Judgments

     T-938-95

The Minister of Citizenship and Immigration (Applicant)

v.

Johann Dueck (Respondent)

Indexed as: Canada (Minister of Citizenship and Immigration)v. Dueck (T.D.)

Trial Division, Noël J."Selidovo, Ukraine, May 25, 26, 27, 28, 29, June 1, 2; Ottawa, October 6, 7, 8, 13, 14, 15, 16, 19, 21, 22, 23, 26, 27, 28, 29, 30, November 3, 4, 9; Toronto, November 10; Winnipeg, November 12; Ottawa, November 17, 25, 26, 27 and December 21, 1998.

Constitutional law — Responsible government — Law and convention — The executive branch — Cabinet and Privy Council — In 1946, Cabinet deciding to deal with security screening of immigrants otherwise than by legislation — Security process not to be made public — Dealt with by departmental administrative action — RCMP given duty of conducting screening process abroad — Applicable security criteria provided in verbal instructions given by headquarters — No appeal from rejection as such considered impracticable — Grounds for rejection reported only to superior officers — Fear of communist infiltration at heart of preoccupation with secrecy — Although Secretary to Cabinet specifically asked by Prime Minister whether any authority for rejecting immigrants on security grounds, he advised only that matter dealt with by —administrative means— — Cabinet decisions of 1946, 1947 set government policy — But Cabinet decisions must be made legally effective by statute or through Governor in Council's legal authorities — As of July 1948 such had not taken place — Contemporary Cabinet papers reveal existing Order in Council neither intended nor considered as authority for security screening — No legal authority in July 1948 to reject immigrant as enemy collaborator.

Crown — Prerogatives — Reference seeking declaration respondent obtained citizenship by false representation, fraud, knowingly concealing material circumstances — Respondent, a displaced person (DP) from Austria, admitted to Canada in 1948, becoming Canadian citizen in 1957 — Applicant seeking to revoke citizenship based on undisclosed collaborationist activities during World War II — Applicant submitting if no authority in Immigration Act for rejection of prospective immigrants on security grounds, process supported by Crown prerogative — Prerogatives collection of powers, duties exercised, assumed by Crown under common law — Once statute occupies ground formerly occupied by prerogative, Crown must comply with terms of statute — Immigration Act covering whole of prerogative applicant claiming as authority for rejection of potential immigrants on security grounds — Once decided complied with Act, met conditions of applicable orders in council, respondent entitled to enter Canada.

Citizenship and Immigration — Status in Canada — Citizens — Revocation of citizenship — Reference seeking declaration respondent obtained citizenship by false representation, fraud, knowingly concealing material circumstances — In 1948 respondent's uncle in Saskatchewan applied for admission of respondent, then DP living in Austria, by completing Form 55 sponsorship application — Form not requiring information on wartime activities — Respondent's travel document bearing medical, visa stamps, but not security officer's stamp — Court finding respondent acting as translator for auxiliary police in German occupied Ukraine during World War II — Respondent becoming Canadian citizen in 1957 — Applicant not demonstrating respondent admitted to Canada by failing to disclose collaborationist past — (1) Not establishing consistent process applied to all immigrants from Austria in July 1948, that process, if applicable, would have elicited answers about respondent's wartime activities, or that collaborators —generally— prohibited from entering Canada — To demonstrate respondent personally interviewed, necessary to establish respondent admitted under special employment category — Applicant admitting respondent probably admitted as agriculturalist — In 1948 some immigration officers of view agriculturalists not to be security screened —(2) Unlikely security criteria applicable in July 1948 would have resulted in respondent being prohibited from entering Canada — Screening criteria applied in July 1948 imprecise — Evidence suggesting application of prohibition relating to collaborators directed to specific instances of collaboration — No blanket prohibition for collaborators — (3) In July 1948 security officers not having legal authority to reject respondent on ground collaborated with enemy during World War II — Cabinet considered security of uppermost concern, but decided to deal with security screening by administrative, rather than legislative means — Immigration Act, s. 38 providing required authority for doing so, subject to passage of appropriate order — Order in council, amendments permitting admission of DPs, not legal authority for rejection of immigrants on security grounds.

Evidence — Reference seeking declaration respondent obtained citizenship by false representation, fraud, knowingly concealing material circumstances — Respondent, DP from Austria, admitted to Canada in 1948, becoming Canadian citizen in 1957 — Applicant seeking to revoke citizenship based on undisclosed collaborationist activities during World War II — Reliance can be placed on subsequent documents to attest to prior state of affairs when situation shown to have been relatively constant — Inappropriate to do so when situation in state of flux, rapid evolution, as was state of affairs with respect to security screening in 1948 when immigration from continental Europe increased dramatically, RCMP struggling to comply with Cabinet direction to maintain security screening without impeding flow of immigrants.

This was a reference to the Court seeking a declaration that the respondent had obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances.

The respondent was a displaced person (DP) in Austria in 1948 when he applied to come to Canada. His uncle in Saskatchewan had applied for the admission to Canada of the respondent, his wife and two children by completing a Form 55 sponsorship application. That form did not require information in respect of military service or wartime activities of the potential immigrant. With respect to occupation, it requested only information with respect to present occupation and intended occupation in Canada. The respondent's travel document bore medical and visa stamps, indicating that he had passed the Canadian medical and immigration screening on July 20, 1948, but there was no security officer's stamp. The respondent became a Canadian citizen in 1957.

According to the applicant, the immigration process in July 1948 consisted of three stages: security screening, medical examination, and vetting by an immigration officer. The applicant alleged that there were established guidelines for the rejection of individuals on security grounds which were disseminated to officers operating in the field. Allegedly in July 1948, persons from German occupied countries known to have collaborated with the Nazis were generally prohibited from entering Canada. The applicant was found to have acted as a translator for the auxiliary police, in German occupied Selidovo, Ukraine between 1941 and 1943.

