................................[65]

V.   Background and Role of Mr. Skomatchuk in World War II...........................[68]

A.  Guardsman Skomatschuk..............................................................[74]

(1) Transfer Lists........................................................................[75]

(2) Arrival at SS Trawniki Training Camp...........................................[78]

(3) Transfer to Poniatowa..............................................................[82]

(4) Transfer to Trawniki...............................................................[86]

(5) Transfer to Sachsenhausen.........................................................[91]

(6) Transfer to Mauthausen Concentration Camp...................................[95]

(7) Conclusion...........................................................................[99]

B.  Identity of Guardsman Skomatschuk....................................................[101]

(1) Birth Record........................................................................[103]

(2) Links between Mr. Skomatchuk and Guardsman Skomatschuk..............[116]

C.  Conclusion...................................................................................[135]

VI.  Immigration of Mr. Skomatchuk to Canada.................................................[136]

A.     Evolution of Canada’s Immigration Policy.............................................[140]

B.     Role of RCMP..............................................................................[147]

C.     Grounds for Rejection......................................................................[155]

D.     RCMP Security Screening by Mr. Owens................................................[173]

E.      Officer’s Exercise of Discretion...........................................................[186]

F.      Conclusion...................................................................................[191]

VII.  Summary of Findings...........................................................................[192]

VIII. Overall Conclusion................................................................................[193]

 

III. Legal Framework

A. Procedural Rights

[9]        With respect to the legislation that governs these proceedings, the procedural rights of Mr. Skomatchuk are governed by the legislation in force when the citizenship revocation proceedings are initiated. In this case, the relevant provisions are ss. 10 and 18 of the Citizenship Act, 1985. These provisions are set out in full in Appendix A to these reasons.

 

            (1) Section 10(1) of the Citizenship Act, 1985

[10]      Pursuant to s. 10(1) of this Act, the Minister may make a report to the Governor in Council to the effect that a person has obtained their citizenship “under this Act” by false representation or fraud or by knowingly concealing material circumstances. If the Governor in Council is then satisfied that the person obtained their citizenship in such a manner, “the person ceases to be a citizen”.

 

[11]      It is settled that the expression “under this Act”, where it appears in s. 10(1) of the Citizenship Act, 1985, must be interpreted as “under this Act, the Citizenship Act, as enacted from time to time” (Canada (Minister of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J. No. 1428 (QL) at para. 113). That is, a misrepresentation under a former Citizenship Act is caught by s. 10(1) of the Citizenship Act, 1985.

 

            (2) Deeming Provision of s. 10(2) of the Citizenship Act, 1985

[12]      It may be the case that a person did not directly lie or conceal information at the time of obtaining Canadian citizenship but did so to the overseas immigration officer who approved him for entry into Canada. This situation is addressed in s. 10(2). Pursuant to this provision, a person is deemed to have obtained his citizenship by 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, because of that admission, subsequently obtained his citizenship.

 

            (3) Section 18 Notice

[13]      Section 18 of the Act requires that, before the Minister makes a report to the Governor in Council, he must give notice of his intention to do so to the person concerned. That person may then request that the question of whether he obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances be referred to this Court. If this Court decides in the positive, the Court’s decision will form the basis of the Minister’s report.

 

[14]      In this proceeding, Notice under s. 18 was signed by the Minister on November 13, 2004 and provided to Mr. Skomatchuk. By Notice of Request, Mr. Skomatchuk requested that the Minister refer this case to the Federal Court.

 

            (4) Effect of Court’s Determination under s. 18

[15]      The Court’s determination does not, in itself, constitute a decision to revoke or terminate the citizenship of a person. Rather, the decision of this Court provides the Minister with a factual basis for the report and may constitute the foundation of a decision of the Governor in Council. Only the Governor in Council has the duty and power to decide whether to revoke citizenship. While the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)), a decision of the Governor in Council may be judicially reviewed (see for example, Oberlander v. Canada (Attorney General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL)).

 

B. Substantive Rights

[16]      With respect to substantive rights in relation to the acquisition of citizenship, I must examine the legislation in force at the time citizenship was acquired. Citizenship, in this case, was acquired in 1957. Accordingly, the two Acts that govern are the Canadian Citizenship Act, R.S.C. 1952, c. 33, proclaimed in 1948, (the Citizenship Act, 1948) and the Immigration Act, R.S.C. 1952, c. 325, also proclaimed in 1948 (the Immigration Act, 1948).

 

            (1) Section 10(1) of the Citizenship Act, 1948

[17]      Section 10(1) of the Citizenship Act, 1948 sets out the criteria that were to be satisfied, in 1957, in order to be granted a certificate of citizenship. The provision is set out in full at Appendix A. Of particular relevance to these proceedings, Mr. Skomatchuk had to satisfy the Minister that he had been “lawfully admitted to Canada for permanent residence” (s. 10(1)(b)) and that he was of “good character” (s. 10(1)(d)). Obviously, there are other criteria such as adequate knowledge of English and French and adequate knowledge of responsibilities and privileges of Canadian citizenship; they are not at issue in this case. In effect, the lawfulness of admission to Canada is a condition precedent to the acquisition of Canadian citizenship.

 

            (2) Meaning of “lawfully admitted”

[18]      To establish what is meant by the term “lawfully admitted”, I must turn to the Immigration Act, 1948. In s. 2(n), “landing” is defined as “the lawful admission of an immigrant to Canada for permanent residence”.

 

[19]      For admission to Canada, an individual was required to undergo an examination before an immigration officer to determine whether he “is or is not admissible to Canada” (Immigration Act, 1948, s. 20(1)). Section 20(2) requires that the person “shall answer truthfully all questions put to him . . . and failure to do so . . . shall, in itself, be sufficient ground for deportation”. Of further interest is s. 50(f) which stipulated that every person who "knowingly makes any false or misleading statement at an examination or inquiry under this Act or in connection with the admission of any person to Canada or the application for admission by any person” was guilty of an offence under the Immigration Act, 1948.

 

[20]      In sum, the scheme in 1957 was clear; misrepresentation during the examination for landing was not to be condoned. A person who lied or withheld material facts from the immigration officers before whom he appeared for examination was not “lawfully admitted” to Canada (Canada (Minister of Citizenship and Immigration) v. Bogutin, [1998] F.C.J. No. 211 (QL) (F.C.T.D.) at para. 126) and, thus, was in breach of the Citizenship Act, 1948.

 

C. Burden and Standard of Proof

[21]      The burden of proof clearly rests with the plaintiff Minister.

 

[22]      For purposes of defining the appropriate standard of proof, it is important to note that this is a civil proceeding rather than criminal.

 

[23]      In one of the first cases of this type – Canada (Secretary of State) v. Luitjens (1991), 40 F.T.R. 267, [1991] F.C.J. No. 1041 (F.C.T.D.) – the Court found that the standard of proof that the plaintiff had to meet was what the Court called “high degree of probability”. This has been rejected in the jurisprudence that has followed where the standard of proof has now been held to be that of balance of probabilities Bogutin, above at para. 110; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 (QL) at para. 7; Canada (Minister of Citizenship and Immigration) v. Baumgartner, 2001 FCT 970, [2001] F.C.J. No. 1351 (QL) at para. 8; Canada (Minister of Citizenship and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 (QL) at para. 13; Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (QL) (F.C.T.D.) at para. 187; Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824 (QL) (F.C.T.D.) at para. 5; and Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 (QL) (F.C.T.D.) at para. 38).

 

[24]      Thus, it is well established that, for a proceeding of this nature, the standard of proof is the civil standard of balance of probabilities. In a case, such as this, however, where the allegations of conduct are morally blame-worthy and have serious consequences for the defendant, the jurisprudence teaches that I take great care in assessing the evidence (see, for example Odynsky, above at para. 13).

 

[25]      The balance of probabilities standard will be met if the Court is satisfied, on the evidence, that the existence of a fact in dispute is more probable than not. In other words, based on the evidence before this Court, I must find that the event or fact in dispute is not only possible but probable (Obodzinsky, above at paras. 8-9). In this context of serious allegations and consequences for the individual, the inherent probability or improbability of an event is itself a matter to be taken into account (Re H (minors), [1996] A.C. 563 (H.L.)).

 

IV. Historical Context

A. Witnesses

[26]      Two witnesses presented by the Minister were particularly helpful with respect to the historical context of these proceedings.

 

[27]      The first of these witnesses was Dr. Johannes Tuchel, an historian. In these proceedings, he was qualified as an expert witness to testify with respect to the following:

 

·        the terror apparatus of the Third Reich;

 

·        the history of World War II;

 

·        general information about concentration camps and the concentration camp system, including camps at Trawniki, Poniatowa, Flossenbürg, Sachsenhausen and Mauthausen and related satellite camps;

 

·        the role of Trawniki guards in the Third Reich; and

 

·        the liquidation or “cleansing” of the ghettos of Warsaw and Bialystok.

 

[28]      In addition to Dr. Tuchel’s oral testimony, the Minister presented into evidence a document entitled “The Deployment of SS Guardsmen (SS-Wächmanner) from Trawniki in National Socialist Concentration Camps”, dated October 2005 and prepared by Dr. Tuchel (the Tuchel Report).

 

[29]      The second witness was Dr. Jack Terry. Dr. Terry was born March 10, 1930 in Belzyce, Poland, about 20 kilometres from Lublin. He testified as to the conditions in labour and concentration camps of the Third Reich and as to the role of Ukrainian guardsmen.

 

[30]      Dr. Terry is a Jew. On May 8, 1943, the remaining residents of his town were rounded up by a team consisting of an SS member named Reinhold Feix and 24 Ukrainian guards. Those who were not fit for labour, such as older women and children, were executed outright. Others were forced to dig their graves and sent to labour camps. Dr. Terry was sent to Budzyn where he remained until April 1944. At that time, he was transferred to Wieliczka, a salt mine near Krakow, where he worked 600 metres below ground in a Nazi airplane factory. His last destination was the Flossenbürg concentration camp where he arrived on August 4, 1944. At this camp, he worked in a stone quarry for two weeks and, thereafter, in an underground Messerschmitt factory. When the camp was liberated on April 23, 1945 by the American Army, it appears that Dr. Terry was the only surviving Jew at the camp; all others were evacuated and “taken on the death march” in the days preceding the liberation.

 

[31]      Dr. Terry’s direct and compelling testimony affirmed the well-known view of the brutal treatment of inmates in concentration camps during World War II. Further, his testimony reminds us of why persons associated with the administration of the camps were not welcome in Canada.

 

B. Concentration and Labour Camp System of the Third Reich

            (1) General Description of Camps

 

[32]      Dr. Tuchel provided a robust history of the purpose and structure of the concentration camp system in the Third Reich, and drew to the Court’s attention the distinction between the main camp system within the expanding borders of Germany itself, and a separate system located in the German-occupied region of Poland known as the “General Government” (Generalgouvernement). The Nazi government utilized concentration camps as a tool of control and oppression from the early 1930s onward. As early as February 1933, the second commandant of the Dachau concentration camp, Theodor Eicke, had established “a standardized system of violence... to ensure a maximum of systematic brutality against the inmates” (Tuchel Report at 60).

 

[33]      There were three general types of war-time camps:

 

·      Labour camps – Jews performed forced labour in these camps, supporting German industry, but were not necessarily confined to the camps. Initially, these camps were not part of the concentration camp system. Two labour camps, located at Poniatowa and Trawniki, in occupied Poland, are of relevance to these proceedings.

 

• Concentration camps – These were incarceration camps. Many types of prisoners were confined to these camps, including Jews, Poles, Russians, and Germans. By 1942, forced labour was introduced to these camps. Many inmates died from starvation, disease, and murder. Of particular importance to this inquiry are two concentration camps:

 

• Sachsenhausen, located at Oranienburg, near Berlin, constructed in 1936; and
• Mauthausen, located near Linz in Austria, built in 1939.

 

• Extermination camps – the sole purpose of these camps was to exterminate all Jews that arrived through their gates. These camps are distinguished from concentration camps by their single, genocidal purpose. Extermination camps were located in the General Government (occupied Poland).

 

[34]      Ghettos were a fourth type of confinement for Jews in the area of the General Government. In this system, Jews were restricted to a relatively small section of a city. Ghettos served as a source of slave labour for German industries, but also as a way to concentrate Jews and make it easier to transport them to labour, concentration or extermination camps.

 

[35]      In the pre-war period, and until 1942, the objectives of the camps were to suppress political enemies and suppress opposition in occupied countries. It was in 1942 that concentration camps also became labour camps, and inmates were forced to work for the German arms industry. Dr. Terry testified that “living conditions” was the wrong term for life in the concentration camps; the conditions were anything but suitable for life. Starvation was the norm and hygiene was impossible. Dr. Terry explained that the German camp policy was “extermination through work.” 

