Ukraine's vice-consul ejected from Canada (01/12/97)

Ukraine's vice-consul ejected from Canada

by Andrij Kudla Wynnyckyj
Toronto Press Bureau

TORONTO - Declared persona non grata together with his wife by Canada's Ministry of Foreign Affairs and International Trade, Ukraine's vice-consul in Toronto, Oleksander Yushko, boarded an afternoon KLM flight to Kyiv on December 24, 1996.

The Canadian Foreign Affairs Ministry issued the declaration on December 23, stipulating that the pair was to leave Canada by midnight of Christmas Day.

This marked the climax of a bizarre two-month series of events during which the Canadian government and various agencies alternately did, and did not, recognize the Ukrainian official's claim of diplomatic immunity. Ukraine's diplomatic corps steadfastly insisted that no matter how damning the circumstances, any arrest of an official of theirs was illegal.

Immediately prior to the December 19 Ontario Provincial Court hearing into the matter, the Ukrainian Consulate General's legal affairs officer, Anatoliy Alekseyenko, told The Weekly that the 32-year-old Mr. Yushko arrived in Toronto on October 17, 1996, carrying a Ukrainian diplomatic passport stamped with a Canadian diplomatic visa. Mr. Alekseyenko said Mr. Yushko sent his documents to Ottawa to further formalize his registration as a representative of the Ukrainian government, because he hadn't passed through the Canadian capital upon arriving in the country.

Nine days later, with the paperwork still not complete, Mr. Yushko was in hot water. On a Saturday night, he was charged with drunk driving, possession of stolen property, bribing a police officer, and accused of trying to lure two teenage girls into his car and of intending to administer a noxious substance, since he had a handkerchief soaked with xylene (an anesthetic solvent) in his possession.

According to depositions made by the prosecutor in the case, Crown Attorney Sarah Welch, Mr. Yushko lacked any identification attesting to his status at the time of his arrest, and did not identify himself as a consular official until after offering a bribe to the arresting officer, Const. Charlie Kozdas of the Metropolitan Toronto Police.

Mr. Alekseyenko told The Weekly that Mr. Yushko did not have his documents because they were still in Ottawa being processed.

According to court transcripts, Ms. Welch alleged that Mr. Yushko had failed a roadside alcohol blood-level test and then attempted to bribe the officer who administered it to him. Mr. Yushko was then handcuffed, the car he was driving was searched, and he was taken to Toronto's 14th Division Metro Police station house and detained overnight.

Released on October 27 when Mr. Alekseyenko posted a $10,000 surety (accepted in lieu of cash), Mr. Yushko was instructed to appear in court on October 29, and to surrender his passport. However, the vice consul did neither. In fact, he failed to appear at seven subsequent hearings prior to the expulsion order of December 23.

In the meantime, conflicting pressure on the Canadian Ministry of Foreign Affairs from Prosecutor Welch seeking to try Mr. Yushko on the one hand, and from Ukraine's diplomatic missions and its lawyers on the other, produced contradictory positions on whether Mr. Yushko actually had diplomatic immunity at the time of his arrest.

In letters to Ms. Welch of October 29 and November 1, the Ministry of Foreign Affairs and International Trade's Deputy Chief of Protocol W.R. Bowden stated that Mr. Yushko "does not have immunity from criminal jurisdiction" because he was not a full-fledged diplomat.

After the vice-consul missed another hearing on October 31, Ms. Welch began pressing for the execution of a discretionary bench warrant for his arrest, contending that the matter of his immunity from prosecution was for the courts, and not for Mr. Yushko, to decide.

The Ukrainian Consulate General retained Greg Hood, Todd Archibald and Lubomir Kozak of the Toronto law firm Borden & Elliott to press their case that Mr. Yushko was performing consular duties at the time of his arrest, and that the arrest and search of his car, therefore, were illegal because they were not performed under a specially issued warrant as demanded by the Vienna Convention.

Their petitions and diplomatic pressure from the Ukrainian Embassy in Ottawa resulted in a November 8 letter to Ms. Welch, in which R.J. Rochon, director general of the Canadian Foreign Affairs Ministry's Bureau of Legal Affairs, agreed with their position and indicated that his ministry "wishes to withdraw" the previous two items of correspondence in the matter. Mr. Rochon went on to certify Mr. Yushko as a consular officer was "entitled to the privileges and immunities afforded" to such officials.

Ms. Welch pressed on, however, attracting media attention to the case. On December 5, the Toronto Sun daily ran Christie Blatchford's column titled "Feds change tune on envoy immunity," followed by another on December 13, titled "Ukrainian thumbs nose at our laws."

In the latter piece, Ms. Blatchford revealed that Mr. Yushko is the son of a former KGB colonel who was stationed at Soviet Consulates in Toronto and Montreal in the 1950s and 1960s before returning to Kyiv to serve in a "senior operations position."

