Who needs evidence?

Report Newsmagazine [ [email protected] ] | Law: War Crimes | pp. 26-27
July 8, 2002 | Kevin Michael Grace [ [email protected] ]

Ruled innocent of war crimes, but still in danger of deportation.
The Odynsky case proves Canadian citizenship is a meaningless protection

Canadian citizenship is highly prized everywhere. So it would probably confound those granted landed immigrant status to know they are better off without it. And it would likely amaze everyone else to know that resident aliens have more rights and privileges than citizens.

Wasyl Odynsky came to Canada in 1949, one of the many displaced persons to whom this country became a sanctuary. He worked hard, saved enough to buy a house in Etobicoke, Ont., and then retired. He has been, by all accounts, a model citizen. Now the federal cabinet is debating whether to deport him.

Mr. Odynsky, an ethnic Ukrainian, was born into a part of Poland that no longer exists. In 1941, his homeland was overrun by the German army. He was dragooned into forced labour. After escaping, he learned his family had been targeted for retribution. So he returned and was made a guard at a forced-labour camp.

In March, Justice W. Andrew MacKay of the Federal Court of Canada ruled that Mr. Odynsky was innocent of any war crimes, in particular, an SS massacre of Jews in his region in 1943. Mr. Justice MacKay, however, did find him guilty by association. Mr. Odynsky is imperiled because of things he is alleged not to have said to Canadian immigration officials 53 years ago.

Mr. Justice MacKay wrote, "After careful consideration of the evidence presented, on a balance of probabilities it is more probable than not Mr. Odynsky did not truthfully answer questions that were put to him concerning his wartime experience."

Why should this matter? Twenty years ago it was widely believed that Canada was rife with Nazis. Sol Littman of Toronto's Simon Wiesenthal Centre claimed, in a letter to prime minister Brian Mulroney, to have evidence that the notorious Josef Mengele had applied to enter Canada as an immigrant. In response, Mr. Mulroney established the Deschenes Commission; it derided Mr. Littman's claim but concluded it was possible some Nazi war criminals were still here. The Mulroney government passed legislation to allow the prosecution in Canada of those alleged to have committed war crimes in other countries.

Only one man, Imre Finta, alleged to have committed crimes against Jews in Hungary, was ever prosecuted. He was acquitted without even having to present evidence in his own defense. The prosecutor admitted afterward that "the time and effort may simply be too great" to warrant further trials. Meanwhile, those accused of war crimes were dying off. Canada's War Crimes Unit opted for another strategy: civil prosecutions alleging that naturalized Canadian citizens had falsified their particulars when they came to Canada. There were two strong advantages to this approach:
1) Criminal standards of evidence would not apply; and
2) Those prosecuted would be ineligible for legal aid.

Canadians could now be stripped of their citizenship on a "balance of probabilities." The Federal Court has decided 10 cases; the federal government has won seven. The government's argument is simple and elegant. Immigration officials must have asked Mr. Odynsky and the others about Nazi associations (because that was government policy), and they must have lied (because they would not have been admitted otherwise).

There exists no documentary evidence against these men. According to Lubomyr Luciuk of the Ukrainian Canadian Civil Liberties Association, "They destroyed the documents on Odynsky and the others." Professor Luciuk argues that these civil prosecutions "stand justice on its head." He contrasts Mr. Odynsky's treatment to that of refugee claimants whose cases he examined while serving on the Immigration and Refugee Board (IRB): "At the board, we gave people the benefit of the doubt." He adds, "I've written to the [immigration] minister about this. The board is listening to people who come with no ID, with fake ID, with concocted stories; we catch them time and time again, and we still admit them into Canada. I would not be surprised that people who participated in atrocities around the world are getting through the IRB."

The Supreme Court of Canada ruled in 1986 that all residents of Canada, regardless of nationality, have the full rights of citizens. Subsequent Federal Court rulings have made it almost impossible to deport bogus refugee claimants. (See story, page 24.) Mahomoud Mohammad Issa Mohammad, a Palestinian refugee claimant sentenced to 17 years imprisonment for his part in the murderous terrorist attack on an El Al airliner in Athens in 1968, remains in Canada 14 years after being ordered deported. Unlike Mr. Odynsky, who was found guilty of no crimes. Mohammad has received a small fortune in legal aid, Mr. Odynsky has been left a pauper; he has spent almost $500,000 in his own defense.

It has not escaped notice that the Canadian government has pursued certain ethnic groups vigilantly, while treating others leniently. John Kimble Abbott, a former senior official of the Immigration Department, confirms that in the early 1960s he spearheaded an investigation of Chinese who had arrived in Canada after the ban on their immigration was lifted in 1947. He reports that the investigation concluded that up to three-quarters of them had given false identities and had been sponsored by Triad gangsters. The department decided to allow them to stay for humanitarian reasons if they turned in their sponsors. Triad intimidation made this impossible, and the government dropped the matter.

Canadian Alliance immigration critic Diane Ablonczy says the lack of "due process" in the Odynsky case and others is "unacceptable." She argues, "As a general principle, if someone is subject to a severe sanction, such as a loss of citizenship, then 'beyond a reasonable doubt' must be the legal standard."

In a press release, Canadian Jewish Congress (CJC) national president Moshe Ronen applauded Mr. Justice MacKay's ruling. "Odynsky's past has caught up with him at last," he said. "The concentration camp guards at Trawniki were responsible for the murder of hundreds of Jewish prisoners... People involved in such crimes should not have the privilege of living out their days in comfort and ease in a country like Canada." CJC public affairs director Ron Singer was contacted by this magazine. He promised to make a CJC official available for an interview; the next day he said, "No one is available." He refused to answer questions about the Odynsky case.