Guy Goulard | Nov. 03, 1998 | Eugene Harasymiw
Complaint regarding McLellan

11024 - 82 Ave.
Edmonton, Alberta T6G 0T2
ph. (780) 431-9855; fax (780) 457-5170

November 3, 1998     Faxed to: (613) 995-5615

Guy Y. Goulard
Commissioner for Federal Judicial Affairs
99 Metcalfe St. - 8th floor
Ottawa, ON
K1A 1E3

Dear Mr. Goulard:

This letter is prepared on behalf of the approximately 1,000 members of the Alberta Ukrainian Self-Reliance League (founded in 1927) and has the full endorsation of the National Executive of our organization.

We draw to your attention a situation which, we believe, has seriously impaired the administration of justice for the Federal Court of Canada, in that its independence and impartiality have been attacked and compromised. That attack occurred during the last week of September, 1998 in statements attributed to Justice Minister Anne McLellan.

Ms. McLellan was reacting to the decision of Mr. Justice William McKeown in the denaturalization and deportation case against Peter Vitols. Mr. Justice McKeown found that Mr. Vitols had not obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

A careful review of print media coverage of the Justice Minister's reaction to the Vitols decision confirms that Ms. McLellan:

a) was "disappointed in the judge's decision,"
b) "disagreed with the decision," and
c) expressed "disappointment that Vitols will be allowed to remain in Canada."

In each such news report, Ms McLellan's remarks echoed those of lobby groups which expressed shock, indignation, disbelief and outrage with Justice McKeown's ruling and the reasoning he used to arrive at his decision, such that her remarks had the appearance of being given in concert with the reaction of those of the lobby groups.

On September 25, 1998 our organization e-mailed Ms. McLellan asking her to clarify or retract her remarks, or else resign. On September 29, 1998 our organization issued a Press Release along the same lines. Both pieces of correspondence were sent to all Members of Parliament. A number of MP's have expressed interest in pursuing this matter. In contrast, there has been absolutely no response forthcoming from the Justice Minister to date.

It is our contention that the remarks made by the Justice Minister represent a clear attack on the independence of the Federal Court of Canada and therefore on the administration of justice in this country. This interference with independence and impartiality particularly affects those judges of the Court who will be, or have already been, assigned to hear future denaturalization and deportation cases. A series of at least 46 such cases are in the works against individuals accused of entering Canada under false pretenses after World War II. These individuals allegedly hid from Canadian officials events that Ms McLellan has publicly referred to as, in her words, "implicating" them in war crimes and crimes against humanity.

In our view, and based on legal research, it is evident that the Justice Minister's remarks cannot withstand the very serious charge of direct interference in the independence of the judiciary for several reasons:

1. The test of what constitutes an attack on the independence of a judicial tribunal was enunciated in the Alberta Queen's Bench decision of the late Justice D.C. McDonald in the case of R. v. Campbell [1995] 2 W.W.R. 469. That test is whether an informed and reasonable person would perceive the remarks as resulting in an impairment or diminution of the independence of the court vis-a-vis the executive government.

It is our respectful view that Ms McLellan's remarks on the unappealable decision of Justice McKeown were clearly directed at those Federal Court judges scheduled to hear future cases involving fundamentally similar cases, and were calculated to prompt and influence them to reach a conclusion with which she agreed -- i.e. that the "accused" be denaturalized and deported.

2. Ms McLellan's remarks serve to erode the constitutional guarantee of an independent tribunal by attacking the purpose of such independence, which is to ensure that, in the trial of persons for alleged offences, the rule of law prevails. The late Justice McDonald made it perfectly clear that the rule of law "signifies that in proceedings in which a person is charged with an offence it is not the executive or legislative branches of government which decide whether an accused is guilty, or, if guilty, what the penalty will be." Those decisions, he added, "are to be made by a court which is independent of any influence or pressure by the executive and legislative branches of the government."

3. Justice Minister McLellan's comments provide a clear example of the desecration of one of the six essentials required to support judicial independence, as identified by the Rt. Hon. Sir Thomas Eichelbaum, Chief Justice of New Zealand. We quote from his article in the New Zealand Law Journal [1993] page 90:

"First, independence in judicial decision-making [means] freedom from Government pressure, independence from the other branches of Government, [and] non-alignment with any group in society..."

On all three counts, the remarks attributed to Ms McLellan cannot but lead an informed and reasonable person to conclude that she had set out to impair the impartiality and independence of Federal Court judges.

On this basis, we request that your office undertake appropriate action to remove the appearance of interference stemming from the Justice Minister's comments, before those remarks take their inevitably deleterious effect on the upcoming denaturalization and deportation cases involving the War Crimes Unit of the Justice Department, over which Ms. McLellan has ministerial control and direction. Such action should include:

a) advising the judges assigned to those cases to invite counsel for the "accused" to provide submissions as to each judge's impartiality and accountability in light of the Minister's comments, as was precisely the situation leading up to the case of R. v. Campbell;

b) advising the Justice Minister that the hearing of future denaturalization and deportation cases brought by the War Crimes Unit of the Justice Department will be curtailed until such time as appropriate corrective measures are taken; and

c) referring to a superior court as a Reference Case the adjudication of the issues raised in this letter.

In view of the seriousness of this matter, we insist that appropriate action be taken to ensure the rights of the "accused" are not further violated, and that the remarks of the Justice Minister do not thereby succeed, through inaction, in bringing the Canadian justice system into total disrepute.

Yours truly,

Eugene Harasymiw, LL.B. President


Justice Julius A. Isaac, Chief Justice of the Federal Court of Canada
Fax: (613) 952- 6439

Leon Benoit, MP - Reform Party immigration critic
Fax: (613) 992-4172

Peter McKay, MP - Progressive Conservative Party justice critic
Fax: (613) 992-2337

Michael Zaleschuk, Pres., National Exec., Ukrainian Self-Reliance League
Fax: (306) 729-2173

John B. Gregorovich, Chairman, Ukrainian Canadian Civil Liberties Assoc.
Fax: (416) 767-2658