After World War II, Cabinet decided to relax its immigration policy, but to maintain the prohibition on the entry of enemy aliens. The evidence disclosed that (1) throughout 1945-1950, Cabinet was of the view that the security screening of potential immigrants should be maintained; (2) Cabinet ultimately decided that the development of a security screening system for immigrants properly belonged to the RCMP, rather than to the minister responsible for immigration; and (3) it was incumbent upon the RCMP to develop and implement the security screening system in such a way as to interfere as little as possible with the flow of immigrants to Canada. Cabinet considered security matters of the uppermost concern, but did not want the security process to be made public. On August 5, 1946 Cabinet decided to deal with security screening by "other means" (i.e. departmental administrative action) than regulation. Pursuant to the recommendation of an interdepartmental advisory committee that immigration teams be dispatched to examine applicants in their country of origin, Staff Sergeant Hinton, an RCMP officer, was sent to London in October 1946 to carry out a paper investigation of potential immigrants. He was directed to abide by verbal instructions from headquarters as to security criteria, and to "do the best he could" with the information available to him to eliminate the backlog of applications. The objective was "to slowly tighten control and to concentrate on the rejection of people who are really undesirable" and "not worry if a percentage of undesirables slip by". On January 30, 1947, an order in council was passed widening the classes of near relatives, agriculturalists, and persons for employment in primary industries. On February 5, 1947 Cabinet decided to authorize a selective system of security screening, but still the implementation of screening criteria was left to the discretion of the RCMP.

In mid-1948, Major Wright, who oversaw the security screening operation in Europe, prepared a list of the grounds on which applicants were then being rejected. Major Wright's list, gathered from inquiries in the field, was submitted in August 1948. Although there was no blanket prohibition for collaborators, there were specific instances of collaboration that gave rise to prohibitions eg. paragraph (b): "Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (non-German)" and paragraph (c): members of the Nazi party. In so far as the prohibitions relating to collaborators were concerned, headquarters did not touch the list except to add in November 1948 "collaborators presently residing in previously occupied territory."

The issues were: (1) was the respondent subject to security screening when he applied to immigrate to Canada in July, 1948; (2) what were the applicable security screening criteria in July of 1948; and (3) was there legal authority for security screening of immigrants in July 1948?

Held, the respondent did not obtain Canadian citizenship by false representation, fraud or by knowingly concealing material circumstances.

(1) The applicant did not demonstrate that the respondent gained entry into Canada by failing to disclose his collaborationist past. The applicant did not establish that there was a consistent process applied to all immigrants from Austria in July, 1948; that the process, if applicable, would have elicited answers about the respondent's wartime activities; or that collaborators "generally" were prohibited from entering Canada.

It was questionable whether the RCMP had sufficient resources to fully implement the decision to security screen all DPs. Given the known influx of immigrants to Canada from Europe in 1948 and the pressures placed on the RCMP not to impede the flow of immigrants, it is likely that the rigorous security procedure in place was not always followed.

The respondent submitted that he was admitted to Canada as an "agriculturalist" and that agriculturalists were not subject to personal interviews. The applicant admitted that the respondent was probably admitted pursuant to P.C. 1947-4849, paragraph 4(b ), which provided for the admission of an agriculturalist entering Canada to farm with the assistance of an uncle who was engaged in agriculture. There was evidence from the field that in 1948 some immigration officers considered that agriculturalists generally were not to be security screened by personal interview. Had an officer with this view screened the respondent, he would have been subject only to a paper screening. To demonstrate that it was likely the respondent was personally interviewed, it was incumbent upon the applicant to demonstrate that the respondent would have been categorized by the officer reviewing his file as falling into the category of "Displaced persons " Brought in under special employment categories", rather than that of "Agriculturalists " Selected by Railway Colonization officials". The applicant had not met that burden.

As to whether forms other than Form 55 were being used in July 1948, there was an instruction from the Director of Immigration that the only necessary form was a Form 55. The applicant admitted that until 1953 immigration application forms did not request particulars regarding wartime military service. The forms produced from the 1940s did not require the potential immigrant to provide any information in respect of military service, wartime activities, or occupation for the previous 10 years. At most, some of these forms required a summary of the prospective immigrant's previous employment. The evidence did not establish the type of uniform practice which would allow a conclusion that the respondent was required to complete a Canadian form detailing his occupation over the prior 10 years or that he would have completed an International Refugee Organization form which would have been relied upon by the security officer reviewing his application.

(2) Even if the respondent had completed forms reflecting his past employment and had been personally interviewed, it is unlikely that the security criteria applicable in July 1948 would have resulted in the respondent being prohibited from entering Canada.

While, as a matter of methodology, reliance can be placed on subsequent documents to attest to a prior state of affairs when the situation can be shown to have remained relatively constant, it is entirely inappropriate to do so when the situation is in a state of flux and rapid evolution. That was the state of affairs with respect to security screening in 1948 when the annual flow of immigrants from continental Europe surged from 15,590 to 71,976 and the RCMP was struggling to comply with Cabinet's direction to maintain security screening without impeding the flow of immigrants.

The fact that Major Wright was asked to prepare a list of the screening criteria in use at that time demonstrated that the RCMP could not identify with precision the screening criteria then being applied by its staff in July 1948. The applicant alleged that at the time Major Wright's list was compiled, collaboration was a blanket prohibition. In February 1947 fear of Soviet infiltration was the primary concern of those who saw the need to preserve the security screening system. This concern increased dramatically as the Cold War heightened. The Soviets were known to use blackmail to enlist agents and those who resided in previously occupied territory were particularly vulnerable. Thus "collaborators presently residing in previously occupied territory" has a rational meaning that is understandable in the context of 1948. This prohibition was a focussed criterion directed primarily towards warding off Soviet infiltration. These words were time- and site-sensitive, with the result that they lost their meaning over the years.

