Canada ( Minister of Citizenship and Immigration ) v. Kisluk
T-300-97
Lutfy J.
7/6/99
95 pp.
Application to revoke respondent's citizenship on ground admitted to Canada for permanent residence, obtained Canadian citizenship by false representations, fraud or by knowingly concealing material circumstances, in particular failing to divulge to Canadian immigration, citizenship officials collaboration with, service to German authorities in Ukraine during 1941 to 1943, as member of Ukrainian auxiliary police; participation, as member of German armed forces, Ukrainian auxiliary police in commission of crimes, atrocities against civilians-Respondent obtained Canadian immigration visa in December 1948; landed in Canada in January 1949, obtained Canadian citizenship in 1954-Respondent arguing in December 1948 no legal authority to prohibit entry of potential immigrants, including collaborators, to Canada, because undesirables or represented security risks, when had otherwise complied with Immigration Act, regulations-Implicit assumption Immigration Act, ss. 3, 38 displaced Crown prerogative relating to exclusion of aliens on grounds of national security-Applicant arguing such prerogative arising implicitly from Crown prerogative concerning international affairs, national defence-Arguable Canadian government fulfilled duty to ensure national security through exercise of Crown prerogative, at least prior to 1960 when "such security and intelligence services as may be required by the Minister" first enacted as among duties of RCMP-Respondent arguing even if had disclosed wartime activities as railway guard, member of auxiliary police force under Schutzmannschaften, no legal authority to prohibit entry into Canada if otherwise met legislative requirements-Applicant responding (i) regulations passed under Immigration Act provided immigration officers with legal authority to prohibit person's landing in Canada, or (ii) such authority could be founded upon doctrine of Crown prerogative-As to (ii), Crown prerogative defined as residue of discretionary or arbitrary authority which at any given time legally left in hands of Crown-Prerogative may be displaced by statutory enactment, but when effect of related legislation only incidental, Crown prerogative may subsist-Interpretation Act, s. 17 providing no enactment binding on Crown or affecting Crown's prerogatives except as mentioned or referred to in enactment-"Mentioned or referred to" broadly interpreted to encompass expressly binding words, clear intention to bind, intention to bind where purpose of statute would be "wholly frustrated" if government not bound-Therefore issue whether Immigration Act, as existed in 1948, provided comprehensive legislative scheme controlling admittance, removal of aliens thereby displacing Crown prerogative-As neither s. 3 nor s. 38 clear statement expressly binding Crown, displacement of Crown prerogative to exclude prospective immigrants on security grounds must arise by necessary implication from wording of legislation-Total displacement of Crown prerogative, even by implication uncertain at best-Legislative history of Immigration Act in context of Canada's contemporary concern with issues of national security considered-When ss. 3, 38 first enacted in 1910, amended in 1919, unlikely Parliament considered type of security concerns arising in late 1940s when identified prohibited classes of immigrants, more particularly "conditions or requirements" for suitable, desirable immigrants-"Other conditions or requirements of Canada" in s. 38(c) part of larger phrase "deemed unsuitable having regard to" socio-economic factors primarily concerned with suitability of prospective immigrants and not apparently related to issues concerning national security-In 1948 legislation not creating right to enter Canada for persons in Europe-Prospective immigrants situated overseas not entitled to enter, land in Canada, even when entry not prohibited by s. 3 and where otherwise complying with Act-Even if not member of prohibited class, no right of entry existed-Immigrant's entitlement to be granted landing first introduced in 1976-Thus questionable whether legislation fully displaced Crown prerogative in relation to exclusion of aliens on grounds of national security, but unnecessary to decide whether legal authority to prohibit entry on security grounds rested solely on doctrine of Crown prerogative in view of conclusions concerning effect of orders in council in force in 1948-In 1931 Governor in Council prohibited landing of all immigrants of any class or occupation, subject to four exceptions-Use of permissive language granted immigration officer discretion to admit persons who came within permitted categories of immigrants, discretion to prohibit entry of immigrants-Membership in excepted class not creating right to land in Canada-Neither Act, s. 3 nor order in council creating such right-In July 1950 P.C. 2856 coming into force-Requiring person to satisfy Minister suitable immigrant having regard to climatic, social, educational, industrial, labour, or other conditions or requirements of Canada-Respondent arguing prior thereto, no legal authority to prohibit entry of prospective immigrants into Canada on grounds of national security-Submitting "other conditions or requirements" forming basis for earliest legal authority to bar entry of collaborators-No direct evidence P.C. 2856 passed to address legal authority concerns discussed by officials in 1949-Legal authority to prohibit entry of undesirable persons or security risks created in discretion given to immigration officers to permit landing in Canada, not by words "other conditions or requirements" in P.C. 2856-Orders in council P.C. 695, P.C. 4849, P.C. 2743, P.C. 2856 establishing blanket prohibition against landing of immigrants of all classes, occupations, afforded immigration officer discretion to allow landing of specified classes-Prospective immigrants found to be German collaborators or otherwise posing risk to national security could be prohibited from landing in Canada-Such view supported by second series of orders in council introducing requirement passports of certain aliens carry visa of Canadian immigration officer-More persuasive of existence of legal authority to prohibit entry of prospective immigrants on grounds of national security-On basis of orders in council P.C. 4849 and 4851, in December 1948 immigration officers had legal authority to prohibit entry, landing into Canada of immigrants on grounds either undesirables or security risks-Outcome consistent with prohibition against entry of persons not fulfilling, meeting, complying with conditions, requirements of any regulations found in s. 3(i)-After Soviet occupation of Ukraine, respondent's family relocated to Poland where respondent serving as railway guard, armed and in German uniform through 1940, beginning of 1941-Moved back to Ukraine where recruited as police officer from late 1941 through 1943-No serious evidence respondent coerced into service either as railway guard or as police officer-Acknowledged worked as railway guard, as part of German police because had to work somewhere, had no other option-Paid and fed-Could have worked on family farm when recruited to work as police officer-Again paid, housed, fed-Respondent voluntarily assisted German forces-Involved in escorting Jewish domestic worker for police to her execution-Role as police officer not limited to investigating petty thefts, domestic abuse-Member of auxiliary police force organized by Germans, known as Schutzmannschaften-Through activities as railway guard, auxiliary police officer, respondent collaborated with Germans between 1940, 1943-Schutzmannschaften auxiliary police force in rural villages under umbrella of Schutz Staflel or S.S. -In December 1948, when respondent obtained Canadian immigration visa, visa applicants should not have been met by medical, immigration officers without first having been interviewed by security officer-As respondent met by medical, immigration officer, on balance of probabilities, also met by security officer-On balance of probabilities respondent questioned about employment history during World War II-Knowingly concealed role in assisting Germans as railway guard, auxiliary police officer-Response during 1953 RCMP interview for citizenship that entered Germany as forced labour concealed material facts-Based on findings concerning involvement in 1941 to 1943 incidents, sworn statement in 1954 petition of citizenship that person of good character false-Respondent admitted to Canada for permanent residence, obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances-Immigration Act, R.S.C. 1927, c. 93, ss. 3, 38-Interpretation Act, R.S.C., 1985, c. I-21, s. 17-Immigration Act-Order re landing of immigrants in Canada, SOR/50-232 (P.C. 1950-2856)-Immigration Act-Regulations re landing of immigrants in Canada, SOR/49-227 (P.C. 19492743)-Immigration Act-Regulation respecting the production of passports by immigrants to Canada, SOR/47-922 (P.C. 19474851)-Immigration Act-prohibiting the landing in Canada of immigrants with certain exceptions, SOR/47-920 (P.C. 19474849).