 

[36]      It is clear from the evidence of both Dr. Tuchel and Dr. Terry that mass murder was the overall goal of the camp system. As Dr. Tuchel testified, extermination camps had “only one purpose, to kill people”. SS documents recovered after the war indicate the deliberate brutality of the camp conditions; the Jewish labour was to be “literally exhaustive... The working hours are not subject to any limitations” (Tuchel Report at 63).

 

[37]      From 1942 onward, concentration camps continued to grow with the influx of Eastern European prisoners. The major camps grew in size and a network of “satellite camps” sprang up; these smaller camps were located near a major concentration camp and fell under its administration. For example, the Gusen camp was an Austrian satellite camp attached to the larger Mauthausen concentration camp.

 

            (2) Administration of the Camps in the General Government

[38]      All of the camps in Germany and German-occupied lands fell under the responsibility of Heinrich Himmler, Reichsführer SS and Chief of German Police and Gestapo (secret police).

 

[39]      In the General Government, the Head SS and Police Leader (HSSPF) had jurisdiction over the exploitation of Jewish forced labour generally, and over the labour and concentration camp system in that region. The General Government was divided into several administrative districts, one of which was the Lublin district. Each district was controlled by an SSPF (SS and Police Leader). The SSPFs directly oversaw the camps in their regions and answered to the HSSPF and, above him, to Heinrich Himmler.

 

[40]      In the General Government, between 1939 and 1941, Jews were consolidated into forced labour groups and ghettos, and moved to a growing network of labour and concentration camps. In late 1941, extermination camps were also developed in this region. The General Government had been chosen as the region to carry out the genocidal objectives of the Nazi and SS leaders. Since mass executions were proving too difficult and too public, the “Final Solution of the Jewish Question” was determined at the Wannsee Conference on July 31, 1941: to evacuate Jews to eastern occupied Poland, where they could all be killed in the camps.

 

[41]      This “Final Solution” was carried out under the code name Operation Reinhard (“Aktion Reinhard”). This operation saw the construction of, among others, the three extermination camps in the Lublin region – Belzec, Sobibor, and Treblinka – and the murder of over 1.7 million Jews. Operation Reinhard commenced in late 1941 and continued until October 1943. After that time, the extermination camps in the Lublin area were shut down and disguised as farms, and a skeleton guard was left at those locations.

 

[42]      It is important to note that the concentration camp system throughout Germany and the occupied territories was entirely under the supervision and control of Heinrich Himmler and therefore the SS and German Police. In autumn 1943, administration of the camps was shifted from the SSPFs to the newly-formed SS Economic and Administrative Main Office (SS-WVHA, or “SS-Wirtschafts-Verwaltungshauptamt”), Administrative Group D. This administrative change emphasized the growing importance of forced labour to the Third Reich and the escalation of genocidal policies.

 

[43]      German Guard Units in the camp system were called the “Totenkopfverbande” or “SS Death’s Head Units” (and later “SS Death’s Head Battalion”) by order of Himmler himself. The SS Death’s Head Units were specifically separated from the Armed Forces and the Police; they were to become the core of an SS elite troop. The original German members of this Unit were marked by “blood” tattoos, which indicated their blood types.

 

            (3) Camp System in the Lublin Region of the General Government

[44]      The Lublin region contained all three types of camps. There were labour camps such as Poniatowa, Budzyn, and the Trawniki labour camp (see below; this labour camp was attached to the Trawniki Training Camp for guardsmen). There were also concentration camps, such as the Lublin concentration camp. Finally, there were extermination camps such as Belzec, Sobibor, and Treblinka. All of these camps were under the supervision of the SSPF Lublin.

 

[45]      In 1942 and early-to-mid 1943, the process of evacuation or “cleansing” of Jewish ghettos throughout the General Government took place. The goal was to empty the ghettos and move all Jews to the camps and, eventually, kill them. Jews were forcibly rounded up and sent to concentration or extermination camps, including the Poniatowa and Lublin concentration camps and the Treblinka extermination camp.

 

[46]      In September 1943, the General Government concentration camp administration was placed under the SS-WVHA. At this time, many people from the occupied territories were taken from their homelands and forced to work for Germans in other parts of Europe; those who protested or did not work hard enough were sent to the concentration camps. This change also eliminated all labour camps; only concentration camps and extermination camps were to exist from that point on. Accordingly, all labour camps in the Lublin region, including Poniatowa and Trawniki, were converted to concentration camps and placed under the administration of the larger Lublin concentration camp.

 

            (4) Operation Harvest Festival

[47]      Following closely on the heels of the change in camp administration, Operation Harvest Festival (“Aktion Erntefest” in German) took place on November 3 and 4, 1943, with the intent of exterminating the Jewish populations in a number of concentration camps. Dr. Tuchel explained the reasoning behind the timing and motivation of this event:

 

First, why did the Germans carried out this Operation Harvest Festival?  You have some uprising, especially in the Sobibor extermination camp in August 1943. Because the leaders of the SS and Police, especially Himmler himself, had the fear that there could be other uprisings, they decided to kill all Jews who stayed in the labour camps.

 

So you have different decisions in the year 1943. First, to place all Jews in labour camps. Then in September they made it satellite camps of a concentration camp. Then one month later, they decided to kill them all because they had the fear of another uprising in these Jewish camps. Maybe 400 guards - it's a high estimation - maybe a little less than 400 guards for a camp with 14,000 Jews, so they fear another uprising. That's why they implemented the Operation Harvest Festival and decided to kill all inmates of these camps and of the other camps.

 

[48]      At least 14,000 Jews at Poniatowa and 5,000 to 8,000 Jews at Trawniki were killed in this operation, as well as many others in the Lublin concentration camp and its satellite camps. According to Dr. Tuchel (see Tuchel Report at 43, 56 – 57), the regular guards of these camps, including Trawniki Guardsmen, did not perform the killings. Instead, Waffen-SS and Police battalions and Security Police came to the camps to carry out the mass murders. The Trawniki Guardsmen were present during the operation, stood guard and corralled Jews who tried to escape, and covered the dead bodies with fir branches for concealment. After Operation Harvest Festival, a skeleton crew of guards was left at Poniatowa to conceal the now-defunct camp and guard the remaining buildings; the rest were returned to Trawniki. Dr. Tuchel indicated that the remaining guards exhumed the bodies two weeks later and burned them, then scattered the ashes in the surrounding forest.

 

            (5) Trawniki Training Camp and Sources of Guardsmen   

[49]      I turn to a review of the German facility that is central to these proceedings. Among the various camps located in the General Government, a unique dual-camp was located at Trawniki, about 35 km from the town of Lublin and close to the border with Ukraine. This location contained a labour/concentration camp (Labour Camp Trawniki) as well as an adjoining training camp for non-German guardsmen (SS Training Camp Trawniki). Like the other camps in the Lublin region, the Trawniki camps were at first under the supervision of the SSPF Lublin and, as of September 1943, under the SS-WVHA organization (at which time the labour camp became a concentration camp).

 

[50]      Guardsmen trainees came to Trawniki in a number of ways. Some were German volunteers. Many were prisoners of war who had been captured by the Germans. Of importance to these proceedings, many guardsmen were recruited from the German-occupied Ukraine region, an area that bordered on the General Government.

 

[51]      Documentary evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans were desperate for extra manpower after their invasion of the USSR in 1941. On July 25, 1941, faced with severe labour and police shortages in the vast, newly conquered Eastern European territories, Heinrich Himmler instructed SS and Police Leaders, including SSPF Globocnik (the first commander of Trawniki Training Camp), to establish:

 

. . . protective formations made up of those population groups in the occupied territories who are friendly towards us, as has already been done in some cases by the Operational Task Forces (Einsatzgruppen) of the Security Police. These protective formations should be formed primarily of Ukrainians, residents of the Baltic countries, and Byelorussians. They should be selected from among the men who still live in those regions, and from among non-Communist prisoners of war. [Emphasis added.]

 

[52]      In 1941 and 1942, the Trawniki Training Camp gained its recruits principally from Soviet prisoner of war camps among the German-occupied territories. Demand for trained guardsmen from Trawniki steadily rose, but the supply of prisoners of war did not. Many prisoners of war died from starvation and disease in the camps, and the 1941/1942 winter was particularly brutal, killing most of the Soviet prisoners of war (in particular, the inmate population at the Poniatowa camp was completely devastated, vacating it for later use as a Jewish labour camp). Thus, Camp Commandant Karl Striebel (appointed by SSPF Globocnik) began taking in “volunteers” from the local and surrounding areas.

 

[53]      According to statements made by Striebel in proceedings against him after the war, “up to three men applied in Trawniki every day as volunteers”, mainly from the district of Lublin (Tuchel Report at 27). In 1943, Striebel expanded his recruitment to Polish and Ukrainian districts, including Galicia and Kolomea. Men were gathered and medically examined by local Circuit Administrations, then arrived by transport at Trawniki. In February 1943, more than 300 recruits arrived by train from Galicia, mainly from the Stanislau and Kolomea regions. In April, 1943, another transport of recruits arrived from the Kolomea and Gorodenko regions.

 

[54]      The term “volunteer”, as applied to the Ukrainian recruits, was the subject of some discussion. How voluntary was the service of these men? Little evidence was provided, and little may exist, regarding the recruitment techniques used or by the motivations of the “volunteers”. Dr. Tuchel testified that the Germans received a warm welcome in many of the regions that they conquered from the Soviets – at least, at first. That sentiment for many soon turned to dismay and horror. It is certainly possible that many of the individuals who came to Trawniki were lured by anti-Soviet sentiment, by the promise of a steady wage and family benefits, by fascist or racist beliefs similar to the Nazis, or by some combination of these factors. On the other hand, it is equally possible that others signed up for duty under threat or fear of the alternatives. Ideologically, it is easy to say – today – that persons faced with serving as concentration camp guards could have and should have deserted or refused to serve. We were not there and will never know the whole truth unless we hear testimony from an affected individual. We do know, however, that some men from that region made other choices; some served as front line troops for the Third Reich, and some deserted. In the absence of any evidence to the contrary, it is reasonable to assume that there was at least some degree of volition by the Ukrainian recruits who served as Trawniki guards.

 

            (6) Trawniki Processing of and Documentation for Guardsmen Trainees

[55]      Upon their arrival at Trawniki, new recruits were photographed. In the Camp office, a personnel sheet (Personalbogen) and personnel card (Personalkarte) was kept for each individual. Each recruit was assigned a registration number which “was to stay with the recruit and future guard for as long as he served in Trawniki or at a location or commando to which he was assigned from Trawniki” (Tuchel Report at 25).

 

[56]      Dr. Tuchel provided evidence that this registration number was a feature of the Trawniki Training Camp that was not used in the German concentration camp system. A registration number was unique to a guardsman. No number was ever assigned to another individual, even if a guardsman died. Once Trawniki men were transferred out of the Trawniki camp system and into the German concentration camp system, their registration numbers were no longer used for identification. Dr. Tuchel testified that, with this information, he could track an individual guardsman among camp documents such as the Transfer Lists, which are discussed in detail below.

 

[57]      Dr. Tuchel also testified that the registration numbers were given out in a sequential basis upon recruitment, beginning with the number 1 and progressing upward. About 5,000 guardsmen were trained at Trawniki. Dr. Tuchel also explained how he could estimate when a recruit arrived at the camp. By examining the few surviving Personalbogen and Personalkartes of Trawniki guardsmen, which indicate their date of arrival, and by examining the registration numbers on various Transfer Lists, which are also dated, Dr. Tuchel could pinpoint a time frame in which a guardsman with a given registration number must have arrived at the Training Camp.

 

[58]      Every recruit signed a service pledge (Dienstverpflichtung), which makes it evident that the guardsmen were considered to be part of the SS. As of the spring of 1942, the pledge had the following wording:

 

 . . . I hereby declare that I pledge to serve in the Guard Units of the SS and Police Leader in the District of Lublin for the duration of the war, and that I subject myself to the existing service regulations and disciplinary regulations.

 

[59]      Dr. Tuchel’s evidence was that, when transferred out of the Lublin district (for example, to a concentration camp within the German Reich itself), the identity documents of the individual guardsman were sent with him. Thus, the Personalbogen and Personalkarte of a guardsman sent to a camp beyond the Lublin district would not remain at Trawniki. This becomes important in this case because no personal identification documents have been located for Guardsman Skomatschuk, Registration No. 3321. Thus, there is no direct evidence as to when this person arrived at Trawniki and no photograph that could link this person to the Defendant, Mr. Skomatchuk.