The manner in which Major Wright's list was received by headquarters did not support the suggestion that it was glaringly deficient. That list strongly suggested that in July 1948, the application of the prohibition relating to collaborators was directed to those who had collaborated in the manner contemplated by paragraphs (b) and (c). As of November 1948, i.e. after the respondent was screened, particular attention was paid to collaborators presently residing in previously occupied territory, as the addition to Major Wright's list suggested. This was a new criterion, and not a reflection of a ground for rejection which was being applied in July 1948.

These narrow exclusions of collaborators were not surprising, given the pressure on the RCMP not to impede the flow of immigrants. "Collaboration" was a notion that was undefined in 1948. It was unlikely that had a blanket prohibition against immigration by collaborators been applied in 1948, 70,000 immigrants would have sailed to Canada from continental Europe in that year.

While there was an absolute prohibition barring the entry of communists throughout the relevant period, this was not shown to be the case with respect to the class of undesirables described as collaborators in 1948. It was likely that in July 1948, collaborators were excluded only to the extent reported by Major Wright.

(3) Regardless of the above conclusions, in July 1948 security officers did not have legal authority to reject the respondent on the ground that he had collaborated with the enemy during World War II.

While security officers were rejecting prospective immigrants for security reasons on the basis of verbal instructions, immigration officers were acting on the basis of the Immigration Act, which continued to reflect specific grounds for rejection. Conflicts developed within the teams operating in Europe with respect to jurisdiction. As a result, a memorandum of understanding between the Minister responsible for immigration and the RCMP was entered into, providing that the RCMP were solely responsible for rejecting applicants on security grounds, and that they would simply mark applications in the "agreed manner" to indicate disposition. This anticipated Major Wright's list of security criteria. As of July 1948, security officers answered only to the RCMP, the right of appeal was being denied as impracticable and the modus operandi was such that there was no means of communicating to anyone, including the Minister responsible for immigration, the grounds for which prospective immigrants were being rejected on security grounds. Although the Immigration Act provided for an appeal, granting this right with respect to rejections on security grounds would have jeopardized the secrecy of the program. The need for secrecy explained why the policy for the rejection of prospective immigrants on security grounds was developed on a separate track and more importantly, why the authority for this process was not found in legislation, but through "other means".

The applicant contended that Order in Council P.C. 1947-2180, which allowed admission of DPs, was legal authority for the rejection of immigrants on security grounds. P.C. 1947-2180 did not provide authority under which security screening was being conducted in July 1948. (i) Security screening was a measure of general application which was not restricted to immigrants coming in under P.C. 1947-2180. (ii) When the Governor in Council desired to exclude a specific class of undesirables in 1948, it did so in express and unambiguous terms, as for example in Order in Council P.C. 1950-4840, prohibiting the entry of enemy aliens. (iii) The question as to the existence of authority under which security screening was being conducted was a matter of concern from the very beginning of the security screening program to 1950. Although the Prime Minister, at a 1949 Cabinet meeting, specifically asked the Secretary to the Cabinet to report on the authority for the security rejection program, that official replied by a secret memorandum confirming that the matter was dealt with by "administrative means". Cabinet decisions determine government policy. The decisions made by Cabinet on August 5, 1946 and February 5, 1947 set the government policy with respect to security screening and clearly were to the effect that prospective immigrants not be admitted unless they had been screened by the RCMP in accordance with the applicable security criteria. But Cabinet decisions once taken must be made legally effective in one way or another. Yet, as of July 1948, no legislation, order in council or regulation had been passed authorizing the rejection of immigrants on security grounds. Immigration Act , section 38 provided the required authority for doing so subject to the appropriate order being passed. But, it was not until June 1950 that an order in council was passed giving the Minister the discretion to refuse landing by reference to the broad language contained in that section. Contemporary Cabinet papers demonstrated unequivocally that Order in Council P.C. 1947-2180 was neither intended nor considered as authority for the security screening of prospective immigrants. Confronted with the fact that there was no legal authority for the process, Cabinet opted throughout to proceed by "administrative measures". These decisions were taken on the basis that Cabinet did not view any of the orders in council in force at the time as providing the required authority.

The applicant argued that if there was no authority in the Immigration Act for the rejection of prospective immigrants on security grounds, the process may be supported by the doctrine of Crown prerogative. The prerogatives are made up of a collection of powers and duties exercised and assumed by the Crown under the common law. Once a statute occupies the ground formerly occupied by the prerogative, the Crown must comply with the terms of the statute. The applicant argued that the Crown prerogative may co-exist with a statute which treats the same subject-matter provided that the statute does not override the prerogative either expressly or by necessary implication. The Immigration Act covers the whole of the prerogative which the applicant claimed as authority for the rejection of potential immigrants on security grounds. The Immigration Act in force in 1948 conferred upon the Minister responsible for immigration the authority to determine who could enter Canada and by definition who could not. When regard is had to the scheme of the Act there was no apparent limit to the grounds upon which the Minister could refuse entry. While at common law, no alien immigrant had a right to enter Canada, the Immigration Act in force in 1948 determined the eligibility of prospective immigrants. In the respondent's case, it was decided by an immigration officer in July 1948 that he complied with the provisions of the Act and that he met the conditions prescribed by the applicable orders in council. As such, he became entitled to enter Canada.

statutes and regulations judicially considered

Amendment to Order in Council P.C. 695 of March 21, 1931, concerning the landing in Canada of immigrants, SOR/47-431.

Amendments to the Regulations under the Immigration Act, SOR/47-134.

Immigration Act, R.S.C. 1927, c. 93, ss. 3, 13, 14, 15, 16, 17, 18, 19, 20, 38.

