Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 21 - Appendix 5900L1/C-16, 21 "1"

by David Matas

(Submission of B'nai Brith Canada Institute for International Affairs to the Standing Committee on Legal and Constitutional Affairs, Senate, September 26, 2000)

The Government switched in 1994 from prosecution of Nazi war criminals and criminals against humanity to revocation of citizenship and deportation because of the Supreme Court of Canada decision in the case of Imre Finta. We now have six years of experience with the remedy of revocation of citizenship and deportation, an experience that B'nai Brith has followed closely. As a result we have a number of comments on the adequacy of the present Citizenship Act and Bill C-16.

B'nai Brith approaches all the legal remedies available against war criminals and criminals against humanity with two principles in mind. We want each remedy to be efficient, so that the accused can not drag out proceedings interminably and ultimately get away.

We also want proceedings to be fair. Legal proceedings must assert our values in the face of Nazi values, give to the perpetrators the justice they denied their victims. The legacy we want to leave from the Holocaust is a system of justice which serves as a deterrent, which memorializes the victims by asserting that these tragedies must never happen again.

As well, fairness does not just mean fairness to the individual caught up in proceedings. It also means fairness to the victims of the Holocaust. Not every case succeeds that the Government brings to court against a person with a Nazi past. When a case fails because of a denial of fairness to the Government, ultimately it is the victims that are denied justice.

Regretfully, neither the Citizenship Act nor Bill C-16 fully exemplifies the principles of efficiency and fairness. Revocation of citizenship is not as efficient as it could be. Nor, is it is fair as it should be. Furthermore, Bill C-16 makes matters worse rather than better.

I. Federal Court Revocation

Under the present Act and under Bill C-16, citizenship is revoked by the Governor in Council. All the Federal Court does is decide the factual issue whether there was fraud, false representation or knowingly concealing material circumstances that led to the granting of citizenship.

In the case of Wasily Bogutin, the Federal Court decided that Bogutin had obtained citizenship by fraud, false representation or concealing material circumstances on February 20, 1998. The cabinet took till July 15, 1998, an unconscionable six months, to strip Bogutin through order in council of his citizenship, even though the procedure was no more than a formality.

In the cases of Vladimir Katriuk, Serge Kisluk and Helmut Oberlander, the Federal Court Trial Division decisions were January 29, 1999 against Katriuk, June 7, 1999 against Kisluk and February 28, 2000 against Oberlander. There is no public information that the cabinet has yet to decide on revocation of citizenship in any of these cases.

We have been informed that for Katriuk, decided in Federal Court a year and a half ago, there has yet to be a Governor in Council decision. This delay in Katriuk makes a mockery of the present system. It is also a delay against which the present system should be judged. If the Government takes a year and a half and counting to decide what should be a simple matter after the Federal Court decision, how can the Government possibly defend this system as reasonable?

War criminals should lose their citizenship as soon as they lose their court cases. Any legal protection given by the Governor in Council to the person concerned can also be given by the Federal Court Trial Division.

The Governor in Council can, admittedly, allow a person who hid a past that cut off inquiries about war crimes or crimes against humanity to stay in Canada on humanitarian grounds, something the Federal Court cannot now do. It is our position that no person who, to get into Canada, hid a past that cut off inquiries into war crimes or crimes against humanity should ever be allowed to stay in Canada on humanitarian grounds.

The Governor in Council procedure should not be necessary once the Federal Court has decided that a person has obtained his/her citizenship in a prohibited manner. The Federal Court should have power to revoke citizenship on its own.

Recommendation: The Federal Court Trial Division, and not the Governor in Council, should have the power to revoke citizenship.

Drafting suggestion: Amend section 16(1) and (2) of the Bill to replace "Governor in Council" with "Federal Court Trial Division."

II. Appeals

Once the Government shifted to denaturalization/deportation, counsel for alleged war criminals started to raise a number of legal arguments that, if accepted, would prevent the denaturalization/deportation laws from working. There were worrying rulings from Mr. Justice Noël in the Johann Dueck case¹ in response to two of these arguments.

One ruling was that the Government had to prove more than a lie that foreclosed inquiries². It had to prove the very lie that was alleged in the notice of revocation of citizenship. Since the Government had alleged Dueck was a shooter, it had to prove Dueck was a shooter, or, at the very least, prove he was a member of the shooting unit, the Selidovka police. Since the Government did not prove that, Dueck, despite his lies, was off the hook.