 

[60]      Dr. Tuchel provided a cogent explanation for the absence of many personal identification documents for Trawniki guardsmen, in both his Report (Tuchel Report at 89) and his oral testimony. In the face of pending defeat, the Nazi regime, “especially the staff of concentration camps”, had made every effort to destroy records that would implicate concentration camp soldiers and guards. Thus, only a few of the Personalbogen of Trawniki guardsmen transferred to concentration camps in the German Reich survived. Some documents (including the Transfer Lists referred to below) from Trawniki survived only because they were seized by the Soviet army as they liberated the camp.

 

            (7) Role of Guardsmen

[61]      As Dr. Tuchel explained in both his report and testimony, the Trawniki guardsmen were used for many purposes. They acted as guards for labour, concentration, and extermination camps; they assisted in guarding important non-military locations such as saw-mills; and they participated in clearing Jewish ghettos. Later on, they were mixed with German guard units and some were transferred to concentration camps within the Third Reich. Trawniki guardsmen were each issued a simple rifle and a bayonet in order to fulfill their duties.

 

[62]      Trawniki guardsmen began their training by guarding the Trawniki Labour Camp. The guardsmen’s role was to watch over the Jewish inmates, to escort them to and from their work, and to shoot any attempted escapees. The guardsmen carried out these same duties when sent to other labour camps, including Poniatowa.

 

[63]      Dr. Tuchel indicated that, according to reported accounts from the camps, the Trawniki guardsmen also interacted with inmates in various unsavory ways. Some Trawniki guardsmen beat the inmates or forced them to assault each other. The guards at Poniatowa sometimes took money from Jews in return for some privileges, such as being allowed to communicate with relatives through the barbed wire fence around the camp and obtain food, but this practice varied with the strictness of the camp commander. Dr. Terry testified that, at Flossenbürg, Ukrainian guards (who very likely were Trawniki men) would bait inmates into attempting to escape and then shoot them; the guards were often rewarded for killing “escapees.”

 

[64]      Documentary evidence canvassed by Dr. Tuchel indicates that Trawniki guardsmen were involved in the clearing of the Warsaw and Bialystok ghettos, and other ghettos in the Lublin area. Some Trawniki men also served in the extermination camps where they performed guard service, sealed off arriving transports, unloaded railway cars carrying Jews, and escorted Jews to the gas chambers. Documentary evidence shows that Trawniki men participated in gassing of Jews at Treblinka, by starting the motors that pumped gas into the death chambers.

 

            (8) Integration with SS Death’s Head Units

[65]      In 1943, the Trawniki guardsmen were comprised of former Soviet prisoners of war and of volunteers. Up to this time, the Trawniki men had been somewhat unreliable; there had been a significant number of desertion attempts. To solve this problem, the Lublin SSPF suggested to Himmler that the Trawniki men be integrated into the regular German guard units, known as the SS Death’s Head Battalions. Beginning in 1943, Trawniki men were exchanged with German guardsmen from concentration camps within Germany itself. German records show that every effort was made to treat the Trawniki guardsmen as members of the SS Death’s Head Guard Battalion: they were to be treated as comrades; they received the same pay and benefits as German soldiers; and their duties were the same as German guards.

 

[66]      German records, including two of the Transfer Lists that are central to this inquiry, show the transfer of hundreds of Trawniki guardsmen to German concentration camps such as Flossenbürg and Sachsenhausen. According to Dr. Tuchel’s Report, “approximately 870 Trawniki SS Guardsmen can be identified by name who were transferred from Trawniki to the SS Death’s Head Guard Battalions in concentration camps between April and November 1943” (Tuchel Report at 80). Dr. Tuchel indicated in testimony that, once in Germany, the Trawniki men were deliberately broken up from their company and distributed among the Death’s Head Units.

 

[67]      In my view, there is little doubt that the Trawniki guardsmen were not only members of the SS, but, as of 1943, also members of the SS Death’s Head Guard Units. While it appears that they did not carry the Blood grouping tattoo that was borne by the German members, in every other regard, they were part of those Units.

 

V. Background and Role of Mr. Skomatchuk in World War II

[68]      With this background, I move to consider the particular circumstances of the Minister’s allegations.

 

[69]      A number of facts concerning Mr. Skomatchuk are either set out in the Agreed Statement of Facts filed by the parties or are not in dispute.

 

(a)    Mr. Skomatchuk is an ethnic Ukrainian, born February 26, 1921 in Zabje (village), Kolomea raion (district) within the Ivano-Frankivsk oblast (region). (Both Zabje and Kolomea appear throughout the documents with a variety of spellings, all of which can be accounted for by the translations from Cyrillic writing.) In 1921, the Ivano-Frankivsk oblast was part of Poland. In 1939, this region became part of the USSR and, in 1941, was occupied by Germany and became part of the General Government.

 

(b)   From May 1945 to March 1948, Mr. Skomatchuk was in the Wels district of Austria.

 

(c)    On March 23, 1948, Mr. Skomatchuk arrived in the United Kingdom, where he worked as part of a British labour program; he never obtained permanent resident status or citizenship in the UK.

 

(d)   On May 17, 1952, Mr. Skomatchuk left Southampton, UK for Canada, arriving in this country on or about May 26, 1952.

 

[70]      The critical question is what Mr. Skomatchuk was doing between 1943 and 1945. Mr. Skomatchuk claims that he was conscripted to perform forced labour for the Nazi regime and did so in this period. The Minister contends that Mr. Skomatchuk was a Guardsman with the German SS and was engaged, for at least part of that time, as a concentration camp guard. It is evident that not both of these stories can be true.

 

[71]      The next phase of my analysis consists of two steps. First I must consider whether the evidence establishes that someone with the name of Skomatschuk was a Trawniki guardsman who engaged in the activities claimed by the Minister. The second part of the analysis (beginning at para. 101) involves determining whether the evidence establishes, on a balance of probabilities, that Mr. Skomatchuk, the Defendant, is the same Trawniki guardsman.

 

[72]      It should be made clear that the Minister does not assert that, during this period, Mr. Skomatchuk carried out any particular acts of violence. Rather the Minister’s submission relates to Mr. Skomatchuk’s alleged engagement as a Trawniki guardsman.

 

[73]      For both parts of the analysis, the evidence presented by Dr. Tuchel is particularly relevant. Dr. Tuchel testified, as described above, as to the role of the Trawniki Training Camp and its guardsmen. Further, he provided evidence about the important Transfer Lists and other documents that relate to Guardsman Skomatschuk.

 

A. Guardsman Skomatschuk

[74]      The Minister asserts that the evidence establishes that there was an SS Guardsman Jura Skomatschuk, Registration No. 3321, whose movements can be determined from his arrival as a recruit at Trawniki to a final assignment at the Mauthausen concentration camp.

 

            (1) Transfer Lists

[75]      No personal identity documents from the Trawniki Training Camp exist for this particular Guardsman. The key references that we have to a Guardsman Skomatschuk are on documents known as Transfer Lists. The Transfer Lists are photocopies of original documents being held in the Central Archives of the Federal Security Service (FSB) of the Russian Federation, in Moscow. The photocopies are of varying quality and, in one case, two separate copies of the same original document have been provided.

 

[76]      All of these documents are similar in content and design. They are typewritten in German, sometimes with German handwriting on some portions. Each document also contains handwritten Cyrillic notations. The lists record the transfer of guardsmen between "Training Camp Trawniki" and other labour camps, concentration camps or SS formations. The documents each contain a list of names and corresponding registration numbers, organized by rank. In some cases, the documents also state the birth date and birth location of the guardsmen. The documents are dated and, in most cases, signed. In Canada (Minister of Citizenship and Immigration) v. Skomatchuk, 2006 FC 730, [2006] F.C.J. No. 928 (QL), after hearing a motion on the admissibility of the Transfer Lists, I determined that the Transfer Lists should be admitted as evidence in these proceedings. As noted in that decision, there are a number of indicia of the reliability of these documents:

 

1. The lists were prepared as part of the administration of the concentration camps and the movement of guards from one location to another within the system;

 

2. The documents contain lists of names and other factual information; in other words, they consist of objective information and not opinions or reports of a subjective nature;

 

3. The lists were prepared by persons with no interest in these proceedings; they were not prepared in contemplation of litigation;

 

4. The documents were prepared contemporaneously with the events, as stated by Dr. Tuchel;

 

5. The lists all have common elements, such as a uniform design, structure and purpose; they are consistent as to form and content, with a few minor exceptions;

 

6. Six of the seven lists are signed by senior officers of the SS or German police, as identified by Dr. Tuchel;

 

7. Some of the information contained in the lists is corroborated by other documents of German origin that have been examined by Dr. Tuchel at the FSB Archives and elsewhere; and

 

8. The Transfer Lists are consistent with 30 to 40 such lists that have been seen by Dr. Tuchel.

 

[77]      I admitted these documents subject to the condition that Mr. Skomatchuk could present further evidence and argument regarding their reliability. The only objection by Mr. Skomatchuk related to the fact that the documents had been held by Soviet authorities since the end of the war. The suggestion is that the documents could have been altered in some way. Mr. Skomatchuk did not present any evidence as to how or why any such alterations would have been made. There is nothing on the record that would indicate that the Soviet or Russian authorities changed the typewritten German text of the Transfer Lists. Mr. Skomatchuk’s objection to the Transfer Lists on this basis is without substance. Accordingly, I conclude that the Transfer Lists are a reliable source of information on the existence and movement of SS Guardsmen from the Trawniki Training Camp.

 

            (2) Arrival at SS Trawniki Training Camp

[78]      I begin with Dr. Tuchel’s evidence that a number of recruits arrived for training at the Trawniki training camp on April 7, 1943. How is this fact established? In his research, Dr. Tuchel was able to examine the Personalbogen for a number of individual guardsmen whose arrival date at the camp was set out as April 7, 1943. These guards were assigned registration numbers that fell between 3301 and 3398. From Dr. Tuchel’s evidence that registration numbers were assigned sequentially and that no two guardsmen were ever given the same number, it follows that a guard with the number 3321 would have arrived at Trawniki on the same day – that is, April 7, 1943.

 

[79]      A further piece of relevant evidence is that Dr. Tuchel found that all of the men whose Personalbogen he was able to locate within this sequence of registration numbers arrived from the Kolomea region of Ukraine.

 

[80]      The registration number of 3321 is set out in three Transfer Lists. And, in each case, the number is associated with a man named “Jura Skomatschuk”. One list refers to a “Jura Skomatachuk”; this is almost certainly a simple typographical error of no importance. In my view, the inescapable conclusion is that: (a) a person named Skomatschuk arrived at Trawniki on April 7, 1943 and was registered with number 3321; and (b) the Transfer Lists that include a guardsman with registration number 3321 are referring to the same person. It is also more probable than not that this guardsman was from the Kolomea area of Ukraine.

 

[81]      To establish the history of Guardsman Skomatschuk, I turn to the Transfer Lists.

 

            (3) Transfer to Poniatowa

[82]      The first Transfer List of relevance is that dated May 25, 1943 (the May 1943 Transfer List). This list documents the transfer of guardsmen from the Trawniki Training Camp to the Poniatowa labour camp. Listed at number 21 is “Skomatschuk, Jura” with Registration No. 3321. Dr. Tuchel testified that the information in this list is consistent with what was going on at Poniatowa at that time. First, there were Jews there who had been transferred to this labour camp or who had come there from the Warsaw ghetto clearing. More guards were needed to cope with the increased numbers of inmates at the camp. This date of transfer is also consistent with Dr. Tuchel’s evidence that training for Trawniki guards lasted about six weeks.

 

[83]      The third internal consistency is that there is an almost perfect correlation of registration numbers for the guardsmen on the May 1943 Transfer List and those whose Personalbogen confirmed their arrival in Trawniki on April 7, 1943. As stated above, Dr. Tuchel was able to locate some Personalbogen for guardsmen who had arrived at Trawniki on April 7, 1943. Almost all of those guardsmen were included on the May 1943 Transfer List.

 

[84]      The fourth internal consistency is that Dr. Tuchel testified that the name and signature on the list was that of Rudolph Heinze, the Commandante of the Trawniki training camp at this time.

 

[85]      In sum, the May 1943 Transfer List establishes that Guardsman Skomatschuk, Registration No. 3321, was transferred from the Trawniki training camp to the Poniatowa labour camp on or about May 25, 1943.