Immigration Act—Order re landing of immigrants in Canada, SOR/50-232.

Immigration Act—Order respecting the Entry to or Landing in Canada of Enemy Aliens, SOR/50-424.

Immigration Act—prohibiting the entry into Canada of enemy aliens, SOR/47-921.

Immigration Act—prohibiting the landing in Canada of immigrants with certain exceptions, SOR/47-920.

Immigration Act—regulation respecting the production of passports by immigrants to Canada, SOR/47-922.

Interpretation Act, R.S.C., 1985, c. I-21, s. 17.

Order in Council P.C. 1931-695.

Order in Council P.C. 1945-6687.

Order in Council P.C. 1946-2071.

Order in Council P.C. 1947-2180.

Order in Council P.C. 1947-3926.

Order in Council P.C. 1948-1628.

Order in Council P.C. 1948-3721.

Order in Council P.C. 1950-2856.

Order in Council P.C. 1950-4850.

Order in Council making regulations under the Immigration Act re entry into Canada of enemy aliens, P.C. 1946-1373, Statutory Orders and Regulations, 1946.II.60.

Order in Council re status of refugees, P.C. 1945-6687, Canadian War Orders and Regulations, 1945.4.123.

War Measures Act, R.S.C. 1927, c. 206.

cases judicially considered

considered:

Canada (Minister of Citizenship and Immigration) v. Vitols (1998), 151 F.T.R. 161 (F.C.T.D.); Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1; 42 Imm. L.R. (2d) 248 (F.C.T.D.).

authors cited

Halsbury's Laws of England, Vol. 8(2), 4th ed. reissue. London: Butterworths, 1996.

Hogg, Peter W. Constitutional Law of Canada, 4th ed. Toronto: Carswell, 1997.

REFERENCE seeking a declaration that the respondent had obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. Declaration denied.

appearances:

Donald A. MacIntosh and Cheryl D. E. Mitchell for applicant at Selidovo, Ukraine.

Paul B. Vickery, Terry M. Beitner and Robert MacKinnon for applicant at Ottawa, Toronto and Winnipeg.

Donald B. Bayne, Peter K. Doody and Lawrence A. Elliot for respondent.

solicitors of record:

Deputy Attorney General of Canada for applicant.

Bayne, Sellar, Boxall, Ottawa and Scott & Aylen, Ottawa, for respondent.

    EDITOR'S NOTE

The Executive Editor, pursuant to Federal Court Act, subsection 58(2), has decided that part only of the decision herein should be published in the official reports. Omitted are pages 1-64 of the Court's 149-page reasons for order dealing with the question whether respondent was a member of the Selidovo police, as alleged in the notice of revocation. The remainder of the reasons is reported in full text as an important document for research into Canadian history as well as for the continuing relevance of the matter considered at paragraph 287: Cabinet decisions determining government policy — even those relating to vital national security issues — have to be made legally effective in one way or another (legislation, order in council or regulation).

The following are the reasons for decision rendered in English by

Noël J.:

    EDITOR'S NOTE [replacing pages 1-64]

This was a reference to the Federal Court's Trial Division by the Minister of Citizenship and Immigration under Citizenship Act, section 18 for a determination of whether respondent had obtained citizenship by false representations or by knowingly concealing material circumstances in that he had failed to divulge his membership in the Selidovo district (raion) police in German occupied Ukraine between 1941 and 1943 as well as his participation in the execution of civilians and prisoners of war during that time. It was alleged that respondent had served either as chief of police, assistant to the chief of police or as deputy chief of police as well as acting as an interpreter for members of the German forces of occupation. This police force was alleged to have collaborated with the occupying forces by executing Jews, Red Army members (prisoners of war) and by rounding up youths for deportation for forced labour in Germany. It was the Minister's submission that, at the time respondent applied for immigration to Canada, those falling within the general category —collaborators— were prohibited from entry and that respondent had failed to disclose his membership or rank in the Selidovo district police. It was said that had these facts been disclosed, respondent would have been denied entry.

At the hearing of this reference, the Minister admitted that she had no evidence to tender in proof of respondent's participation in mass murders. The allegations were thus narrowed essentially to his membership in the Selidovo police force. Respondent denied membership but acknowledged that, under threat of death, he had acted as an interpreter in Selidovo during 1942-1943. Respondent's position was that, at the time of his admission to Canada, —collaborators— were not prohibited entry or that, even if such prohibition existed in theory, it was not applied in practice. It was further urged that at the relevant time—1948—there was no legal authority for the rejection of prospective immigrants on the ground of collaboration with the enemy.

After an exhaustive review of the evidence adduced on behalf of the Minister, certain of which was based on hearsay and the witnesses lacking in credibility (pages 10 to 64 of the reasons), His Lordship found as a fact that respondent had not been a member of the Selidovo police. The argument that respondent, in having served as a translator for the police, could be considered a police member, was not supported by the evidence and ignored the plain meaning of the words.

2.  WAS THE RESPONDENT SUBJECT TO SECURITY SCREENING WHEN HE APPLIED TO IMMIGRATE TO CANADA IN JULY OF 1948?

[149]In any event, the applicant has not demonstrated that the respondent gained entry into Canada by failing to disclose his collaborationist past. It was acknowledged by the applicant that she had the burden to demonstrate the existence of a consistently followed immigration process in July 1948 when the respondent applied to immigrate to Canada. According to the applicant, this process consisted of three stages. All immigrants were required to undergo security screening by a security officer, a medical examination and vetting by an immigration officer to ensure suitability for immigration purposes.¹

[150]The applicant took the further position that there were established guidelines governing the admissibility of immigrants from Europe, including security rejection criteria. These criteria, which identified the categories of individuals to be rejected on security grounds, were disseminated to security officers operating in the field. Other directives dealing with the procedures for the admission of immigrants to Canada were circulated to immigration officers and security officers at posts throughout Europe. According to the applicant, in July 1948 persons who served with the enemy in any capacity, persons from German occupied countries known to have collaborated with the Nazi machine, and "collaborators" generally were prohibited from coming into Canada.