The Court erred, in my opinion, by ruling that the government must prove its allegations of what was not disclosed on entry made in the notice of revocation of citizenship. In my view, that is an error of law, because what should be at issue in a revocation hearing is the fraud, false representation or concealing material circumstances of the person concerned.

Allegations of what was not divulged are there to show what inquiries were foreclosed by the fraud, false representation or concealing material circumstances and for no other purpose. There is no need to show that the allegations of what was not divulged are true in order to show that citizenship was obtained by fraud, false representation or concealing material circumstances. Any fraud, false representation or concealing material circumstances proved at the trial which led to obtaining of citizenship should be within the scope of the notice of revocation.

That ruling of the judge, misguided though I believe it was, is correctable in other cases by more precise notices. It is even correctable in the Dueck case by starting a new case against Dueck with a new notice. An even more worrying ruling of Mr. Justice Noël was that lying before June 1950 about participation in war crimes to get entry to Canada did not matter, because before June 1950, even though there was security screening in fact, there was no legal basis for that screening. Because security screening had no legal foundation, a lie told in the process of security screening was immaterial to entry.

The judge ruled that there was no regulation under the Immigration Act before June 1950 establishing security screening. Counsel for the Minister had argued that security screening could be supported by the Crown prerogative, without regulation. The Court ruled that the Crown prerogative could not provide a basis for security screening, because the field of security screening was occupied by the Immigration Act by the mere fact that a power to regulate was given by the Immigration Act even when there was no regulation exercising that power³.

This second ruling that a pre-June 1950 lie was immaterial to entry is also, in my opinion, an error of law. A legislative field is normally considered occupied when there is legislation in place exercising a power that has been granted. A field is not normally considered occupied when a power to legislate has been granted, but the power is not exercised.

The Citizenship Act and Bill C-16 prohibit an appeal from a decision of a Federal Court decision on denaturalization. The errors I claim Mr. Justice Noël made in the Dueck case could have been appealed if there were an appeal. The Dueck case shows that it is not only the person concerned who may benefit from an appeal power. In some cases, it is the Government who will benefit.

Other Federal Court Trial Division judges are free to come to different conclusions from Mr. Justice Noël on the issues he decided. The decision of one Federal Court Trial Division judge does not bind another Federal Court Trial Division judge. Indeed, in the case of Kisluk, Mr. Justice Lutfy did come to a different conclusion from Mr. Justice Noël in Dueck. Mr. Justice Lutfy held that there was in 1948 a legislative and regulatory basis for security screening⁴. As well, he questioned whether the legislation in place at the time fully displaced the Crown prerogative of prohibiting entry on security grounds. However, it is an unsatisfactory state of affairs for different judges to come to different conclusions on the law, with no possibility for the Federal Court of Appeal to sort out the differences.

The present system is asymmetrical. Under the present system, a person who loses at Federal Court has a second recourse at the Governor in Council. When the Government loses at Federal Court it has no recourse. The Government cannot reverse the Federal Court decision through order-in-council. Nor is there anywhere else the Government can go. A Government loss is final even though a loss of an individual is not.

This asymmetry cheats the public and the victims. It violates the principle of equality of arms. It is unfair to the community interested in protecting Canada from war criminals and criminals against humanity who lied their way into Canada.

Bill C-16 needs to allow for an appeal, with leave of the Court, from Federal Court citizenship decisions. By requiring leave of the Court before an appeal is possible, the Court can screen out frivolous appeal attempts quickly. Alleged errors of law made at the Trial Division should be subject to review by appeal courts.

Recommendation: A Federal Court Trial Division decision on revocation should be subject to appeal with leave of the Federal Court of Appeal.

Drafting suggestion: Replace section 17(3) with the clause: "A decision of the Federal Court - Trial Division made under subsection (1) is subject to appeal with leave of the Federal Court of Appeal."

III. Grounds for Revocation

A person can be denied admission to Canada on the ground that there are reasonable grounds to believe that the person is a war criminal or criminal against humanity⁵. A person who has obtained permanent residence can have that permanent residence status removed if there are reasonable grounds to believe that the person is a war criminal or criminal against humanity and the person was granted landing subsequent to the coming into force of the prohibition on admission of war criminals and criminals against humanity. The prohibition came into force in 1987. Nazi war criminals and criminals against humanity who obtained permanent residence in Canada earlier cannot be removed because they are war criminals or criminals against humanity.