 

            (4) Transfer to Trawniki

[86]      The second relevant Transfer List (the November 17, 1943 Transfer List) shows a transfer of about 120 guardsmen from Poniatowa back to Trawniki. Listed at number 82 is

“S k o m a t s c h u k, Jura” with Registration No. 3321. Because of the identical registration number, I am satisfied that this was a transfer to Trawniki of the same Guardsman Skomatschuk who had been sent to Poniatowa on or about May 25, 1943.

 

[87]      Dr. Tuchel testified that this transfer of approximately 120 guardsmen from Poniatowa to Trawniki on or about November 17, 1943 is internally consistent with a significant event that took place at Poniatowa on November 2 and 3, 1943. That event, known as “Operation Harvest Festival”, is described above and resulted in the murder of most of the inmates of the camp. The transfer of guardsmen from Poniatowa to Trawniki, about two weeks after the slaughter, is consistent with that event.

 

[88]      Another sign of consistency is that Dr. Tuchel also testified that he recognized the signature of the head of the Commandos at Poniatowa as “Erlinger”.

 

[89]      As noted above, in September 1943, the training camp and the labour camps that were associated with Trawniki, including Poniatowa, became affiliated with a concentration camp at Lublin, the major city in the area. From that date, Poniatowa was a concentration camp and the SS Guardsmen stationed there became concentration camp guards.

 

[90]      I am satisfied that this Transfer List establishes that Guardsman Skomatschuk was serving as a guard at Poniatowa as of November 17, 1943 and was transferred from Poniatowa to Trawniki on or about that date. This transfer list also establishes that Guardsman Skomatschuk was a guard at Poniatowa during the time that it was a concentration camp.

 

            (5) Transfer to Sachsenhausen

[91]      The third relevant Transfer List (the November 20, 1943 Transfer List) is dated November 20, 1943. Referred to at number 21 is “S k o m a t a c h u k, Jura”, registration no. 3321 with “geb.am [birth date] 21.2.21 in Schabie, Kolomea”. This Transfer List shows that, three days after the guardsmen listed on the November 17, 1943 Transfer List were transferred back to Trawniki from Poniatowa, these guardsmen were sent to Sachsenhausen, near Berlin, Germany.

 

[92]      This transfer is consistent with Dr. Tuchel’s evidence that, beginning in 1943, Trawniki men were exchanged with German guardsmen from concentration camps within Germany itself (discussed above beginning at para. 65). As Dr. Tuchel testified, once the guardsmen left the Trawniki camp system for duty in the German Reich, records were kept by name, birth date and place of birth. The Personalbogen for these guards would also have been moved to Sachsenhausen. As we now know from Dr. Tuchel’s evidence (and as referred to above at para. 60), the only reason that we have a copy of this Transfer List is that a copy was retained in the Trawniki records. While much of the documentation in concentration camps in the German Reich was destroyed by the camps’ authorities in anticipation of the arrival of the allied forces, many documents at Trawniki were seized by the Russians upon the camp’s liberation.

 

[93]      This November 20, 1943 Transfer List also describes the men listed therein as having been recruited from the Lublin and Galicia (also referred to as Kolomea) area, some seven and a half months earlier as volunteers. As translated, the notation on the list states that:

 

The above mentioned men are volunteers from the districts of Lublin and Galicia and [?] recruits who were mustered, called up and trained by the local office.

 

[94]      On the basis of this evidence, I am satisfied that Guardsman Skomatschuk was transferred from Trawniki to the concentration camp at Sachsenhausen on or about November 23, 1943.

 

            (6) Transfer to Mauthausen Concentration Camp

[95]      The Minister presented no further Transfer Lists but submitted that the evidence supports a conclusion that Guardsman Skomatchuk was transferred from Sachsenhausen to the concentration camp at Mauthausen in Austria.

 

[96]      The research of Dr. Tuchel into the November 20, 1943 transfer of guardsmen to Sachsenhausen is described in his Report at 93 -109. He testified as to the circumstances of the transfer and was the subject of cross examination. In summary form, his evidence is as follows:

 

• Sachsenhausen was a “transit station”, meaning that the guards were sent to other camps from this location;

 

• Of the 224 guardsmen who were sent to Sachsenhausen from Trawniki (in two transfers, one of which was the November 20, 1943 transfer), most were transferred to other camps; and

 

• A review of 43 surviving Personalbogen demonstrates that 34 of those 43 Trawniki men were sent to the Munthausen concentration camp or to Gusen, a satellite camp of Munthausen in the weeks after their transfer to Sachsenhausen.

 

[97]      In light of this evidence, Dr. Tuchel expressed his opinion that:

 

It is highly probable that [Guardsman Skomatschuk] went together with other men from Trawniki, that he was sent to the Mauthausen concentration camp.

 

[98]      The opinion of Dr. Tuchel does not, in my view, establish conclusively that Guardsman Skomatschuk was sent to Mauthausen or Gusen. Nevertheless, a transfer to Mauthausen is plausible and supported by the evidence presented by Dr. Tuchel. While not, on its own, persuasive, the evidence related to the movement of Trawniki guardsmen to these camps may assist me in coming to an overall conclusion with respect to the Defendant.

 

            (7) Conclusion

[99]      Upon careful review of the evidence and the testimony of Dr. Tuchel, I am satisfied, on a balance of probabilities, that there was a Guardsman Jura Skomatschuk, Registration No. 3321, who:

 

(a)    was from the Kolomea district of Ukraine;

 

(b)   trained as an SS Guardsman at the SS Trawniki training camp, commencing in April 1943;

 

(c)    was deployed as a guard at the Poniatowa Labour Camp from May 1943, which camp became a concentration camp in September 1943;

 

(d)   served as a concentration camp guard at Poniatowa for at least some time prior to November 17, 1943 when he was transferred back to Trawniki; and

 

(e)    was transferred to Sachsenhausen concentration camp on or about November 20, 1943.

 

[100]    At this point in my analysis, I have insufficient evidence to establish that Guardsman Skomatchuk was transferred to Mauthausen. Nevertheless, such a transfer is plausible and may be supported by other evidence.

 

B. Identity of Guardsman Skomatschuk

[101]    My finding that there was a Guardsman Skomatschuk who trained at the SS Trawniki Training Camp and served as a concentration camp guard does not dispose of this inquiry. The next question is whether this is the same individual who is now the Defendant in these proceedings.

 

[102]    As a general observation, I would note that the record shows different spellings of the surname “Skomatchuk”. Even documents produced by the Defendant provide a variation on the spelling; for example, “Skomaczuk”. I am satisfied that these differences can be explained by the translation of the name from Cyrillic writing to either English or German. Phonetically, “Skomatchuk”, “Skomatschuk”, “Skomachuk” and “Skomaczuk” are identical; use of a different spelling does not necessarily indicate a different person.

 

            (1) Birth Record

[103]    I will begin with an examination of the evidence related to Mr. Skomatchuk’s birth. There is agreement that Mr. Skomatchuk was born February 26, 1921 in or near Zhabye, Poland. This region of Poland is now part of Ukraine. Mr. Skomatchuk produced no documents related to his birth, although it was open to him to do so.

 

[104]    The Minister produced a document claiming to be a Birth Record. This Birth Record, as translated, contains the following information.

 

Surname                                 SKOMACHUK

First name                              YURIY

Birth date                               26 February 1921

Birth place                              town (village) village of I’ltsi

                                                District                        Verkhovins’kyi

                                                Region (country)        Ivano-Frankivs’ka

Information on father Surname         SKOMACHUK

                                                First name      IVAN

                                                Patronymic     ILLICH

Information on mother           Surname         SKOMACHUK /née Stefurak

                                                First name      EVDOKIYA

                                                Patronymic     LUK”YANIVNA

 

[105]    This Birth Record was produced as a certified true copy, signed by P. Rashkovs’ka, and issued from the District Justice Directorate in the region of Ivano-Frankivs’k, Register Office, Ukrainian Ministry of Justice. I have no reason to doubt its authenticity or the truth of its contents. The question, of course, is whether this document is the birth record of Mr. Skomatchuk.

 

[106]    Some of the information contained in this birth record matches that contained in other documents before me. One such document referred to by the Minister was issued by the Municipal Authority of the City of Wels, Austria some time in 1946. Mr. Skomatchuk acknowledges being in this area after the end of World War II. On this document, as translated, Mr. Skomatchuk’s father is identified as “Ivan” and his mother as “Jodnha”, maiden name as “Stefirak”. While the mother’s first name appears to be different, the other names are the same (subject to spelling variations that can be accounted for by the translation from Cyrillic writing). This document shows a birth date of February 26, 1921 and describes the town/city of his birth as Kolomeja in the district of Kosin in Ukraine.

 

[107]    One other document (Exhibit D-3), dated March 3, 1948, refers to Mr. Skomatchuk’s parents as “Ivan” and “Jawdoka”, to his place of birth as “Zabje” and to his date of birth as February 26, 1921.

 

[108]    References to Mr. Skomatchuk’s date and place of birth are also contained in a Landing Document completed upon Mr. Skomatchuk’s arrival in the city of Quebec on May 26, 1952. In this document, Mr. Skomatchuk identifies his country and place of birth as “Ukraine, Zarje” and his date of birth as February 26, 1921. Mr. Skomatchuk’s citizenship application, dated June 13, 1957, also identifies him as being born in “Zabje, Ukraine” on February 26, 1921.

 

[109]    A review of the geography associated with this area of Ukraine shows that places often carry more than one name. Further complications arise due to the variations of spellings. For example, Kolomeja referred to above may be spelled as Kolomyia, Kolomyja, Kolomea or Colomeea. The region of Ivano-Frankivs’ka, in which all of the relevant places are located, is part of an area that is historically known as Galicia. The towns of I’ltsi (also known as Il’tsya, Il’ci) and Zabje (also referred to as Zarje, Zhabye, Zabie and Schabje) are two small villages in the district of Verkhovyna in the region of Ivano-Frankivs’ka, within a few kilometers of each other. The district of Verkhovyna also contains a city (or “urban village”) named Verkhovyna. Overall, the district is also known as Kolomea.

 

[110]    The Minister submits that no other individuals with the name of Jura Skomatchuk were born in this area in 1921. In support of this proposition, the Minister refers to correspondence with Ukrainian officials. When asked about the birth records of “Skomatchuk”, the response from the Senior Justice Counsellor, Deputy Oblast Procurator of Ivano-Frankivs’k Oblast, dated September 28, 2004 was that:

 

According to data supplied by the Civil Status Records Department of Verkhovyna Raion Justice Administration, there is no record of a birth of a Citizen JURII SKOMATCHUK in February 1921 in the village of Zha’ye. However, there is a record of a Citizen YURII IVANOVYCH SKOMACHUK born February 26, 1921 in the village of Il’tsi, to parents Ivan Illich Skomachuk and Yevdkiya Luk’yanivna [Skomachuk].

 

[111]    A letter, dated March 25, 2005, from the Ministry of Justice of Ukraine, Verkhovyna Region to officials in the Minister’s office in Ottawa, was sent in response to a request from the Minister’s office that a search be made of any other individuals who were born in this area in the year 1921. As translated, the relevant portions of the response are as follows:

 

According to the data at the Civil Registry Office of the Verkhovyna District’s Department of Justice, there is no birth record for the citizen Yuriy Skomachuk of the village of Zhabye (Urban Village of Verkhovyna) in 1921.

 

However, the Civil Registry Office of the Verkhovyna District’s Department of Justice does possess a birth record for a number of citizens with the surname Skomachuk, with other given names, registered in the village of Iltsi in Verkhovyna District . . .

 

[112]    The name, date of birth and patronymic, Ivanovich, match those set out in other documents before me. The only difference appears to be the place of birth. While the birth records for the District do not show anyone with the name of Skomatchuk born in Zhabye in 1921, the records do show that four persons with the surname Skomachuk were born in Iltsi. The fourth entry is for:

 

Skomachuk, Yuriy Ivanovych, 26 February 1921

 

[113]    With respect to the registration at a different village from that later identified by Mr. Skomatchuk, I note that the two villages are located in the same region within a few kilometers of each other. Further, the evidence is that Mr. Skomatchuk lived on a farm in the region, quite likely not within the borders of a town or village. It is entirely plausible that his parents registered his birth in Iltsi rather than Zhabje. This is supported by the information from the Ukrainian officials that there was no Skomatchuk or Skomachuk birth registered in Zhabje. Unless his birth was not registered (which was not suggested by Mr. Skomatchuk), the registration in Iltsi of “Skomachuk, Yiriy Ivanovych” is logically that of Mr. Skomatchuk.

