Paul Grod | Jun. 20, 2002 | Eugene Harasymiw
Legal advice to NJC

[Keep Confidential?]

From: Eugene Harasymiw [mailto:[email protected]]
Sent: Thursday, June 20, 2002 3:14 PM
To: '[email protected]'
Subject: D & D action plan - assistance

Paul Grod:

Although I was not contacted directly on this matter, my attention was drawn to your Email from yesterday. So, I offer my comments on a couple of the issues raised.

1. Beitner's "complicity" argument

The concept of "complicity" was, to my knowledge, first enunciated in the deportation case entitle Ramirez. This was a poor schmuck who didn't have the finances to hire a proper lawyer, resulting in a court judgment that went totally unchallenged. Since the case is "on the books", it is now a precendent for cases that follow, Mr. Odynsky's being one of them.

The first place to attack is to ask what ever happened to the policy that Mr. Rock clearly enunciated way back when he stated no proceedings would be taken unless there was clear evidence of war criminality. So, I would ask Beitner when that policy changed to the "complicity" line, how was that change announced, or was it ever made public, and, for the Minister, can he explain why the change was made and why the public knows nothing about it.

Secondly, the concept is rooted in a notion that complicity arises where the individual "contributed" to the crime indirectly, being aware that it was being committed. I would strongly argue that no one, under any circumstances, who is coerced/forced into "service" for another can possibly form an intent to contribute to the crime of another. What is more, if I understand Mr. Odynsky's situation, I believe he was actually unaware of the events that (purportedly) were occurring within the camp, given the nature of that place as a labour camp. I believe this was a finding of the judge.

Thirdly, on the "active membership is not required" argument, but just being a member of an organization is enough to "convict" approach, you are quite right in pointing out that this is totally unacceptable on criminal law defence grounds. The grounds you set out made reference to "guilt by association".

Now, as I pointed out in my letter to the full Cabinet dated June 3, 2002 (not that I expect you had occasion to read it), this very issue came up in the recent case (decided March 6, 2002) of R. v. Ojiofor. The accused faced deportation based on a potential conviction on a narcotics trafficking charge. The prosecution kept zeroing in on the company that he kept since recently arriving in Canada. The presiding judge took a very dim view of that line of attack, and in a 3-judge unanimous decision, acquitted the accused, adding these remarks about the prosecution's entire case, centering his remarks around the "guilt by assoication" reasoning used:

"...It [guilt by association] offends one of the most fundamental principles of the criminal law. People can only be convicted for what they do, not for the company they keep." (Judge Doherty, Ont. Court of Appeal).

Now, Mr. Beitner should be asked whether, if Mr. Ojiofor was not deported from Canada because of the unsuccessful use of the "guilt by association" prosecutorial approach, then why should Mr. Odynsky (or any of the others) be required to give up their citizenship by the Special Committee of Council applying this same odious principle? In short, the argument is: if the Courts of Canada won't accept the approach, why should the Committee?

In my professional opinion, had Ramirez and the impecunious other victims of the "complicity" approach had the resources to challege this to the Supreme Court, I believe the doctrine would (and some day will) be totally discredited.

2. Charter argument

The quoted statement is only half truth. The case in which the d & d process was "challenged" was one where the applicant claimed he was entitled to Charter protection as a result of the process at the Federal Court level. What the Supreme Court stated was that, no, the accused was not so entitled, since the Federal Court process (where the Judge merely makes a "recommendation" to the Citizenship & Immigration Minister, but does not decide the merits of the deportation issue) "is not determinative of the accused rights."

So, my question is: then, which stage of d &d is determinative of the accused rights? The answer must be either the Citizenship Minister only acting alone; or else the Special Committee of Council. And it is one of those two where I believe Charter rights should come into play. If I'm wrong and they don't, then the govt. is saying that a person who is not a citizen of Canada, and who committed an offence in another country or who committed one here in Canada, is entitled to Charter protection, while a person who is a Canadian citizen, but who is forced to endure the d & d process (regarding bogus World War II accusations) is not entitled to Charter protection. This, of course, is a travesty.

Thus, to summarize this last point, the Supreme Court has NOT stated that the d & d process is just fine; it has stated that a person's Charter rights don't come into play at the Federal Court trial/hearing level. The case in question has its origins in Canada (Sec. of State) v. Luitjens (1992), N.R. 173 (S.C.A.) as confirmed by the Supreme Court in Canada (M.C.I.) v. Tobiass et al. (1997), 218 N.R. 81.

These are just some random thoughts. I would love to help out further; however, I am booked on a trip to Saskatchewan over the next few days, so won't be back till late Sunday night.

Best of luck, and I know you'll do well before the Minister and this Beitner character.

Yevhen Harasymiw

From: Grod, Paul [mailto:[email protected]]
Sent: Thursday, June 20, 2002 2:11 PM
To: 'Eugene Harasymiw'
Subject: RE: D & D action plan - assistance

Thanks for your comments Eugene. I will include you on these matters directly as you have some very good insights. Would you mind if I circulated your comments to others on the NJC.
Pavlo Grod