It was and remains our position that this 1987 cut off is wrong in principle. Nazi war criminals and criminals against humanity should be removable from Canada on the basis that they are war criminals or criminals against humanity, no matter what their date of landing in Canada. We are pleased to see that Bill C-31 proposes a change to the immigration law to allow for removal on that basis.

There is a similar problem with the citizenship law. The Citizenship Act currently bars citizenship to those who are subject to war crimes or crimes against humanity proceedings, or persons who have been convicted under such proceedings. However it does not allow revocation of citizenship on the basis that the person was a war criminal or criminal against humanity at the time of granting of citizenship. If a person was a war criminal or criminal against humanity at the time of granting of citizenship, that citizenship can be removed only on proof that it was obtained by fraud, false representation or knowingly concealing material circumstances. Proof that the person was a war criminal or criminal against humanity at the time of the granting of citizenship is not, by itself, enough.

The law should be changed so that a person can have his/her citizenship removed where there are reasonable grounds to believe that the person committed war crimes or crimes against humanity before the person became a citizen, whether or not, on acquisition of citizenship, they were asked about commission of war crimes and crimes against humanity, and whether or not citizenship was acquired before or after the change in the law proposed here. This proposed amendment would be akin to the Holtzman amendment in the United States which makes participation in persecution a ground of deportation.

The case of Peteris Vitols shows the value of the amendment proposed. Canada did not keep its immigration records from the post war. There was systematic destruction of records. Evidence of lying on admission depends on the oral testimony of immigration officers who processed applicants immediately after World War II. Many of those officers have died or become incapacitated.

In late fall of 1941, Vitols was part of the Waffen SS and a police battalion in Latvia during World War II. He was taken prisoner of war, put in a displaced persons camp in Germany, and released. After release he moved to Germany and applied to come to Canada.

Vitols did not tell Canadian immigration authorities of his involvement with the Nazis before he came to Canada. The crucial question in denaturalization proceedings became: Was he asked? If he was asked, then he must have lied on entry.

The testimony of immigration officer Keelan was that Vitols was not asked. Keelan testified that he did not ask applicants for immigration whether they were collaborators presently residing in previously occupied territory on the ground that displaced persons could not be residing in previously occupied territory when he was interviewing them in Germany. On the basis of that evidence, Mr. Justice McKeown of the Federal Court, in September 1989, dismissed the government case against Vitols.

That testimony of Keelan was contradicted by two other officers, Cliffe and Kelly⁶. The testimony of Keelan was preferred because Keelan was the only one testifying who was in the field in 1950, the year Vitols applied to come to Canada.

The testimony of Keelan in the case of Vitols contradicted his own earlier evidence in the case of Wasily Bogutin, who was found in February 1998 by the same Federal Court judge, Mr. Justice McKeown, to have lied on entry to Canada. In the Bogutin case, Keelan testified that he understood that all collaborators with the Germans, wherever they resided, were excluded⁷. Between the Bogutin case and the Vitols case, Keelan had had a stroke. Government counsel argued that the Keelan testimony in the Vitols case should be disregarded because it was clear that Keelan was not well⁸. Mr. Justice McKeown nonetheless relied on that evidence to dismiss the case against Vitols.

Arnold Fradkin, a former member of the Justice war crimes unit, who died tragically and suddenly on January 2, 1999, wrote⁹: "Without the actual immigration forms, testimony by the security screening officers who were actively involved at the time and place where the suspected Nazi war criminal or collaborators applied to enter Canada is critical. But increasing numbers of these officers are dying or becoming too sick to testify. Without them there may not be sufficient evidence to establish the circumstantial chain of proof that the suspected person lied to immigration authorities.

At this point it time, therefore, not only are the actual immigration forms not available, but now, frequently, the specific officers who dealt with those forms and could testify about them are not available either. The denaturalization proceedings finally reinstituted in 1995 may simply have been too late."