 

[114]    There is one other apparent inconsistency in the documentation, that being the mother’s first name. The Birth Record lists the first name, as translated, as “Evdokiya”. One other reference to Mr. Skomatchuk’s mother is contained in the document issued in 1946 by the Municipality of Wels; in that document, the mother’s first name is translated from the German as “Jodnha”. The maiden name is almost identical. The different first name could be accounted for by translation from Cyrillic to German to English. It is also possible that Mr. Skomatchuk’s mother had more than one first name. In the only other document that make mention of his parents’ names, a 1952 document, Mr. Skomatchuk’s mother was listed as “Jawdoka”, a first name much closer phonetically to “Evdokiya”. I do not assign much weight to the different first name; it certainly does not establish that the person born Yuriy Skomachuk is a different person from the Defendant in these proceedings.

 

[115]    In my view, on the basis of this evidence, it is inherently probable that Jura Skomatchuk is the same person as the Yuriy Skomachuk described in the Birth Record. I am satisfied that, on a balance of probabilities, the information set out on the Birth Record accurately reflects the circumstances of the birth of Mr. Skomatchuk, the Defendant in these proceedings.

 

            (2) Links between Mr. Skomatchuk and Guardsman Skomatschuk

[116]    Having established the particulars concerning the Defendant’s birth, I turn to the evidence that arguably links the Defendant to Guardsman Skomatschuk.

 

[117]    The first and most obvious link is the name. Subject to a minor spelling variation, the two names of “Jura Skomatchuk” and “Jura Skomatschuk” are identical.

 

[118]    The place of birth is also the same. On the November 20, 1943 Transfer List, Guardsman Skomatschuk’s birth place is set out as “Schabie, Kolomea”. The Agreed Statement of Facts set out the Defendant’s birth place as “Zabje (Kolomea), Poland”. Mr. Skomatchuk did not dispute that “Schabie” and “Zabje” are the same place. The spelling differences can be accounted for by the fact that the place name was translated from Cyrillic writing into either German or English.

 

[119]    The only recorded difference between Guardsman Skomatschuk and the Defendant is the date of birth. On the November 20, 1943 Transfer List, the date of birth is recorded as February 21, 1921. With this exception, the evidence is consistent that his birth date is February 26, 1921, including on the Birth Record referred to above. Does this five day difference on the Transfer List lead to a conclusion that Guardsman Skomatschuk may not be the Defendant? In the absence of other evidence related to this issue, the difference might be critical. However, there is evidence before me that leads me to conclude that the different date on the Transfer List is likely not material. The same November 20, 1943 Transfer List that sets out his birth date as February 21, 1921 also sets out Guardsman Skomatschuk’s place of birth as Schabie, Kolomea. As noted above, the evidence, from the Office of the Procurator of Ukraine, is that there were no other persons with the name Jura Skomatchuk or Skomachuk born in that area in 1921. It follows that the date of February 21, 1943 was most likely entered onto the Transfer List in error.

 

[120]    Without anything further, it is a reasonable conclusion that the two individuals are the same. However, this conclusion must not just be reasonable; it must be more likely than not.

 

[121]    There has been further evidence presented that addresses this issue. Some of that evidence provides support to the identity of Mr. Skomatchuk as the Trawniki guardsman. I acknowledge that, if considered in isolation, no single piece of this evidence would be determinative. Nevertheless, the evidence must be considered as a whole to determine whether the story that it tells is inherently probable. Further, it is important to examine the evidence to see whether it is consistent or whether it throws doubt on factual findings. If consistent, it may help to increase the level of probability or plausibility. If inconsistent or contradictory, the probability is lessened.

 

[122]    Dr. Tuchel’s evidence, well supported by the documentary evidence, is that Guardsman Skomatschuk arrived at the Trawniki Training Camp on April 7, 1943 with a group of recruits from the Kolomea or Galicia district. A further reference to the Kolomea district is contained in the November 20, 1943 Transfer List where the men are described as “volunteers from the districts of Lublin and Galicia”. We know that the region of Kolomea is also referred to as “Galicia”. This reference to Galicia is consistent with the timing of Guardsman Skomatschuk’s arrival at the camp.

 

[123]    We also know that the Defendant was in Zhabje in February 1943. Mr. Skomatchuk presented into evidence a document dated February 5, 1943 by the Ukrainian Aid Committee in Kolomea, delegation in Zhabye. In this “Attestation”, the signer acknowledges that “Skomachuk Jura” born in 1921 and residing in the “Kolomea Distrikt Galicia” is Aryan, of non-Jewish ethnic origin and belongs to the Ukrainian ethnic group. It is reasonable to infer that Mr. Skomatchuk was in this area in February 1943. This is consistent with the Minister’s submission that he arrived in Trawniki from this region in April 1943.

 

[124]    Further, the evidence is undisputed that Mr. Skomatchuk was at or near Wels, Austria within days of the end of the war. Mr. Skomatchuk presented an Employment Booklet issued November 27, 1946 to “Jura Skomaczuk” by the Employment Office at Wels. Mr. Skomatchuk’s employer signed this document, acknowledging that Mr. Skomatchuk had worked for this employer in Wels since November 27, 1946. The Minister presented into evidence a document issued by the Municipal Authority of the City of Wels some time in 1946. That document notes that Mr. Skomatchuk was registered as being in Ebensee from May 14, 1945 to November 11, 1945, on which day he moved to Wels. The document also indicates that Mr. Skomatchuk had come to Ebensee from Puchberg. A further document entered into the record is a confirmation issued April 25, 2002 from the Upper Austria Regional Health Insurance Plan. This document confirms that Jura Skomatchuk, born February 26, 1921, was insured from May 28, 1945 to November 22, 1946 during his employment as a farm labourer by Mr. H.M. Geusau, Puchberg. In total, the evidence is clear that Mr. Skomatchuk was in the vicinity of Puchberg or Ebensee as of May 14, 1945.

 

[125]    To place the importance of this evidence into context, I refer to Dr. Tuchel’s evidence. He testified that American troops liberated the Mauthausen and Gusen camps on May 6 and 7, 1945. Ebensee was a satellite camp of Mauthausen; and Puchsberg was only 50 kilometres from Mauthausen. Thus, some few days after the liberation of these camps, Mr. Skomatchuk was in Puchsberg, very close to the Mauthausen camp.

 

[126]    There are two different explanations put forward for the location of Mr. Skomatchuk at this time. The Minister asserts that he was in this area at this time because, up to May 6, 1945, he was an SS Guardsman at Mauthausen or one of its satellite camps. Mr. Skomatchuk asserts that, from March 1943, he was conscripted by the Germans to provide forced labour. After the war, he alleges that he was able to obtain farm work near Wels, Austria. While both stories have an inherent plausibility, only one can be true.

 

[127]    As noted earlier, Mr. Skomatchuk did not appear as a witness to speak to the assertions made in his Statement of Defence. In that document, Mr. Skomatchuk states that:

 

For some periods of time during the years 1943 to 1945, he was conscripted by German occupying forces to provide forced labour. The Defendant states that he was forcibly moved to and from various locations. He has no knowledge at this time as to his exact whereabouts during those years. [emphasis added]

 

[128]    He put forward only one piece of evidence in support of this allegation in his Statement of Defence. That evidence (Ex. D-3) is a document, dated August 1, 1952 which document has been filed subject to an order of confidentiality. The experiences set out in that document do not accord with Mr. Skomatchuk’s version of events set out in his Statement of Defence. While he sets out, in the Statement of Defence, that he had no knowledge of his exact whereabouts, in the 1952 document it is clearly set out that, at that time, Mr. Skomatchuk claimed to have worked on a farm near Wels, Austria for 14 months.

 

[129]    There is a significant difference between not knowing your whereabouts and working on a farm in an identified location for 14 months. Given that this is the only evidence related to Mr. Skomatchuk’s version of his wartime activities, this internal inconsistency lessens the credibility of Mr. Skomatchuk’s claim.

 

[130]    Even if I could accept this change of story as one related to the passage of time, I have other problems with the contents of Exhibit D-3. Mr. Skomatchuk provided no evidence as to the background of or reason for the document. In my view, it appears to set out a story as told by Mr. Skomatchuk to an official. It does not refer to any other documentation that would or could support the claim of being a farm labourer. The document does not provide independent corroboration of the claims or evidence that any investigation by a third party was carried out. Given my concerns with this document, I do not find that it is evidence of the truth of its contents. The document, absent anything further, adds little to Mr. Skomatchuk’s unsupported assertions as to his wartime activities.

 

[131]    In contrast, the Minister’s version of events has evidentiary support. As noted, there is no explicit evidence linking Guardsman Skomatschuk with the Mauthausen concentration camp; no Transfer List was found for the transfer of Guardsman Skomatchuk from Sachsenhausen to Mauthausen. However, we do have the credible, meticulous evidence of Dr. Tuchel that the majority of the Trawniki guardsmen that were transferred to Sachsenhausen were transported to Mauthausen or one of its satellites at Gusen. This would provide a reasonable explanation for Guardsman Skomatschuk being in this area immediately after the liberation of the concentration camp; it lends further support for the Minister’s overall claims. Viewed together with the undisputed location of Jura Skomatchuk in Wels, immediately following the liberation of the concentration camp nearby, the evidence presented is persuasive.

 

[132]    It is not strictly necessary that the evidence establish a connection between the Defendant and the Mauthausen concentration camp. Even absent compelling, direct evidence of a transfer from Sachsenhausen to Mauthausen, it is not inconceivable that Guardsman Skomatschuk made his way to Austria from Sachsenhausen, Germany at or near the end of the war.

 

[133]    One final thought on the arguments of Mr. Skomatchuk. With the references to Guardsman Jura Skomatschuk on the Transfer Lists, I am satisfied that such a person existed. The Lists were not fabricated with fictional names. The evidence allows me, with some certainty, to trace the movements of this individual. If I accept Mr. Skomatchuk’s version of his wartime experiences, I would be accepting that there was more than one person with a name almost identical to Mr. Skomatchuk; who was born in the same month and year; who was born in the same village; and who left that village at the same time in 1943 as Guardsman Skomatschuk. However, we know, from the evidence, that there was only one person with a name like this was born in that month, in that year and in that region.

 

[134]    In sum, I am unable to accept Mr. Skomatchuk’s claims as to his activities during the period 1943 to 1945. On the other hand, the Minister has presented credible evidence that links the activities of Guardsman Skomatschuk with the Defendant.

 

C. Conclusion

[135]    The evidence before me satisfies the burden born by the Minister in this case. I am persuaded that it is more likely than not that Mr. Skomatchuk was Guardsman Skomatschuk, Registration No. 3321. That is, Mr. Skomatchuk was an SS Guardsman who:

 

(a)    trained at the SS Trawniki Training Camp, commencing in April 1943;

 

(b)   was deployed as a guard to the Poniatowa Labour Camp in May 1943, which labour camp became a concentration camp in September 1943;

 

(c)    was integrated into the SS Death’s Head Guard Units as of 1943;

 

(d)   was an SS Guardsman at Poniatowa concentration camp during Operation Harvest Festival in November 1943, when thousands of Jews were slaughtered; and

 

(e)    was a concentration camp guard in one or both of the Sachsenhausen concentration camp in Germany and the Mauthausen concentration camp in Austria, Germany from October 7, 1943.

 

VI. Immigration of Mr. Skomatchuk to Canada

[136]    Mr. Skomatchuk did not come directly to Canada from Austria. Rather, he came first to the United Kingdom, in March 1948, where he was employed as a labourer. Some time in 1952, he applied to come to Canada as a landed immigrant. The question of the processing of his application to come to Canada is of critical concern to these proceedings.

 

[137]    I have concluded that Mr. Skomatchuk, on a balance of probabilities, was a concentration camp guard. The Minister argues that this fact alone would have made Mr. Skomatchuk inadmissible to Canada in 1952. In brief, the Minister’s submissions are that SS concentration camp guards were an absolute prohibited class. According to Dr. Avery’s evidence, such persons were considered the most “odious” type of person with respect to an examination of their war time activities. Between 1945 and 1955, the Minister asserts that there was an absolute prohibition on their entry into Canada, with no discretion as to whether or not an RCMP officer could consider them to be admissible to the country based on either coercion, some sort of compassionate ground or on the fact that they may have been of lower rank. Accordingly, the Minister’s position is that Mr. Skomatchuk had to have misrepresented his World War II activities from immigration officials in order to gain entry to Canada in 1952.

 

[138]    The parties agree that Mr. Skomatchuk was interviewed by an RCMP Officer in Liverpool prior to coming to Canada. That Officer was Mitchell G. Owens, who appeared as a witness for the Minister in these proceedings. Although Mr. Owens does not remember specifically interviewing Mr. Skomatchuk, it is agreed that he did do so.

 

[139]    There are a number of subsidiary issues involved in this crucial determination:

 

• How had Canada’s immigration policy evolved to the point of time in question?