[151]In support of her position, the applicant called Nicholas d'Ombrain as an expert witness to testify with respect to the working of government at the Cabinet and sub-Cabinet levels including the workings of the supporting machinery for Cabinet, the interpretation of documents relating to the machinery of government, the formation of policy at the Cabinet and sub-Cabinet levels, the relationship between the Cabinet level process and the official level process, policy making in security and intelligence and the management of the government's apparatus for security and intelligence.²

[152]The applicant also called Roger Martineau and Roger St. Vincent who were both immigration officers in Europe in 1948. Mr. St. Vincent was assigned to the Canadian Government Immigration Mission in Germany in June of 1948 and between 1948 and 1952, worked both in Karlsruhe, Germany and Salzburg, Austria as an immigration officer.³ Mr. Martineau was dispatched to Germany in May of 1948 to join the Canadian mission. From the end of June 1948 until August 1949, he was posted in Austria.⁴ Mr. Martineau was the head of an immigration team composed of a security officer, a medical officer and a visa officer.

[153]Both the respondent and his wife also testified with respect to the procedure they underwent in applying to immigrate to Canada.

[154]On the evidence before me, the applicant has not established that there was a consistent process applied to all immigrants from Austria in July of 1948, that the process, if applicable, would have elucidated answers about the respondent's wartime activities, or that collaborators "generally" were prohibited from entering Canada.

CANADA'S IMMIGRATION POLICY AFTER THE WAR

[155]Mr. d'Ombrain testified that little immigration to Canada took place in the 1930s due to the Depression. In 1931, Canada adopted an extremely restrictive immigration policy by Order in Council P.C. 1931-695, creating a general prohibition against immigration, with the exception of a small number of narrow categories.⁵ This policy was explicitly designed in light of the economic conditions prevailing in Canada during the Depression and in particular Canada's reduced labour requirements. As a result, during the 1930s, Canada received approximately 7,000 immigrants per year.⁶ During WWII there was no organized immigration to Canada.⁷

[156]When WWII ended, although the situation both nationally and internationally had undergone dramatic changes, Canada's immigration was still governed by the policy of the 1930s. As a result, Canada was ill-prepared to deal with large-scale immigration.⁸ Canada was nonetheless being pressed towards increasing the flow of immigrants to this country. During this postwar period, there was an affluence of displaced persons (DPs) in Europe and like the other allies, Canada was asked to help alleviate this problem by allowing significant numbers of these DPs to immigrate to Canada.⁹ Further, Canada's need to build a postwar economy created a demand for immigrants with professional and commercial skills. Those in charge of building the economy saw an opportunity to bring in qualified labour in high numbers.¹⁰

[157]As a result of these pressures, between 1945 and 1947, the Government of Canada engaged in the development of a new immigration policy on a priority basis. In the fall of 1945, a special committee on immigration chaired by the Minister of Mines and Resources, J. A. Glen, was established to devise this policy.¹¹ The Cabinet Committee set up an interdepartmental committee in March 1946, which in March 1947 was reconstituted as the Interdepartmental Immigration-Labour Committee.¹²

[158]While the Cabinet Committee on Immigration undertook this review, the Cabinet nonetheless took some initial steps to loosen Canada's immigration policy. For example, as early as October 26, 1945, the Cabinet approved the relaxation of the provisions of P.C. 1931-695 for refugees who had entered Canada during the war period and who were without status.¹³ The immigration officer in charge at a port of entry was permitted to grant landed status to any refugee who had entered Canada subsequent to September 1, 1939, provided that the refugee was able to establish to the satisfaction of this officer that he was of good character and could comply with the provisions of the Immigration Act [R.S.C. 1927, c. 93] in all other respects.¹⁴

[159]Despite this initial relaxation of the regulations, the prohibition on the entry of enemy aliens to Canada was maintained and on April 9, 1946, an order in council to this effect was passed under the authority of section 38 of the Immigration Act. The sole exception to this prohibition was for those who could satisfy the Minister of Mines and Resources that they were opposed to an enemy government.¹⁵

[160]The review undertaken by the Cabinet Committee on Immigration was completed in late 1946 and a report was presented to Cabinet at the beginning of 1947. Further to the recommendations of the Committee, Cabinet, on January 30, 1947, passed an order in council amending P.C. 1931-695 and widening both the admissible classes of near relatives¹⁶ (the near relatives scheme), agriculturalists and allowing the admission of persons for employment in primary industries. The portion of this Order in Council relevant to this reference provided for the admission to Canada of:

4. (a)    An agriculturalist having sufficient means to farm in Canada.

(b)    An agriculturalist entering Canada to farm, when destined to a father, father-in-law, son, son-in-law, brother, brother-in-law, uncle or nephew engaged in agriculture as his principal occupation and who is in a position to receive such immigrant and establish him on a farm.

(c)    A farm labourer entering Canada to engage in assured farm employment.

(d)    A person experienced in mining, lumbering or logging entering Canada to engage in assured employment in any one of such industries.17

[161]In April of 1947, the Cabinet Committee recommended to Cabinet a further expansion of the categories of admissible relatives¹⁸ and approved a draft statement on immigration policy.¹⁹ This statement was released in the course of a speech by Prime Minister King to the House of Commons on May 1, 1947. It set out the policy that would guide the government's approach to immigration in the following years. The Prime Minister stated that:

The policy of the government is to foster the growth of the population of Canada by the encouragement of immigration. The government will seek by legislation, regulation, and vigorous administration, to ensure the careful selection and permanent settlement of such numbers of immigrants as can advantageously be absorbed in our national economy . . . .