Because of the difficulties today in proving fraud, false representation or concealing material circumstances, the Government needs an alternative means of proceeding. Proving that there are reasonable grounds to believe that a person has committed a war crime or crime against humanity will present its own difficulties. At least the Government will have a choice. It may well be that, for one accused, the proof exists of commission of a war crime or crime against humanity even if it does not exist for fraud, false representation or concealing material circumstances on entry. Proof of that participation in persecution should be enough to take away citizenship without the further need to prove fraud, false representation or concealing material circumstances on entry.

Recommendation: Citizenship should be revocable on the ground that there are reasonable grounds to believe that, before the person became a citizen, the person committed an act or omission outside Canada that constituted a war crime or a crime against humanity.

Drafting suggestion: Add section 16(1).1 which states: "The Federal Court Trial Division may make an order revoking the citizenship of a person if there are reasonable grounds to believe that, before the person became a citizen, the person committed an act or omission outside Canada that constituted a war crime or a crime against humanity."

IV. Conclusive of citizenship findings.

It should not be necessary for the Government to litigate the same issue twice, once in revocation of citizenship proceedings and a second time in deportation proceedings. A decision made by the Federal Court in revocation proceedings should be conclusive for immigration proceedings.

Jacob Luitjens lost his citizenship and was ordered deported by reason of misrepresentation of entry to Canada. At his immigration hearings, he insisted that the case made against him at citizenship proceedings be proved a second time. The end result of the immigration proceedings were obvious, given the result of the citizenship proceedings. Luitjens attempted to exploit a loophole in the system in order to string out the time he remained in Canada before the inevitable happened.

In response to the Luitjens dodge, Parliament, in 1993, changed the Immigration Act. According to the 1993 change, a removal order can be made against a person for the sole reason that the person lost citizenship on the ground that the person had earlier obtained permanent residence through fraud, false representation or concealing material circumstances. In removal proceedings, there is no need to prove a second time that permanent residence was obtained through fraud, false representation or concealing material circumstances. It is enough just to file the revocation certificate, and provided revocation itself was decided because permanent residence was obtained by fraud, false representation or concealing material circumstances, that is the end of the matter¹⁰.

The Bogutin case has shown us the need for further change in the law. Bogutin, after having his citizenship revoked, made a refugee claim. A person is ineligible to make a refugee claim if the Adjudication Division of the Immigration and Refugee Board finds that there are reasonable grounds to believe the person committed a war crime or a crime against humanity and the Minister of Citizenship and Immigration is of the opinion that it would be contrary to the public interest to have the refugee claim determined¹¹. A person is excluded from the refugee definition if there are serious reasons for considering that the person has committed a war crime, or a crime against humanity¹². Bogutin, before he died, was undergoing ineligibility proceedings.

A person who makes a refugee claim, but is rejected, can stay in Canada pending an application for leave to the Federal Court Trial Division even where the rejection is based on war crimes or crimes against humanity¹³. If the Adjudication Division of the Immigration and Refugee Board finds that there are reasonable grounds to believe a person committed a war crime or a crime against humanity, the person is ineligible to apply for the post determination refugee claimants in Canada class¹⁴. Furthermore, if a person is found ineligible to make a refugee claim, the statutory stay of execution of the removal order operates for only seven days from the date the removal order becomes effective and not for the entirety of the consideration of an application for leave to the Federal Court¹⁵.

Bogutin, by making a refugee claim, highlighted a loophole in the system that the Government attempted to close off by its 1993 amendment of the Immigration Act in response to a similar delaying tactic by Jacob Luitjens. Bogutin, by making a refugee claim, managed to get a relitigation of the issues supposedly decided in the revocation of citizenship proceedings, and which Parliament attempted to foreclose by the "Luitjens" amendment.

One advantage of adding the ground of revocation proposed here is that it would allow Parliament to close off the loophole that Bogutin has exploited. The current Immigration Act states that a person is subject to a removal order if the person "ceased to be a Canadian citizen pursuant to subsection 10(1) of the Citizenship Act in the circumstances descried in subsection 10(2) of that Act". Bill C-16 provides a consequential amendment to this provision so that it would read "loses their Canadian citizenship under section 16 of the Citizenship of Canada Act in the circumstances described in subsection 16(3) of that Act."¹⁶

In order for Parliament not be played a sucker by those whose citizenship is revoked for hiding their Nazi past, the Citizenship Act needs to amended, as argued previously, to add as a ground of revocation the very ground that is also a ground of ineligibility and exclusion in the refugee determination procedure. Furthermore, there needs to be a consequential amendment to the Immigration Act similar to the "Luitjens" amendment.

