Martin Cauchon | Jul. 27, 2002 | Eugene Harasymiw
Critique of David Matas submission

10611 - 110 Avenue
Edmonton, Alberta T5H 1H7
Phone/fax: (780) 457-5170

July 27, 2002

The Honourable Martin Cauchon           Faxed to: (613) 995-0114
Minister of Justice and Attorney General
House of Commons, Parliament Bldgs.
Ottawa, ON K1A 0A6

Dear Mr. Cauchon:

The membership of our organization has requested that the Civil Liberties Standing Committee respond to Mr. David Matas' "Open letter to the Minister of Justice" dated June 17, 2002, as posted on the B'nai Brith website.

Our purpose is to illustrate that the allegations leveled by Mr. Matas are inaccurate and unsubstantiated, and that their apparent purpose is to mislead the Minister and the government. In fact, considering that the three gentlemen Mr. Matas and B'nai Brith assail were all Ukrainian by nationality, a good case could be made that the statements constitute willfully promoting hatred against an identifiable group, contrary to section 319(2) of the Criminal Code.

Consider the following:

1. Mr. Matas openly refers to the 3 gentlemen (clearly belonging to an "identifiable group" as a "section of the public distinguished by � ethnic origin" within the meaning of s. 318(4) of the Code) as "war criminals" and further that they are included among those "who commit atrocities". For the sake of brevity, I will refer to the case of Wasyl Odynsky, presently before the Special Committee of Council, although the two other cases contain close parallels.

Precisely on what basis Mr. Matas alleges Mr. Odynsky's war criminality or the commission by him of atrocities is not specified. Mr. Matas' conclusion could not have come from the Federal Court judge's decision, in which Mr. Odynsky was specifically found not to have committed war crimes, atrocities or any other reprehensible acts. Nor could Mr. Matas' conclusion have come from any definition of "war crimes" as found in s. 7 (3.76) and (3.77) of the Code (primarily because Mr. Odynsky was never charged with war crimes); otherwise, Mr. Matas would have specified which component of the offence applied to Mr. Odynsky's actions. He didn't, because he couldn't, because Mr. Odynsky's actions wouldn't fit any such component.

Hence, Mr. Matas' characterization of Mr. Odynsky's actions are clearly inaccurate and unsubstantiated. Furthermore, they are obviously calculated to mislead the Special Committee into removing Mr. Odynsky's citizenship.

2. Mr. Matas states that Federal Court Judge MacKay found that Mr. Odynsky had lied while making application to come to Canada. What he fails to mention is that:

  • There were no documents presented by the government to prove its case
  • There were no prosecution witnesses to corroborate the alleged lies
  • There was direct evidence before the judge to indicate that no such lies were uttered.
  • This latter point brings to mind Mr. Oberlander's case. Here, Mr. Matas fails to mention that Judge MacKay's decision came under severe criticism by Canada's leading expert on evidence, retired Justice Roger Salhany. Justice Salhany pointed out at least 4 fundamental flaws in the Oberlander reasons for decision, which, we submit, are equally applicable to other denaturalization and deportation cases:

  • The admission of and reliance upon evidence which was not admissible in law
  • The making of erroneous findings of fact from evidence, and subsequent reliance on those findings to reach a conclusion
  • The drawing of an unreasonable inference from the testimony of a witness, and then placing reliance on that inference in reaching a conclusion
  • The failure to apply the correct onus of proof or incorrectly applying that onus.
  • Justice Salhany concluded his critique with these damning remarks:
    "The evidence relied upon by the judge would never be relied upon in a Canadian court of law to establish that something happened."

    Our submission is that the Special Committee of Council cannot ignore these expert and uncontested conclusions.

    3. Mr. Matas states that each of the 3 men he identifies "has had the benefit of Canada's justice system". This statement is, at best disingenuous, at worst it is preposterous. The Supreme Court of Canada has in Canada (Minister of Citizenship and Immigration) v. Tobiass et al. (1997), 218 N.R. 81 clearly adopted the reasoning in Canada (Secretary of State) v. Luitjens (1992), N.R. 173 (F.C.A.) wherein it was held that Federal Court hearings of this type "are not determinative of the [accused's] legal rights". What this means is that such trials can only result in a recommendation that is forwarded to the Minister of Citizenship and Immigration. That Minister, in turn, may or may not refer the matter to the Special Committee of Council. It is that Special Committee of Council which makes the determination as to whether there is merit to revoking the person's citizenship. In the meantime, the courts reasoned that the accused did not warrant the benefit of the Charter of Rights and Freedoms.

    Mr. Matas cannot have it both ways. A person who has had his case referred to the Special Committee of Council could not possibly receive a "benefit" unless and until that Special Committee makes its determination. Thus, it is illogical to state that these men received justice.

    In view of the unsubstantiated allegations and the inaccuracies in statements made by Mr. Matas, it is our request that:

  • You urge your fellow members of the Special Committee of Council to make their determination in favor of all 3 men retaining their citizenship; and
  • Your department commence action to determine whether Mr. Matas' public statements come within the parameters of s. 319(2) of the Criminal Code.
  • In pursuing the latter request, we are mindful of the meaning ascribed to the term "hatred" by Canadian courts:

  • R. v. Andrews, [1990] 3 S.C.R. 870
  • R. v. Keegstra, [1990] 3 S.C.R. 697
  • Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 (Cdn. Human Rights Trib.)
  • Certainly, in responding to our legitimate requests, we expect that your Ministry and the government will not be influenced in any way by certain extraneous factors. These would include the extent of financial contributions toward your governing party that may have been made by any lobby group attempting to influence you to continue the denaturalization and deportation procedure discussed in this letter. After all, we are confident you will agree that Canadians do not want to see "justice" being made available to the highest bidder.

    Yours truly,

    Eugene Harasymiw, LL.B.
    Chair, Civil Liberties Standing Committee


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

    John Gregorovich, Chair, Ukrainian Canadian Civil Liberties Association
    Fax: (519) 323-9349

    Hon. Don Boudria, Chair, Special Committee of Council, Parliament of Canada
    Fax: (613) 996-9123

    Peter Goldring, M,P.
    Fax: (780) 495-5142

    Diane Ablonczy, M.P., Citizenship and Immigration critic, Can. Alliance Party
    Fax: (403) 282-3587

    Rahim Jaffer, M.P.
    Fax: (780) 495-8403

    James Rajotte, M.P.
    Fax: (780) 495-4485

    Vic Toews, M.P., Justice Critic, Canadian Alliance Party
    Fax: (613) 995-1049