 

• In 1952, was Canada’s policy one that excluded concentration camp guards from admission to Canada?

 

• In 1952, in the United Kingdom, would Mr. Skomatchuk have been asked by Canadian officials about his wartime activities?

 

• In 1952, in the United Kingdom, did Canadian security screening officials, including Mr. Owens, follow the policy of exclusion of concentration camp guards?

 

A. Evolution of Canada’s Immigration Policy

[140]    To assist this Court, the Minister filed 1,834 documents, consisting of documents and communications at every level of Government. These included: Cabinet Directives; Orders-in-Council; Minutes of the Security Panel (a specially formed inter-departmental committee reporting to the Cabinet); internal communications within, from and to the relevant government departments; and memoranda and other communications to and from the RCMP administration and officers in the field. In the following sections of these reasons, I refer to only a few of these documents to illustrate the points being made or to support the evidence of Dr. Avery.

 

[141]    The Minister also presented Dr. Donald Avery, an historian, to speak to immigration policy and practices in Canada. He was qualified as an expert in the following areas:

 

• pre-World War II and post-war immigration policies, and the regulations and Orders in Council affecting those policies;

 

• Canada's post-war immigration policy systems and its implementation;

 

• the immigration selection process, including the role of the Royal Canadian Mounted Police (RCMP) in security clearing and screening prior to, during and after World War II; and

 

• the interaction between Canada and European refugee organizations, including the United Nations Relief and Rehabilitation Administration (UNRRA), the Intergovernmental Committee on Refugees, the Preparatory Commission for the International Refugee Organization, and the International Refugee Organization (IRO).

 

[142]    Dr. Avery prepared a report entitled “A Study of Canadian Immigration Policy and Security Screening, 1945-1956: A Background Report Prepared for the Crimes Against Humanity and War Crimes Section, Department of Justice (Josef Skomatchuk Case)”, dated March 2006 (the Avery Report). This report was filed as an exhibit in these proceedings.

 

[143]    Mr. Skomatchuk did not dispute any of Dr. Avery’s testimony; the words of his counsel were clear and unequivocal on that point when he stated, “I am going to ask that you accept his evidence at the end of the day without reservation” (emphasis added). Mr. Skomatchuk presented no evidence or witnesses to speak to immigration policy or practices.

 

[144]    As evidenced by a number of documents provided by the Minister and referred to by Dr. Avery, Canada’s policy on immigration prior to World War II was simple. Beginning in 1931, it was in effect a policy of exclusion. Only a very narrow class of foreign nationals were permitted to come to Canada (Order-in-Council P.C. 695, March 21, 1931).

 

[145]    The end of World War II brought about changed circumstances. Canada was called upon to accept some of the displaced persons and, beginning in 1946, responded to that need. A review of the gradual revision to Canada’s policy demonstrates, however, that the relaxation of the policy of exclusion was carried out only in a tightly controlled fashion. One early example of the opening up of admissibility involved family members of Canadians under the “Close Relative Scheme”. Another was the “Bulk Labour Scheme” intended to bring persons into Canada to fill labour shortages.

 

[146]    Thus, I can say, with confidence, that the situation in 1952 was one of controlled admissibility of displaced persons. Only after agreement, at the highest levels of Government, were particular classes of persons considered for immigration to Canada. Throughout this gradual opening of Canada’s borders, two themes are consistent and unchanging. The first is that the RCMP officers in the field were responsible for security screening of displaced persons and were carrying out this function through individual screening interviews. The second is that certain classes of persons were not to be admitted to Canada. I will proceed to consider each of these.

 

B. Role of RCMP

[147]    The role of the RCMP in the screening of Mr. Skomatchuk must be determined. I had the benefit of hearing testimony from Mr. Mitch Owens, an RCMP Officer who interviewed immigrants who came through Liverpool from 1952 to 1953. I also have numerous government documents from the period, relating to the Canadian immigration process in Europe from 1946 to 1955. Finally, I also had the benefit of hearing testimony and reading the report of one of the expert witnesses, Dr. Avery.

 

[148]    Generally, European Displaced Persons, including those residing in the United Kingdom, such as Mr. Skomatchuk, were cleared by an immigration team before being issued a visa. This team included an immigration officer, a medical officer, and an RCMP Screening Officer. The RCMP Officer was exclusively responsible for investigating each potential immigrant and clearing or rejecting that person on security grounds. A rejection on security grounds terminated an immigrant’s visa application. RCMP Officers did not provide the reasons for rejection to either the other members of the immigration team or the potential immigrant. Additionally, their decisions were final and could not be appealed or reviewed (this is in contrast to the immigration officer’s decision, which could be appealed).

 

[149]    Dr. Avery testified that, after the war, the opening up of immigration was always subject to the proviso that only those granted a clearance from the RCMP would be eligible for landing to Canada. This is evidenced by a Memorandum to Cabinet, dated October 15, 1945, from J. Allison Glen, Minister of the Department of Mines and Resources (then responsible for immigration) where he stated that refugees may be admitted to Canada “subject to the proviso that only those granted a clearance from the Royal Canadian Mounted Police be eligible for landing within the meaning of the Immigration Act  . . .”

 

[150]    Throughout the documents, the continued role of the RCMP in conducting the required security screening was never in doubt (for example, see the Confidential Memorandum dated December 27, 1946, from Assistant Commissioner Nicholson of the RCMP to S/Sgt W.W. Hinton, Canada House, London; and Cabinet Directive, Circular No. 14, “Rejection of Immigrants on Security Grounds”, October 28, 1949).

 

[151]    The method of investigation employed by RCMP Security Officers put primary emphasis on the personal interview of the potential immigrant. Security Officers also made use of any documents available from Europe; however, it was difficult or impossible to obtain reliable and complete records from the war years (this was cited as the main reason for the importance of personal interviews in several reports; for example, the Report from Sgt. Murray to D.C.I., February 26, 1947; and the Report from Sgt. Murray, March 12, 1947). RCMP in the UK were also required to clear immigrants through British intelligence sources (Instructions from RCMP Commissioner Wood to Sgt. Hinton, October 23, 1946; Memorandum from Director Joliffe to RCMP Inspector Parsons, October 23, 1946; Memorandum titled “Displaced Personnel in Germany”, October 1946). Additionally, the RCMP typically established local contacts with the authorities in their regions to check possible criminal backgrounds.

 

[152]    By 1947, security grounds began to develop in a nuanced fashion, putting further emphasis on the personal interview as an essential investigation tool for screening Displaced Persons. For example, Order-in-Council P.C. 4850 (November 6, 1947) required RCMP Officers to distinguish between persons who has served in the German Army voluntarily or under compulsion.

 

[153]    The evidence shows that, as time marched forward, the security screening process retained the importance of the interview as the core of a security investigation that became more streamlined and efficient, and developed a more comprehensive approach by incorporating numerous sources of information (see for instance Memorandum of Inspector Kelly to G.R. Benoit, September 1953; and Report by Kelly to the Special Branch, June 22, 1954).

 

[154]    The evidence of Mr. Owens confirms that he interviewed each potential immigrant coming through the Liverpool office during the time he was there. He indicated that the interview played a key role in his decision, and that his decision was final, and could not be appealed. He never gave reasons for his decision to the immigration officer and destroyed all his records before leaving his position in Liverpool.

 

C. Grounds for Rejection  

[155]    From the inception of the overseas screening system in early 1947, RCMP Security Officers received a mixture of verbal and written instructions from headquarters, in combination with occasional guidelines issued by Cabinet or through Orders-in-Council. Although immigration policy evolved continuously after the war, it appears that the security grounds for rejection did not undergo any significant change between 1947 and 1950. An exact determination of those grounds has been difficult, because they were rarely recorded in written form, except in the most general terms. This practice reflected the strong concerns of the RCMP that the grounds for rejection should not be known to potential immigrants. The RCMP were opposed to informing rejected immigrants that they had been screened out on security grounds and they long resisted distributing a list to the Immigration Branch (see for example a memorandum by RCMP Assistant Commissioner Nicholson to the RCMP Special Branch, dated July 22, 1948).

 

[156]    However, at least one written list of rejection criteria was prepared by RCMP Headquarters, in consultation with the Immigration Branch, and sent to officers in Europe. Titled “Screening of Applicants for Admission to Canada”, and dated November 20, 1948, the list included the following “Prohibited Groups” that:

 

...if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission:

 

[...]

 

(b) Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (NON Germans).

 

(c) Member of Nazi Party.

 

[...]

 

(h) Evasive and untruthful under interrogation.

 

(i) Failure to produce recognizable and acceptable documents at the time of entry and residence in Germany.

 

(j) False presentation; use of false or fictitious name.

 

(k) Collaborators presently residing in previously occupied territory.

 

[157]    Overall, the objective was to deny admission to any person who, “from their known history and background, would be unlikely to adapt themselves to the Canadian way of life and our system of Democratic government”. These specific words were contained in  “Orders for Personnel Employed Abroad on Visa Control Duties”, sent from S.T. Wood, Commissioner, to S/Sergeant Hinton on October 23, 1946. These Orders once again confirmed the role of the RCMP Screening Officer in assessing admissibility.

 

[158]    An awareness of the role of concentration camp guards arose during the development of Canada’s postwar security guidelines. One of the first direct references in the documentary evidence is contained in a Paper entitled “The Nazi Party, its Formation and Affiliated Organizations”. This paper was prepared by the Criminal Investigations Section of the RCMP and provided to A.L. Jolliffe, Director of Immigration of the Department of Mines & Resources, and forwarded to him under cover letter dated July 25, 1946. In that paper, the SS Totenkopf-Verbande (Death’s Head Unit) was described in the following terms:

 

The SS Totenkopf-Verbande was a special division of the Waffen SS whose duties were confined to the guarding of concentration camps and as police troops in the Occupied Territories. Members of this organization were of a particularly loathsome and brutal type.

 

[159]    Canadian policy was strongly influenced from the beginning by Allied Control Authority Coordinating Committee Directive No. 38, dated October 14, 1946 and entitled “Arrest and Punishment of War Criminals, Nazis and Militarists and the Internment, Control and Surveillance of Potentially Dangerous Germans”. The Allied Control Authority was the military governing body representing the Allied Powers who controlled Germany after the war. Their directives served as policies and regulations for, among other things, treatment of refugees and displaced persons under the United Nations Relief and Rehabilitation Association (UNRRA) and International Refugee Organization (IRO) programs. Under Directive No. 38, war criminals and collaborators were divided into several categories, including: Major Offenders; Offenders: Militarists; Profiteers; and others. Of most significance, the Major Offender category included “Anyone who, in any form whatever, participated in killings, tortures, or other cruelties in a concentration camp, a labour camp, or a medical institution or asylum”; and “Anyone who, for personal profit or advantage, actively collaborated with the Gestapo, SD, SS, or similar organizations...”. 

 

[160]    A reference to substantially the same criteria is found in Cabinet Directive No. 14, issued October 28, 1949, which stated:

 

...Persons in specified categories (i.e., Communists, members of the Nazi or Fascist Parties or of any revolutionary organization, “collaborators”, and users of false or fictitious names or documents) are regarded as inadmissible...

 

[161]    In 1950, substantial changes were made to the security grounds by several Orders-in-Council. P.C. 1606, issued March 29, 1950, removed the blanket ban on Volksdeutsche (ethnic Germans) and German nationals, and allowed some of these people in under certain conditions. P.C. 2856, issued June 9, 1950 granted wide ranging discretion to admit persons who were “suitable” and were not “undesirable” based on social and cultural factors. P.C. 4364, issued September 14, 1950 removed the ban on enemy nationals specifically from Germany, provided they could prove opposition to the Nazi government. None of these Orders-in-Council had the effect of removing the overarching restriction against individuals described in Allied Directive No. 38.

 

[162]    In the midst of these Orders, the Immigration Branch issued Circular No. 72, on May 20, 1950, clarifying the official policy to members of the Wehrmacht and Waffen-SS (the armed SS), with a mind to German nationals:

 

Service in the German Armed Forces during World War II, with the exception of service in the German Waffen-SS, does not constitute cause for rejection. German nationals, however, who served in the Waffen-SS or who are known to have been members of the Nazi Party, traitors, quislings, or guilty of atrocities are to be denied admission or entry.

 

[163]    Having reviewed the documentary evidence, I am persuaded that it was unlikely that anyone – either in a policy role or as an RCMP Officer in the field – would consider a concentration camp guard to be admissible to Canada. As stated by Dr. Avery,

 

Certainly anyone who was connected with a Nazi organization and especially a concentration camp guard would have been seen as completely inimical to the Canadian way of life and to Canada’s system of democratic government.