Recommendation: Provided the previous proposal is accepted to add a ground of revocation, there needs to be a consequential amendment to make a finding under that ground in citizenship proceedings conclusive for immigration proceedings.

Drafting suggestion: Section 64 of Bill C-16 should be amended to read: "loses their Canadian citizenship under section 16 of the Citizenship of Canada Act in the circumstances described in subsections 16(1).1, before the person became a permanent resident, and 16(3) of that Act."

V. Consolidation with deportation

Revocation and deportation for Nazi war criminals and criminals against humanity need to be consolidated to avoid repetitive procedures. Deportation should follow as a matter of course once citizenship is revoked.

Having two separate proceedings accomplishes nothing, but chews up time and resources. That is certainly true in a case where fraud, misrepresentation or knowingly concealing material circumstances is the only issue at both the revocation of citizenship and deportation stage. It would also be true if reasonable grounds to believe that the person committed a war crime or crime against humanity is the only issue at both stages.

The two procedures should be consolidated into one. In addition to amending Bill C-16 to give the Federal Court Trial Division power to revoke citizenship, Parliament should amend the Bill to allow a Federal Court judge to order removal of a war criminal or criminal against humanity from Canada at the time that citizenship has been revoked.

Recommendation: The Federal Court Trial Division should have the power to order deportation at the same time as it revokes citizenship.

Drafting suggestion: Add section 16(4): "The Federal Court Trial Division may make a removal order against a person at the same time as it revokes the citizenship of that person if the person was 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 or resumed citizenship."

VI. Removal

How efficient is the present system? To answer that, it is not enough to look at the steps that are required. One must also look at the steps that are allowed. The steps that are required, for revocation of citizenship, are a report from the Minister, a decision of the Federal Court Trial Division, and a decision of the Governor in Council.

Once citizenship is revoked, the Government must take three separate steps before an immigration adjudicator can order deportation. The Department of Immigration must issue first a report of violation of the Immigration Act, second a direction for inquiry to determine whether there is a violation of the Immigration Act, and third a notice of time and place of inquiry. Historically, the Department has taken all three of these steps serially, with many weeks between each step. An immigration adjudicator then issues a removal order. Once a removal order issues, the person is to be removed, as soon as reasonably practicable.

The statutory sequence is cumbersome enough. In addition, there are a number of steps which the present law does not require, but also does not forbid.

As the Minister herself has acknowledged in a letter to the Ottawa Citizen published on May 23, 2000, it is possible to make a separate Federal Court application challenging the decision of the Minister to report to the Governor in Council that citizenship was obtained by fraud or false representation or knowingly concealing material circumstances. There is indeed such a challenge under way in the case of Jacob Fast. The decision of the Federal Court Trial Division on this challenge is subject to appeal to the Federal Court of Appeal as of right, and, by leave, to the Supreme Court of Canada.

Second, as the Minister also acknowledged in her letter, it is possible to challenge in Federal Court Trial Division the Governor in Council revocation decision. That challenge too can go, as of right, to the Federal Court of Appeal, and with leave, to the Supreme Court of Canada.

Because these steps are not contemplated by legislation, they need not halt or delay the removal of the person concerned from the country, unless and until the Court rules adversely to the Government. However, the Government appears prepared to stay its own hand, though neither statutory law nor the courts have forced it to do so. In principle, the march of the persons concerned out of the country should not slow for an instant simply because these persons have engaged non-statutory procedures. Regrettably that has not happened in the Fast case, which can just as easily be called the Slow case.

Though the law does not contemplate an appeal from the decision of the Federal Court Trial Division, Katriuk tried to argue that there was such an appeal first in the Federal Court of Appeal and then in the Supreme Court of Canada in a leave application. While Katriuk was engaging these legally futile steps, the Government sat twiddling its thumbs, awaiting their outcome before it moved on with the statutory procedure.

As the Bogutin case has showed, once immigration proceedings begin a person can make a refugee claim. If found ineligible on grounds of war crimes or crimes against humanity, the person is removable seven days from the date the removal order becomes effective.