At present, the limiting factor is not our legislation or regulations, but the shortage of transport . . . . The problem of transportation is a very real one. It cannot be overcome in a week or a month, or indeed with the next year . . . .

Because of the limitations of transport, the government decided that, as respects immigration from Europe, the emphasis for the present should be on the admission of the relatives of persons who are already in Canada, and on assisting in the resettlement of displaced persons and refugees . . . .

Canada is not obliged, as a result of membership in the united nations or under the constitution of the international refugee organization, to accept any specific number of refugees or displaced persons. We have, nevertheless, a moral obligation to assist in meeting the problem, and this obligation we are prepared to recognize.

The government is sending immigration officers to examine the situation among the refugee groups, and to take steps looking towards the early admission of some thousands of their number. In developing this group movement, the immigration branch and the Department of Labour will determine jointly the approximate number of persons who can be readily placed in employment and absorbed into various industries and occupations. Selection officers will then consider applicants for entry into Canada, examine them on a basis of suitability and physical fitness, and make arrangements for their orderly movement and placement . . . . In taking these steps the government is seeking to ensure that the displaced persons admitted to Canada are of a type likely to make good citizens.

Let me now speak of the government's long term programme. It is based on the conviction that Canada needs population. The government is strongly of the view that our immigration policy should be devised in a positive sense, with the definite objective, as I have already stated, of enlarging the population of the country.²⁰

[162]In the summer of 1947 and shortly after the Prime Minister's statement, a number of orders in council authorizing the landing of large numbers of DPs in Canada were passed. While the admission of 5,000 DPs was authorized June 6, 1947, this number was increased a number of times until, by the fall of 1948, the total number of DPs authorized for admission to Canada had reached 40,000.²¹

[163]These changes to Canada's immigration policy represented the beginning of a movement to allow greater numbers and categories of immigrants to enter Canada in the postwar period. Immigration to Canada reached 71,719 in 1946, 64,127 in 1947 and 125,414 in 1948.²²

[164]In June of 1950, the eligibility criteria for prospective immigrants was further widened and the minister responsible was given a broad discretion to land suitable persons.²³ In September 1950, the prohibition against Germans entering Canada due to their status as enemy aliens was rescinded.²⁴

SECURITY SCREENING OF IMMIGRANTS: BACKGROUND

[165]Three important trends emerge from a review of the evidence. The first is that throughout 1945-1950, the Cabinet was of the view that the security screening of potential immigrants was a necessary measure which ought to be maintained. Second, Cabinet ultimately decided that security concerns and the development of a security screening system for immigrants were matters which properly belonged to the RCMP rather than to the minister responsible for immigration. Third, it was incumbent upon the RCMP to develop and implement the security screening system in such a way as to interfere as little as possible with the flow of immigrants to Canada. In the end, the government's decision to dramatically increase the flow of immigrants while casting on the RCMP the responsibility of protecting Canada's security interests in the least obstructive way possible placed extreme pressures on those charged with this task. This conflict had an important impact on both the security screening criteria and the method of security screening which were developed and implemented during the mid to late 1940s.

[166]Security was a high priority during WWII and in the immediate postwar period, it was recognized that there would be a continuing need to have coordinated security policies made applicable throughout the government.²⁵ This concern became particularly acute after September 1945 when a cipher clerk from the Soviet embassy in Ottawa named Gouzenko defected and revealed the existence of a communist spy network in Canada. The Gouzenko scandal caused widespread concern at the highest levels of government and generated a serious preoccupation with Canada's internal security. This preoccupation with security only grew in the late forties as Cold War tensions increased.²⁶

[167]As early as October 15, 1945, Cabinet recognized the need to security screen potential immigrants. When in 1945 Cabinet decided to relax its 1931 policy on immigration and regularize the status of those who had entered Canada during the war, it was also decided that these individuals would first have to be subject to security screening by the RCMP; only those individuals granted clearance by the RCMP would be eligible for landing under the Immigration Act. The Cabinet did not decide, however, how the screening would take place, for instance whether it would involve a personal interview or checking with other intelligence agencies. The method and extent of security screening was left to the discretion of the RCMP.²⁷

[168]Further evidencing the Cabinet's concern for security was the formation in May 1946 of the Security Panel, an interdepartmental advisory committee which was to "advise on the co-ordination of the planning, organisation, and execution of security measures which affect government departments; and . . . on such other security questions as may be referred to it." The Security Panel was a committee of experts, established under the direct authority of the Prime Minister and chaired by the Secretary of Cabinet, the most senior official in government. According to Mr. d'Ombrain, the make up of the Panel during the relevant period reflects the importance attached to security issues at that time.²⁸

[169]The Security Panel had an important role in the development of security policy with respect to immigration to Canada. The Security Panel worked out in detail the elements of Canada's security policy on immigration and, from time to time, Cabinet would either take note of these security issues or, when called to do so, make decisions on policy questions related to security.²⁹

[170]Canada's security policy relating to immigration was dealt with on a "need to know basis" and was initially developed by the Security Panel along a different policy track than that with respect to immigration. The Department of Mines and Resources concerned itself with all matters relating to immigration including the determination of who could and could not enter Canada with the exception of entry prohibited on grounds relating to security, an area over which the RCMP was eventually given authority.³⁰