These press reports irked Ukrainian officialdom, and echoes were heard in Kyiv, where the Russian-language Vseukrainskie Vedomosti carried a report in mid-December by Elena Nesterenko, which accused the Canadian media of covering up police misdeeds and violations of international law.

Ms. Welch's tenacity in pursuing Mr. Yushko produced a surprising result. At the December 19 hearing, the prosecutor announced that Canada's Ministry of Foreign Affairs in Ottawa and its Embassy in Kyiv had just been informed that Ukraine was appointing Mr. Yushko's wife, Maria, as a diplomatic attaché in Canada. As part of her household, the vice-consul was thus afforded full diplomatic immunity, which included immunity from arrest on the warrant that Ms. Welch was seeking to have executed.

Ms. Welch expressed concern that "the appointment of Mrs. Yushko on the very morning that the [prosecution] was to pursue [Mr. Yushko's] appearance [before the court] has been done to circumvent the criminal charges before the court."

The prosecutor told the presiding judge, Justice Bruce Young, that she would formally request that the Ukrainian government waive Mr. Yushko's immunity in this matter, and asked for a continuance of the warrant until another hearing, set for January 8.

The December 19 hearing was also followed by a lively press scrum in the hallways of the Old City Hall courthouse involving Mr. Kozak, one of Mr. Yushko's lawyers, who continued to insist that the hapless Ukrainian's arrest, the search of his car, and his overnight detention were all illegal.

"The law does not apply to diplomats in the same fashion that it does to Canadians," Mr. Kozak asserted. "The officers in question were obliged to obtain a special warrant before they could proceed in this instance," he said.

After shunning a number of opportunities and requests for comment, the consul general in Toronto, Serhiy Borovyk, issued a defiant declaration that appeared on the front page of the December 18-24 edition of the Toronto-based Ukrainian-language weekly Ukraina i Svit.

In his statement, Mr. Borovyk claimed that on the night in question, Mr. Yushko had lost his way back to the hotel where he was staying with his wife, and had stopped to ask for directions. He further noted that "the arrest, interrogation of O. Yushko, the search of a diplomatic vehicle, the application of handcuffs and his detention under guard are all serious violations of legal norms, which are particularly surprising and disturbing to me."

Mr. Borovyk asserted that neither the Consulate General in Toronto nor the Embassy in Ottawa were officially informed of the incident for several days.

While "not wishing to deal with the details of the accusations," the consul general also expressed "shock" at the level of bias demonstrated in the media's coverage of the matter, decrying Ms. Blatchford's comparison of Mr. Yushko to convicted rapist and murderer Paul Bernardo (in her December 5 article). In turn, the diplomat compared such coverage to the libels committed by the former Soviet Communist Party organ Pravda.

Mr. Borovyk concluded with the expectation that "in this matter, the generally accepted norms of international law and domestic Canadian legislation will prevail over the dubious search for artificially created sensation based on unsubstantiated accusations."

However, on December 23, it appeared that Ms. Welch had gained the upper hand. The Canadian government declared both Mr. and Mrs. Yushko "personae non-gratae" and stipulated they had to leave by midnight, December 25.

In a statement carried by the Canadian Press (CP) on December 24, Ministry of Foreign Affairs spokesman Sanjeev Chowdhury said this decision was made after "it became clear the Ukrainian government would not consider waiving Mr. Yushko's diplomatic immunity."

Mr. Chowdhury said that "charges against Mr. Yushko have been held in abeyance. Should he ever return to Canada, he will be subject to prosecution on those charges." In an apparent return to a position held earlier, Canadian officials were quoted by CP to the effect that Mr. Yushko "did not have absolute immunity" because he was employed at a Consulate, not an Embassy, at the time the crimes were allegedly committed.

The announcement prompted a "Christmas Heave-Ho for Ukrainian Envoy" banner headline on the front page of the Toronto Sun tabloid on December 24. Sun reporter Scott Magnish elicited a riposte from Ukrainian Embassy Press Secretary Yevhen Polishchuk, who said the Toronto Consulate General would continue to pursue the quashing of charges against Mr. Yushko in the new year.

Mr. Polishchuk conceded that the former vice-consul "won't be coming back to Canada to work" but he that would be eligible for another foreign posting if the charges in Canada are dismissed.

In Kyiv, according to a Reuters report, Yurii Serheyev, a Ukrainian Ministry of Foreign Affairs spokesman, held a press conference on December 26 at which he confirmed Mr. Yushko's return. Mr. Serhieyev reiterated his government's contention that the vice-consul's arrest had been illegal and expressed the hope that the incident would not adversely affect relations between Ukraine and Canada.

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Endnote: The official World Wide Web site of the Embassy of Ukraine in Canada includes a rubric titled "Spirit use," which targets potential visitors to Ukraine. "Please note Ukraine is a Zero Tolerance country with regards to alcohol misuse," it reads, "fines are substantial and your driver's license may be removed. Do not drink and drive. Take a cab."

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