B'nai Brith proposes that all these steps would be reduced to essentially one step, at the Federal Court Trial Division. The Federal Court Trial Division would issue the removal order at the same time as the revocation decision. If the law were changed in the way we envisaged, a person would become removable seven days after the combined revocation/deportation order. There would be no statutory stay of execution of the removal order flowing from the application for leave we propose to the Federal Court of Appeal. Rather, there would only be a possibility of a judicially ordered stay, provided the person concerned could show a serious issue on appeal, irreparable harm on removal and a balance of convenience in the person's favour.

VII. Transition

The system we propose would not apply to those whose cases have already been decided by the Governor in Council. They would apply to cases decided by the Federal Court Trial Division and not the Governor in Council. If the Governor in Council has already decided to revoke the citizenship of a person and then implements the system we would recommend, that change would not apply to the person. The person would be entitled to take advantage of the procedures in one system or the other, but not both.

If the new system we propose is enacted after a Federal Court Trial Division decision adverse to the person concerned but before the Governor in Council decides on the revocation of the citizenship, the new Act should convert the old Federal Court decision into a revocation of citizenship and deportation order. There should be a possibility of leave to appeal from that decision, but the person should not be entitled to remain in Canada pending that appeal.

VIII. Conclusiveness of a Criminal Conviction

Amendments to the Criminal Code to make the remedy of prosecution against war criminals workable again have been presented to Parliament in Bill C-19. What should be done with the revocation of citizenship and deportation remedy once the criminal remedy is back in place?

It is our position that the two remedies should both take effect, that a war criminal in Canada should be both prosecuted and convicted, and denaturalized and deported. Criminal remedies do not displace civil remedies.

If Bill C-16 is amended as we propose to include reasonable grounds to believe that the person committed a war crime or crime against humanity as a ground of revocation, then revocation proceedings against a suspected war criminal or criminal against humanity should not retry the criminal case. To avoid any attempt by the person concerned to insist on that double proof, Parliament should amend Bill C-16 to allow the Federal Court to remove citizenship on the basis of a criminal conviction for war crimes or crimes against humanity committed before acquisition of citizenship, without the need to prove the offence separately in revocation proceedings.

Recommendation: The Federal Court Trial Division should have the power to revoke citizenship on filing in Court a conviction for a war crime or crime against humanity committed before the grant of citizenship.

IX. Admissibility of Evidence

In immigration proceedings, an adjudicator is not bound by any legal or technical rules of evidence and may receive and base a decision on any evidence he/she considers credible or trustworthy¹⁷. The rules of evidence in citizenship proceedings are strict.

For war crimes and crimes against humanity court actions, the criteria for admissibility of evidence should be similar whether the proceedings are citizenship or immigration, and the better criteria are those that apply now for immigration proceedings. The old War Crimes Act, which sits in the Canadian statute books, unconsolidated but unrepealed, and which was used by the Government of Canada to prosecute seven war criminals immediately after the war, has relaxed rules for the admissibility of evidence¹⁸. So did the Nuremberg Tribunal, the court that tried Eichmann in Jerusalem¹⁹, the British war crimes courts²⁰, and the American war crimes courts²¹.

Rules on admissibility such as these are essential for war crimes trials, as our own experience in trying to do without them has proven. L. C. Green has written:

"In such cases the best evidence against the accused often consists of official documents, not always signed by him, emanating from his national headquarters or other command offices. In addition, there are the statements, implicating the accused or describing events from which his offences are alleged to have arisen, made by persons who have been tried and perhaps executed in earlier trials. Apart from this type of evidence, documentary material has occasionally been found in the ruins of concentration camps and ghettos, and this, together with photographs found on German soldiers is often the only evidence of what occurred...To have insisted on verbal evidence only, would have meant that in many cases no evidence of any kind was possible... It may well be said that there is now a generally recognised principle that in such trials any evidence may be admitted that is likely to assist the court in ascertaining the truth."²²

The issue of rules of admissibility of evidence relates not only to the likely success of cases that are launched, but also to the number of cases that are initiated. There is a huge discrepancy between the number of estimated cases of Nazi war criminals in Canada and the number of cases that have been launched. This discrepancy is, in large part due, to government obstruction and lethargy over the years and decades. But it is also due to the standards of evidence which the Crown has imposed and the quality of evidence that is available. By imposing standards that very few cases can meet, it is inevitable that very few cases are launched.