[171]In July of 1946, the Director of Immigration, Mr. A. L. Jolliffe, raised with the Security Panel at only its second meeting some issues arising from Canada's immigration policy.³¹ It was recognized that due to the resumption of tourism and the decision of the government to broaden the classes of immigrants permitted to come to Canada,³² it would be desirable to engage in some form of security screening of potential immigrants. Members of the Panel expressed uncertainty about whether existing immigration regulations provided sufficient authority to refuse immigrants on security grounds and it was recognized that no Canadian organization or structure existed for the security examination of prospective immigrants abroad. The Security Panel decided that United Kingdom facilities in Europe would provide reasonable temporary facilities for the vetting on security grounds of potential immigrants to Canada. The Panel also struck a subcommittee³³ to draft regulations authorizing the rejection of undesirables on security grounds.³⁴

[172]This subcommittee went on to recommend that the Minister of Mines and Resources be given the discretion to certify that "a person should be refused entry to Canada on the grounds that he was a Nazi or a Fascist or a person who held beliefs subversive to democratic government." The Minister of Mines and Resources, J. A. Glen, however, was of the view that there should be an amendment to the Immigration Act , the effect of which would be to prohibit the entry of:

Persons who are, or at any time have been, members of the Nazi Party or of the Fascist Party or of the Gestapo or of the Schutzsaffel or of the Sturm Abteilung or of any organization or party auxiliary to or supporting Nazism or Fascism or persons classified as war criminals by the United Nations War Crimes Commission.³⁵

[173]Noting the difficulty of drafting such a provision, the Cabinet on August 5, 1946 rejected the recommendation to deal with security screening by way of regulation or legislative amendment. Rather, the Cabinet decided that security screening should be dealt with by "departmental administrative action." Mr. d'Ombrain expressed the view that in arriving at this decision the Cabinet was likely mindful of the importance of maintaining secrecy in security matters.³⁶

[174]In light of Cabinet's decision, the Security Panel met on August 19, 1946 to consider the security screening of potential immigrants. The Security Panel opined that it was a matter of "considerable importance" that the large numbers of DPs and individuals from Central European territories who were expected to apply to immigrate to Canada in the near future be security screened. Its was noted that the deportation of illegal entrants would be a practical impossibility in the case of DPs. The Panel thus recommended to the Minister of Mines and Resources that immigration teams, including members of the RCMP, be dispatched to examine applicants in their country of origin.³⁷ This was an early reference to the idea of screening DPs abroad, a practice which would soon be implemented. The Security Panel was concerned that:

. . . individuals with a history of membership in Fascist, Nazi or similar organizations should be identified and rejected.³⁸

[175]The involvement of the RCMP in vetting immigrants on security grounds was approved in October 1946 by the Minister of Justice, Louis Saint-Laurent, on the recommendation of S. T. Wood, Commissioner of the RCMP.³⁹ The initial plan called for four members of the RCMP to be sent to London to work out of the Passport Control Department and carry out a paper investigation of potential immigrants. The first RCMP officer, Staff Sergeant Hinton, was to be dispatched on October 25, 1946.⁴⁰

[176]Even at this early stage, the RCMP was already pressed by the flow of immigration. When Staff Sergeant Hinton arrived in London, he faced a backlog of some 6,261 applications. It was decided that while the information available on these applicants was not "all that [was] desired to enable a close check," obtaining additional information on the applicants would cause "unreasonable delay". As a result, Sergeant Hinton was directed to "do the best he could" with the information available to him.⁴¹

[177]As early as December 1946, there was increasing pressure from the Cabinet Committee on Immigration for the admission of a greater volume of immigrants. By letter dated December 27, 1946, Assistant Commissioner Nicholson, Director of Criminal Investigations for the RCMP, conveyed to Sergeant Hinton the concern expressed by immigration officials that only 25 to 30 cases per day were being processed through his office. Nicholson wrote that having regard to the backlog, it was necessary that the RCMP make certain "concessions" so as to maintain the present method of security screening "in principle". This concession was that individuals who had applied for admission to Canada prior to November 10, 1946, and who were resident in England, France, Norway, Greece, Belgium, the Netherlands, or Denmark would be exempt from security screening.⁴²

[178]It is clear that in January of 1947, as evidenced by a report to the Security Panel, the security screening procedure was still viewed as experimental and one which would be altered in light of experience.⁴³ It was the view of Assistant Commissioner Nicholson (as expressed to Staff Sergeant Hinton) that:

It will be a long time before we can get anything like complete coverage and we must accept a gradual growth of the plan. Adjustments will have to be made as we go along and we must not worry if a percentage of undesirables slip by. Our objective is to slowly tighten control and to concentrate on the rejection of people who are really undesirable.⁴⁴

[179]On January 27, 1947, the Director of Immigration wrote the Minister of Mines and Resources, and stated that with respect to security screening:

The procedure adopted has been in effect since October last, and it has been established that the same is impracticable under present conditions. The R.C.M.P. report that with the available machinery the maximum number of cases that can be cleared within the next twelve months is 10,000 or approximately 800 per month. This would mean that in addition to the wives and minor children less than 5000 alien immigrants could come to Canada during the coming season. Applications for the admission of relatives now exceed 10,000 and will increase materially within the next few months and, in addition, there will be many other admissible alien immigrants available to come forward during 1947; the continuance of the present procedure will lead to a virtual closing down of alien immigration. This will result in two lines of criticism"one, that applications for the admission of relatives are being held up for many months by the Immigration Branch, and two, that the extension of regulations to provide for increased immigration does not mean anything because the classes admissible under the law cannot come forward owing to security screening requirements.⁴⁵

[180]When the Minister of Mines and Resources recommended to Cabinet that the classes of persons admissible to Canada be expanded, Mr. Glen also pointed out that:

. . . the procedure for security screeing [sic] of immigrants established as a result of the decision of August 5th, 1946, had proved incapable of dealing with the number of applications for admission which were being received. Unless this procedure were eliminated or substantially modified, the extension of the regulations to admit further classes or groups of immigrants would be ineffective because of the number of persons applying for admission and the time required to conduct the screening examination now required.⁴⁶