 

[164]    In a reflection of the growing relaxation towards German nationals and ethnic Germans, two memoranda discuss removing the rejection of Germans for membership in the Nazi Party or Waffen-SS, with the caveat of exercising discretion regarding the circumstances of their wartime activity. Of note, both of these documents directly reference the terms “minor offenders” and “major offenders” found in Allied Directive No. 38:

 

Rejection should not be based on the simple fact of membership in the Nazi Party or the Waffen S.S. in itself, but rather on the circumstances of entry and the degree of participation. I would recommend that the Security Officers be given positive instruction designed to approve a larger number of minor offenders and to reject only those major offenders whose voluntary entry and active participation clearly disqualify them as immigrants to Canada [Memorandum from G. de t. Glazebrook, October 17, 1950; see also Memorandum from Fortier to the Under-Secretary of State for External Affairs, October 25, 1950].

 

[165]    These documents confirm the ongoing use of the criteria set out in Allied Directive No. 38 and further emphasize the importance of personal interviews in which Security Officers specifically examine the wartime activities of prospective immigrants. From this point on, there are numerous references in the Canadian government documents to “minor offenders” and “major offenders” and Allied Directive No. 38.

 

[166]    Documents from 1950 to 1952 reference degrees of membership in German military organizations with more precision than at earlier dates, presumably as a result of the shifting rejection criteria that focussed more on culpability and responsibility rather than mere membership. In a Memorandum from RCMP Inspector MacNeil to Supt. McLellan, dated November 11, 1950, MacNeil gave the following instructions:

 

The case of members of the Waffen S.S., General S.S., Abwehr, S.D. and Gestapo is altogether different [from membership in the Nazi Party]. With regard to Germans who were members of these units, membership was entirely voluntary and it is felt that their membership there-in should be sufficient reason for rejection.

 

Membership in the token Waffen S.S. regiments formed in the occupied countries was not confined to volunteers. Individual cases would have to be judged separately on their own merits as there would be exceptions worthy of consideration.

 

 

[167]    On July 5, 1951, the Security Panel indicated that mere membership in the Waffen-SS would not be a cause for rejection, without investigation of whether service was voluntary and whether the person had joined prior to January 1, 1943 (Memorandum from Fortier to E.F. Gaskell, Secretary of the Security Panel, May 23, 1951). At this time a dispute also arose between the Immigration Branch and the RCMP regarding the rejection of “collaborators”; RCMP Inspector McClellan responded by stating:

 

... it has been the policy, where any doubt exists, to resolve that doubt in the favour of Canada, and as our sources of information must of necessity be very meagre, it is necessary to develop as much information as possible during personal interviews [Memorandum to Fortier, December 11, 1951; emphasis added].

 

[168]    During 1952 and 1953 – around the time period that Mr. Skomatchuk immigrated to Canada – the RCMP and Canadian government wrestled with suggestions to remove Waffen-SS and Nazi collaborators from the list of “major offenders”. Chief Screening Officer Kelly was the primary opponent to these proposed changes (Memorandum from Inspector Ashley to Kelly, September 10, 1952; and Memorandum from Kelly to Ashley, November 13, 1952); from 1951 to 1954 he was in charge of the security screening procedure.

 

[169]    Real movement for a change in the rejection criteria did not come until 1955. The Security Panel, in consultation with the RCMP and other departments, removed the automatic rejection of former members of most of the various Nazi organizations, requiring that each case be assessed on political and humanitarian grounds (See Minutes of the 59^th Meeting of the Security Panel, June 29, 1955; Minutes of the 13^th meeting of the Security Sub-Panel, October 18, 1955). Notably, the automatic ban was retained and affirmed against:

 

... former members of the Gestapo, concentration camp guards and persons, who, in the opinion of the examining officer, would be considered major offenders under Allied Control Council Directive No. 38.

 

[170]    Although this final change came after the time that Mr. Skomatchuk would have been interviewed in Liverpool and admitted to Canada, it shows that, throughout the relevant time period, an automatic ban was in place against “major offenders”, as defined in Allied Control Directive No. 38, and that this category included concentration camp guards.

 

[171]    In short, there are several references to Directive No. 38 in the Canadian immigration documents, showing a consistent concern among Canadian government members and RCMP officials for Nazi war criminals and collaborators. Major Offenders, as defined by Directive No. 38, were not to be admitted to Canada. Concentration camp guards were Major Offenders.

 

[172]    While the policy of exclusion of concentration camp guards appears to be very firmly rooted in the documentary evidence, the question arises of whether the policy was implemented in the field. Were prospective immigrants asked about their war time activities? Would someone who disclosed such a background have been rejected?

 

D. RCMP Security Screening by Mr. Owens

[173]    Dr. Avery was asked whether there was any question in his mind whether, during the security process, a person would have been asked about his activities during the war. Speaking as an historian, he responded as follows:

 

The guidelines were such that it would be almost inconceivable that those questions about war time activity would not have been asked. Because we don't have a complete record of all of those interviews, as a historian, I can't say 100 per cent, but it would be highly unlikely, extremely unlikely.

 

[174]    This response is consistent with a number of the filed documents. One example is contained in a memorandum dated May 10, 1948, from Commissioner Wood to the Deputy Minister, Immigration Branch, Department of Mines and Resources. In that document, Commissioner Woods states the following:

 

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

 

[175]    As noted (at para. 138), the parties agreed that Mr. Mitchell Owens conducted the security screening of Mr. Skomatchuk. From 1952 to 1953, Mr. Owens was the only RCMP Screening Officer in Liverpool in the United Kingdom. In this capacity, his testimony was that he would have interviewed any potential immigrant coming through the Liverpool office in 1952. Although Mr. Owens does not specifically remember interviewing Mr. Skomatchuk, it is not disputed that he did so.

 

[176]    Mr. Owens assisted the Court in his description of how the policies described above were put into place. Although the documents (and Dr. Avery’s testimony) tend to support a view that all former concentration camp guards – without exception – were to be excluded, Mr. Owens’ testimony was not as categorical.

 

[177]    Mr. Owens testified as to the procedures that he followed during the security screening. While there were no standard questions or procedures for an interview, Mr. Owens told us that he would inquire about any military or police service during the war, if the person “seemed to be eligible” for that service. He was required to closely scrutinize immigrants with Fascist, Nazi, or Communist party ties. When asked whether he had specific instructions with respect to WWII activities:

 

A. To say that there were instructions as such, yes, there was a certain ‑‑ for instance, tattoos of their blood types for the German prisoners, German soldiers and so on, that was a thing to watch for. If they had any rank at all, I would very possibly turn them down.

 

...

 

Q. Were you aware of any policies or guidelines that the government had developed in terms of prohibiting certain groups of people?

 

A. Yes.

 

Q. Were you applying those guidelines?

 

A. Yes. A lot of those organizations, I don't recall them. For instance, I think about the various groups that were part of the groups throughout the various countries. Some were on the side of Germany and some were on the side of Russia and some were against both. I did know the names at one time. I certainly cannot remember them now.

 

[178]    Mr. Owens was asked directly about how he would have dealt with someone who admitted to being a concentration camp guard.

 

Q. If someone had told you that they had trained at an SS camp and then were subsequently transferred to a forced labour camp, would you have admitted them to Canada?  Would you have security cleared them?

 

A. I would watch for if the person had any degree of education, which is probably not the right thing to say, but an ordinary person, an ordinary country person and so on, you could sense that. I could tell if they had anything else other than that.

You were aware of that condition, actually. If there was anybody that came in that had academic background and so on, and particularly if they didn't have any documents to show that and so on, I would be very diligent in establishing where they fit.

 

Q. When you say you would have been very diligent, what would you have done?

 

A. I would ask more questions, I guess. I would have gone more thoroughly to establishing.

 

Q. If someone had told you that they had been a concentration camp guard during World War II, what would you have done?

 

A. The same thing applied actually. If there was any indicator that they would be in with the German hierarchy and so on, I would probably turn it down outright as a guard. But if it was an ordinary individual, ordinary, I would ask more questions.

 

Q. But if someone told you they were a concentration camp guard, your evidence is that you would have turned them down outrightly?

 

A. Perhaps, yes.

 

[179]   When asked whether he remembered any person telling him that they had worked in a death camp, Mr. Owen’s response was:

 

A. I would be hard put to say that.

 

Q. But if they had told you that, can you give us a sense of whether they would have passed stage B or have been rejected?

 

A. I would be very suspicious if there was any suggestion that they were. But nevertheless, you took into account, particularly I go back to the idea of the education and so on, et cetera. But I would be more inclined to turn them down than approve them. [Emphasis added.]

 

 

[180]    Further questioning established that Mr. Owens would have taken into account the entire record of a person who admitted to being associated with concentration camp guard duties. It appears that, in spite of policy directives that might have said otherwise, he was sensitive to possible mitigating circumstances created by the upheaval and difficult political situation placed upon individuals during the wartime. For example, he had some sympathy for the lowest level of guard or for someone who had not served voluntarily. Mr. Owens stated that he would not be especially concerned about a young, poorly educated person who might have worked in the Soviet Army or German labour forces. However, an older individual who had a direct connection to a concentration camp would be a much greater concern.

 

[181]    Mr. Owens was not able to recall certain specific documents, such as Allied Control Directive No. 38. Further, while he did not recall the term “Death’s Head Unit”, he was familiar with the German name for the unit Totenkopfverbande. He stated that members of the SS Guard Units, with an identifying tattoo, were to be refused automatically. He also was not familiar with the term “Trawniki men”.

 

[182]    In summary, Mr. Owens was a very diligent RCMP Officer. His memory as to certain of the specific policy directives and relevant documentation appears to have dimmed. He does not recall interviewing Mr. Skomatchuk. These memory lapses, coming over 50 years after the events, are understandable. Nevertheless, some clear conclusions can be drawn from Mr. Owens’ testimony:

 

• He would have asked every prospective immigrant about his war time activities;

 

• He would have been very interested in someone who admitted to being associated with the SS;

 

• If he had known that a prospective immigrant was a concentration camp guard, he would have been diligent in assessing that person’s background and that he would have been “more inclined” to refuse such a person; and

 

• In spite of directives and policies to the contrary, he would have exercised some discretion in certain cases.

 

[183]    However, given that Mr. Owens did not recall ever interviewing a death camp guard, we cannot establish, with any certainty, whether Mr. Owens would have rejected Mr. Skomatchuk or taken his personal circumstances into account.

 

[184]    I turn now to review what Mr. Skomatchuk told Mr. Owens. Although Mr. Skomatchuk did not testify, the Minister read in a short portion of his examination for discovery. When asked about his interview in Liverpool, Mr. Skomatchuk expressed some lack of memory. However, he did acknowledge certain aspects of his interview:

 

A. I just remember that only one person spoke with me about political activities.

 

Q. And what was that conversation about, sir?

 

A. Whether, that was about whether I was somehow involved in Communist and Communist activities, whether I was involved with Nazis.

 

Q. And what did you answer?

 

A. And my answer was that I didn't have anything to do with any political parties.

 

Q. Were you asked by this man what you did during the war?

 

A. Oh, yes, where I worked.

 

Q. And what did you say?

 

A. Well, I responded to him what I did, that I worked on trenches and then I worked on the farm.

 

[185]    In final arguments, counsel for Mr. Skomatchuk expressed the concern with the Minister’s counsel’s questions on this issue. He suggested that the examining counsel should have been “fair to the man” and posed more questions. Mr. Skomatchuk was represented by experienced counsel at the discovery; he could have asked those further questions. Further, I do not know what additional questions could have been of assistance. In this read-in, Mr. Skomatchuk, under oath, states clearly that he told someone who interviewed him about his wartime activities that “I worked on trenches and then I worked on the farm”. It is unlikely that he would have changed this answer upon further questioning to include his experiences as a concentration camp guard. I see nothing improper about this line of questioning during the discovery. I take this read-in as evidence of what Mr. Skomatchuk told the RCMP Screening Officer.

 

E. Officer’s Exercise of Discretion

[186]    There remains a question of whether, on the facts of this case, Mr. Skomatchuk would necessarily have been rejected by Mr. Owens, the RCMP Officer who conducted the security screening. Mr. Skomatchuk argues that Mr. Owens’ testimony establishes that he would not necessarily have been rejected, even if Mr. Owens had believed he had been a concentration camp guard.

 

[187]    The problem with this assertion is that Mr. Skomatchuk never provided the information to Mr. Owens. In not admitting that he was a concentration camp guard during the war, Mr. Skomatchuk effectively foreclosed any questioning by the RCMP Officer regarding the particulars of that background.

