EDITORIAL: "Balance of probabilities" vs. due process (07/21/02)

EDITORIAL

"Balance of probabilities" vs. due process

While Ukrainians in the United States have watched the Demjanjuk case unfold over the years, indeed for decades (see story on page 3 for the latest developments), Ukrainians in Canada are closely watching the case of Wasyl Odynsky, a displaced person who arrived in Canada in 1949.

Back in March 2001, Justice W. Andrew MacKay of the Federal Court of Canada found that Mr. Odynsky was innocent of any war crimes. However, he did find him guilty of probably not truthfully answering questions asked by Canada's immigration authorities when he entered the country 53 years ago. In his decision 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." As a result, right now Mr. Odynsky is awaiting a decision of the federal Cabinet on whether he should be deported from Canada. Deported - not for war crimes - but for probably lying.

In a commentary titled "Who needs evidence?" in Report Newsmagazine on July 8, Kevin Michael Grace gets to the heart of the matter, describing the government's argument: "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)." For the record, Mr. Odynsky said under oath that he was not asked what he did in the war.

According to Lubomyr Luciuk of the Ukrainian Canadian Civil Liberties Association, "No specific documentary evidence refutes his testimony. Ottawa destroyed those files years ago. But, on 'a balance of probabilities,' the judge ruled Mr. Odynsky secured citizenship under false pretenses."

How could such a situation come to pass?

Well, to make a long story short, after the Deschenes Commission looked into reports that Canada was harboring Nazi war criminals - finding that claims from certain quarters that Canada was crawling with these types just did not hold water, but conceding the possibility that there could be some criminals in the country - legislation was enacted that permitted Canada to prosecute persons on charges of war crimes committed elsewhere. Since that strategy did not work - the only suspected war criminal to have been prosecuted was acquitted - officials then opted for the highly flawed made-in-the-U.S.A. approach: denaturalizing and deporting those who had lied when they entered the country. The D&D method made it much easier for prosecutors to win cases, since criminal standards do not apply in these civil cases.

Which brings us back to the Odynsky case that began in 1997 when the Ukrainian immigrant was first accused of hiding a Nazi past. In a June 14 column titled "This is justice?" Peter Worthington of the Toronto Sun wrote: "The case against Odynsky - conscripted by the Nazis at age 19 on pain of death and/or reprisals to his family - is so tenuous, vindictive and unjust it should be dismissed out of hand. ... By any objective standard, Odynsky was more a victim of Nazism than a perpetrator ... Odynsky, 19, with a Grade 5 education, was conscripted into an SS auxiliary unit as a perimeter guard at a concentration camp. He ran away to avoid conscription, but returned when the Nazis threatened his family."

So, this is a war criminal?

The only just decision at this point in this case would be for the Cabinet of Canada to allow Mr. Odynsky to remain in that country. But justice would be best served if Canada went back to the drawing board, trashed the new Citizenship Act that permits naturalized citizens to be deported without appeal (in effect creating a lower class of citizens) and reverted to the made-in-Canada solution to war crimes: i.e., prosecuting suspected war criminals for war crimes - not some lesser violation - in accordance with Canadian criminal law and the concomitant higher standards of evidence.

Due process cannot be sacrificed.

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