Having different rules on admissibility of evidence for citizenship and immigration proceedings is problematic, particularly if our proposal for consolidation of these proceedings were to be accepted. It is our view that the rules of evidence for removal and revocation of citizenship proceedings should be the same and should be those that now prevail for immigration proceedings. Bill C-16 should be amended to say that.

X. Ministerial Annulment

Bill C-16 provides that Minister may, where the Minister is satisfied, within five years of the grant of citizenship, that a person has obtained citizenship by using a false identity, annul any decision regarding the issuance of a citizenship certificate. The process Bill C-16 proposes for annulment is administrative, rather than judicial. Now, a person can lose his/her citizenship because of fraud, false representation or knowingly concealing material circumstances only through court proceedings. The Bill proposes loss of citizenship because of use of a false identity through bureaucratic ukase.

This proposal is a transfer of jurisdiction from the courts to the government. There would be no reason for the government to ask the courts to remove citizenship for fraud, false representation or concealing material circumstances, when the government could remove citizenship on its own initiative for use of a false identity.

The procedure proposed in the Bill provides a lesser degree of procedural protection to the person concerned than a Federal Court revocation proceeding. It is also more time consuming. While the initial Ministerial decision may be quick, it can be followed by an application for judicial review to the Federal Court Trial Division as a right, an appeal to the Federal Court of Appeal as a right, and an application for leave to appeal to the Supreme Court. These three additional procedures may take years.

The provision about annulment of citizenship obtained by use of a false identity decreases both fairness and efficiency in revocation proceedings. It should not be in the Bill.

To recapitulate, we recommend:

1. War criminals and criminals against humanity should lose their citizenship as soon as they lose their court cases. Bill C-16 should be amended to give the Federal Court Trial Division power to revoke citizenship.

2. Bill C-16 should be amended to allow a Federal Court judge to order removal of a war criminal or criminal against humanity from Canada at the time that citizenship has been revoked.

3. Bill C-16 should be changed to allow for removal of citizenship on the basis that there are reasonable grounds to believe that the person is a war criminal or criminal against humanity prior to the granting of citizenship, without the need to prove fraud, false representation or knowingly concealing material circumstances in addition.

4. Bill C-16 should be changed to allow citizenship to be removed on the basis of a criminal conviction for war crimes or crimes against humanity committed before citizenship was granted, without the need to prove the offence separately in revocation proceedings.

7. Bill C-16 needs to allow for an appeal with leave of the Court from Federal Court Trial Division revocation decisions.

6. The Citizenship Act should be amended to allow a Federal Court judge in war criminal or criminal against humanity proceedings to receive and base a decision on any evidence he/she considers credible or trustworthy and necessary for the decision in the case, without regard to technical rules of evidence.

8. The provision in Bill 16 that allows the Minister to annul citizenship obtained by use of a false identity should be deleted.

David Matas is a Winnipeg lawyer. He is Senior Honourary Counsel to B'nai Brith Canada.

1. M.C.I. v. Dueck, T-938-95, December 21, 1998.

2. _ Paragraph 135.

3. _ Paragraph 303.

4. _ M.C.I. v. Kisluk (1999) 50 Imm. L.R.(2d) 1 (T.D.)

5. _ Immigration Act section 19(1)(j).

6. _ Paragraph 156.

7. _ M.C.I. v. Bogutin, T-1700-96, February 20, 1998, paragraph 91.

8. _ Paragraph 159.

9. _ Canadian Jewish News, January 14, 1999.

10. _ Section 27(2)(i).

11. _ Immigration Act sections 46.01(1)(e)(ii) and 19(1)(j).

12. United Nations Convention Relating to the Status of Refugees Article 1F(a); Immigration Act Schedule.

13. _ Immigration Act section 49(1)(c)(i).

14. _ Regulation 2() "member of the post determination refugee claimants in Canada class" (a)(vi).

15. _ Section 49(1)(e).

16. _ Section 64.

17. _ Immigration Act section 80.1(5).

18. _ War Crimes Act, 1946 Statutes of Canada, Chapter 73, Regulations 10(1) to (6)

19. _ See L.C. Green "Legal Issues of the Eichmann Trial" (1962-3) 37 Tulane Law Review 641 at 657

20. _ Army Orders 81/1945, June 18, 1945, Regulations for the Trial of War Criminals, section 8

21. _ Re: Yamashita 327 U.S. 1 (1945) at page 18

22. _ 37 Tulane Law Review 641 at 657-658