 

[188]    The Supreme Court of Canada, in Canada (Minister of Manpower and Immigration) v. Brooks [1974] S.C.R. 850, [1973] S.C.J. No. 112 (QL), addressed this problem. In that decision, the Supreme Court was dealing with an immigrant to Canada who had not disclosed certain information during the application process. The provision of the Immigration Act, 1948 under consideration was s. 19, which provided that every person who came into Canada “by reason of any false or misleading information” is “subject to deportation”. Disclosure of the information would not necessarily have prohibited the landing of the individual. Nevertheless, the Court stated as follows:

 

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 in an answer or answers be such as to have concealed an independent ground of deportation. The untruth or 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. [Emphasis added.]

 

[189]    The reasoning of the Supreme Court in Brooks has been followed by the Federal Court in decisions dealing with proceedings of this nature (see, for example, Bogutin, above at para. 124; Baumgartner, above at para. 139).

 

[190]    The point is that Canadian officials responsible for the screening of Mr. Skomatchuk were foreclosed from making further inquiries. It would have been impossible for Mr. Owens to question Mr. Skomatchuk on how he came to be an SS Guardsman or what acts he had committed as a concentration camp guard. Whether Mr. Owens might have exercised some discretion is irrelevant; he never had the opportunity to do so.

 

F. Conclusion

[191]    In conclusion, there is no dispute that Mr. Owens, in his role as an RCMP Security or Screening Officer, interviewed Mr. Skomatchuk and asked him questions about his war time experiences. We also know, from the sworn testimony of Mr. Skomatchuk, that he told Mr. Owens that, from 1943 to 1945, he worked on trenches and on a farm. Mr. Skomatchuk did not tell Mr. Owens about his membership in the SS as a guardsman at concentration camps. If Mr. Skomatchuk had disclosed his experience as an SS Guardsman at one or more concentration camps, that disclosure may well have led to his exclusion from Canada.

 

VII. Summary of Findings

[192]    At the outset of these reasons, I identified a series of questions. In summary, I respond to those questions with the following findings, all of which are made on a balance of probabilities after careful consideration of the evidence:

 

1. An individual named “Skomatschuk” trained as an SS Guardsman at the SS Trawniki Training Camp and participated, as a guard, at the Poniatowa Labour Camp, in occupied Poland, and as a guard at concentration camps in the German Reich.

 

2. Mr. Skomatchuk is the same Guardsman Skomatschuk referred to in 1.

 

3. Mr. Skomatchuk concealed his wartime activities from Canadian immigration officials prior to coming to Canada.

 

4. It follows that Mr. Skomatchuk gained entry to Canada and subsequent Canadian citizenship through false representation or fraud or by knowingly concealing material circumstances.

 

VIII. Overall Conclusion

[193]    In conclusion, I find, on a balance of probabilities, after carefully scrutinizing the evidence before me, that, at the time of his immigration to Canada in 1952, Mr. Skomatchuk falsely represented to Canadian immigration officials that he had performed forced labour in the German Reich (Austria) from 1943 to 1945. He knowingly concealed his wartime association with SS Death’s Head Units, including as a concentration camp guard.

 

[194]    This conclusion is, in my view, sufficient to dispose of this matter. It is not necessary to determine whether he was “lawfully admitted” to Canada. However, for greater certainty, I also find that Mr. Skomatchuk: was not lawfully admitted to Canada; did not acquire Canadian domicile; and, was not a person of good character – all of which are contrary to the Immigration Act, 1948.

 

[195]    For these reasons, I find that Mr. Skomatchuk was admitted to Canada and obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

 

[196]    The Minister advised that, if successful, he would not seek costs. Consequently, there will be no order as to costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THIS COURT ADJUDGES AND DECLARES that:

 

1.  The Defendant Jura Skomatchuk obtained citizenship in Canada by false representation or fraud or by knowingly concealing material circumstances, within the meaning of s. 18(1)(b) of the Citizenship Act.

 

 

                                                                                                  “Judith A. Snider”

                                                                                    ___________________________

                                                                                                            Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX “A”

to the

Reasons for Judgment and Judgment dated August 17, 2006

In

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

and

 

JURA SKOMATCHUK

 

T-440-04

 

 

Citizenship Act, 1985 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. ... 18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances. (2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address. (3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. Canadian Citizenship Act, 1948 10. (1) The Minister may, in his discretion grant a certificate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose and satisfies the Court that, (a) either he has filed in the office of the Clerk of the Court for the judicial district in which he resides, not less than one nor more than five years prior to the date of his application, a declaration of intention to become a Canadian citizen, the said declaration having been filed by him after he attained the age of eighteen years; or he is the spouse of and resides in Canada with a Canadian citizen, or he is a British subject; (b) he has been lawfully admitted to Canada for permanent residence therein; (c) he has resided continuously in Canada for a period of one year immediately preceding the date of the application and, in addition, except where the applicant has served outside of Canada in the armed forces of Canada during time of war or where the applicant is the wife of and resides in Canada with a Canadian citizen, has also resided in Canada for a further period of not less than four years during the six years immediately preceding the date of the application; (d) he is of good character; (e) he has an adequate knowledge of either the English or the French language, or, if he has not such an adequate knowledge, he has resided continuously in Canada for more than twenty years; (f) he has an adequate knowledge of the responsibilities and privileges of Canadian citizenship; and (g) he intends, if his application is granted, either to reside permanently in Canada or to enter or continue in the public service of Canada or of a province thereof.   Immigration Act, 1948 2. In this Act ... (n) “landing” means the lawful admission of an immigrant to Canada for permanent residence; ... 20. (1) Every person, including Canadian citizens and persons with Canadian domicile, seeking to come into Canada shall first appear before an immigration officer at a port of entry or at such other place as may be designated by an immigration officer in charge, for examination as to whether he is or is not admissible to Canada or is a person who may come into Canada as of right. (2) Every person shall answer truthfully all questions put to him by an immigration officer at an examination and his failure to do so shall be reported by the immigration officer to a Special Inquiry Officer and shall, in itself, be sufficient ground for deportation where so ordered by the Special Inquiry Officer.   (3) Unless the examining immigration officer is of opinion that it would or may be contrary to a provision of this Act or the regulations to grant admission to or otherwise let a person examined by him come into Canada, he shall, after such examination, immediately grant admission to or let such person come into Canada.   ... 50. Every person who ... (f) knowingly makes any false or misleading statement at an examination or inquiry under this Act or in connection with the admission of any person to Canada or the application for admission by any person; ... is guilty of an offence and is liable on summary conviction, for the first offence to a fine not exceeding five hundred dollars and not less than fifty dollars or to imprisonment for a term not exceeding six months and not less than one month or to both fine and imprisonment, and, for the second offence to a fine not exceeding one thousand dollars and not less than one hundred dollars or to imprisonment for a term not exceeding twelve months and not less than three months or to both fine and imprisonment, and, for the third or a subsequent offence to imprisonment for a term not exceeding eighteen months and not less than six months.

Loi sur la citoyenneté, 1985 10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la date qui y est fixée : a) soit perd sa citoyenneté; b) soit est réputé ne pas avoir répudié sa citoyenneté. (2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l’a acquise à raison d’une admission légale au Canada à titre de résident permanent obtenue par l’un de ces trois moyens.     ... 18. (1) Le ministre ne peut procéder à l’établissement du rapport mentionné à l’article 10 sans avoir auparavant avisé l’intéressé de son intention en ce sens et sans que l’une ou l’autre des conditions suivantes ne se soit réalisée : a) l’intéressé n’a pas, dans les trente jours suivant la date d’expédition de l’avis, demandé le renvoi de l’affaire devant la Cour; b) la Cour, saisie de l’affaire, a décidé qu’il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.   (2) L’avis prévu au paragraphe (1) doit spécifier la faculté qu’a l’intéressé, dans les trente jours suivant sa date d’expédition, de demander au ministre le renvoi de l’affaire devant la Cour. La communication de l’avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l’intéressé.   (3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d’appel. Loi sur la citoyenneté canadienne, 1948     10. (1) Le Ministre peut, à sa discrétion, accorder un certificat de citoyenneté à toute personne qui n’est pas un citoyen canadien, qui en fait la demande et démontre à la satisfaction du tribunal, a) qu’elle a produit au greffe du tribunal du district judiciaire où elle réside, au moins un an et au plus cinq ans avant la date de sa demande, une déclaration de son intention de devenir un citoyen canadien, ladite déclaration ayant été produite par cette personne après qu’elle a atteint l’âge de dix-huit ans; ou qu’elle est le conjoint d’un citoyen canadien et réside avec lui au Canada, ou qu’elle est un sujet britannique; (b) qu’elle a été licitement admise au Canada pour y résider en permanence; (c) qu’elle a résidé continûment au Canada pendant un an immédiatement avant la date de sa demande et qu’en outre, sauf si la personne qui présente la demande a servi hors du Canada dans les forces armées du Canada en temps de guerre, ou si elle est l’épouse d’un citoyen canadien et réside avec lui au Canada, elle a résidé au Canada durant une période supplémentaire d’au moins quatre ans au cours des six années qui ont immédiatement précédé la date de la demande; d) qu’elle a une bonne moralité; e) qu’elle possède une connaissance suffisante de l’anglais ou du français, ou, si elle ne possède pas cette connaissance, qu’elle a résidé continûment au Canada pendant plus de vingt ans; f) qu’elle a une connaissance suffisante des responsabilités et privilèges de la citoyenneté canadienne; et g) qu’elle se propose, une fois sa demande accordée, soit de résider en permanence au Canada, soit d’entrer ou de demeurer au service public du Canada ou de l’une de ses provinces.   Loi sur l’immigration, 1948 2. Dans la présente loi, l’expression ... n) «réception» signifie l’admission légale d’un immigrant au Canada aux fins de résidence permanente; ... 20. (1) Quiconque, y compris un citoyen canadien et une personne ayant un domicile canadien, cherche à entrer au Canada doit, en premier lieu, paraître devant un fonctionnaire à l’immigration, à un port d’entrée ou à tel autre endroit que désigne un fonctionnaire supérieur de l’immigration, pour un examen permettant de déterminer s’il est admissible ou non au Canada ou s’il est une personne pouvant y entrer de droit. (2) Chaque personne doit donner des réponses véridiques à toutes les questions que lui pose, lors d’un examen, un fonctionnaire à l’immigration, et tout défaut de ce faire doit être signalé par ce dernier à un enquêteur spécial et constitue, en soi, un motif d’expulsion suffisant lorsque l’enquêteur spécial l’ordonne. (3) Sauf s’il estime qu’il serait ou qu’il peut être contraire à quelque disposition de la présente loi ou des règlements d’accorder à une personne par lui examinée l’admission au Canada, ou de la laisser autrement entrer au Canada, le fonctionnaire examinateur à l’immigration doit, dès qu’il a terminé cet examen, accorder à la personne en cause l’admission au Canada, ou l’y laisser entrer. ... 50. Est coupable d’une infraction et encourt, sur déclaration sommaire de culpabilité, pour la première infraction, une amende d’au plus cinq cents dollars et d’au moins cinquante dollars ou un emprisonnement d’au plus six mois et d’au moins un mois ou à la fois l’amende et l’emprisonnement et, pour la deuxième infraction, une amende d’au plus mille dollars et d’au moins cent dollars ou un emprisonnement d’au plus douze mois et d’au moins trois mois ou à la fois l’amende et l’emprisonnement et, pour la troisième infraction ou une infraction subséquente, un emprisonnement d’au plus dix-huit mois et d’au moins six mois, quiconque ... (f) sciemment fait une déclaration fausse ou trompeuse au cours d’un examen ou d’une enquête prévue par la présente loi ou à l’égard de l’admission d’une personne au Canada ou de la demande d’admission de qui que ce soit; ...

 

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-440-04

 

STYLE OF CAUSE:                          THE MINISTER OF CITIZENSHIP AND IMMIGRATION v. JURA SKOMATCHUK

 

 

PLACES OF HEARING:                  St. Catharines, Ontario and

                                                            Ottawa, Ontario

 

DATES OF HEARING:                    June 5, 6, 8, 12, 13, 14, 19, 27 and 28, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          SNIDER J.

 

DATED:                                             August 17, 2006

 

 

APPEARANCES:

 

 

Marlene Thomas Jamie Todd Angela Marinos Bruce Hughson	FOR THE PLAINTIFF
Eric Hafemann Paul Williams	FOR THE DEFENDANT

 

SOLICITORS OF RECORD:

 

 

John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE PLAINTIFF
Eric Hafemann, Esq., Waterloo, Ontario	FOR THE DEFENDANT