[181]Despite the warning by Minister Glen that security screening was already rendering ineffective the Cabinet's decision to further increase immigration, the Cabinet decided on January 29, 1947 to amend the immigration regulations so as to admit yet further classes of relatives of Canadian residents, agriculturalists and persons for employment in primary industries. The Cabinet requested that the Security Panel re-examine the security screening problems involved with this expansion.⁴⁷

[182]The Security Panel met on January 30, 1947. It was informed that although the current practice of security screening would only allow the screening of about 10,000 cases per year, the flow of immigration from Europe would bring 30,000 to 50,000 immigrants in 1947. The ability to provide security screening was hampered both by a lack of resources and by the limited information available to RCMP officers. The Panel recommended against the abandonment of security screening and offered two alternatives to the Cabinet. The preferred option was to focus all screening on applicants originating from Eastern Europe and to allow other applicants otherwise eligible to immigrate to enter without screening.⁴⁸ The Security Panel noted that:

In respect to the general principle of screening, the Panel desire to reaffirm its importance and to point out the substantial dangers involved in permitting immigrants to enter without investigation. This is particularly true of persons coming from countries within the Soviet sphere of influence where evidence suggests that emigration can only take place with the permission of the government concerned and there seems little doubt that in any movement of persons, a proportion will be included from these areas who will be instructed to pursue the aims of their government upon taking up residence in Canada.⁴⁹

This illustrates the preoccupation with communist espionage in early 1947.⁵⁰ The second option was to maintain the system of screening, but only in so far as it would not interfere with the admission of immigrants who were otherwise eligible. The issue of who would be selected for screening would be left to the discretion of the RCMP. It was acknowledged that this alternative:

. . . would amount to a system of "spot' checking which would at the most provide for examination of 20% of the expected immigration. While this is not desirable from a security standpoint, it would permit full implementation of the government's decision to extend immigration, and at the same time continue the frame-work of a screening service which could be expanded if thought desirable at a later date.⁵¹

The Security Panel specifically noted that:

In the interests of good security, alternative (a) [the screening of applicants from Eastern Europe], is to be preferred, but it is realized that there are other important considerations which might render it unsuitable for practical application and, if this is so, alternative (b) [selective screening] is recommended rather than abandoning security screening entirely.⁵²

[183]On February 5, 1947, Cabinet considered the report from the Security Panel and, contrary to the advice of the Panel, adopted alternative (b). It agreed that:

. . . security screening of aliens applying for entry into Canada as immigrants be required only in cases in which it was felt that the information available to immigration authorities needed to be supplemented by special security investigations.

It was also agreed that the possibility of improving screening facilities through increased co-operation from U.K. and U.S. agencies be explored by the Department of Mines and Resources and the R.C.M. Police in consultation with External Affairs.⁵³

The Cabinet thus decided to pursue a selective course of screening, without deciding who to screen, how to screen or what screening criteria would be applied. These decisions were left to the RCMP.⁵⁴ This decision to pursue a course of selective screening clearly demonstrates the ongoing tension between the government's desire to increase the flow of immigration to Canada while maintaining security clearance procedures.⁵⁵ Mr. d'Ombrain testified that at this stage, there was not so much a policy with respect to security screening as there was ongoing improvisation.⁵⁶ This improvisation was taking place while the number of immigrants to Canada was increasing dramatically.

[184]The first immigration inspection teams were sent to Germany in March of 1947. According to the evidence of Mr. d'Ombrain:

Two Immigration inspection teams were sent to Germany in March 1947. Each consisted of an Immigration Inspector, a physician from the Immigration Service of the Department of National Health and a RCMP officer for security screening. These teams began by examining the applicants among Displaced Persons eligible for entry under the close relatives' scheme. When the Government decided to accept 5,000 and later 10,000 Displaced Persons (in the category of bulk labour) during the summer of 1947, the teams expanded their examinations to include these applicants . . . . A third team was to be added shortly . . .⁵⁷

[185]From the time when Staff Sergeant Hinton was dispatched to London in 1946 until 1948, security officers were rejecting prospective immigrants on the basis of verbal instructions. Towards mid-1948, a decision was made to compile a list of the reasons for rejection, however this list was not finalized before November 1948.⁵⁸ Security officers were therefore rejecting immigrants on the basis of verbal instructions in July of 1948 when the respondent would have obtained his visa.

[186]At a meeting of the Security Panel on April 5, 1949, reference was made to a memorandum from the RCMP entitled "Security Screening of Immigrants-Present Problems", dated March 31, 1949. This document purports to deal with problems which were encountered with respect to security screening during the preceding year. Having regard to the flow of immigrants, it is not surprising to find the following statement:

The security screening programme had become partially ineffective by:

(a) over-loading of screening facilities due to the large number of prospective immigrants; and

(b) the impossibility of securing any information relative to security from Eastern European countries, the Far East and Israel.59

It should also be noted, however, that the screening of DPs in their camps was viewed as a "useful method of checking their desirability." At this time, 1,000 of the 60,000 DPs considered for entry to Canada had been rejected on security grounds.⁶⁰

[187]It was also reported to the Cabinet in August 1949 by the Chair of the Security Panel that:

Security screening has been carried on by the R.C.M. Police to the greatest extent possible consistent with the amount of cooperation which they are able to secure from friendly intelligence and security organizations and without delaying unduly the implementation of the Government's immigration plans.⁶¹ [Emphasis added.]

Mr. d'Ombrain agreed with the suggestion of counsel for the respondent that this indicates that:

. . . the RCMP have done their best to the greatest extent possible, but given the circumstances and the press of the government's immigration plans they have not been entirely successful.⁶²

[188]Thus, it can be seen that while in principle the Cabinet, throughout the mid to late 1940s maintained its support for security screening, the growing influx of immigrants to Canada had a serious impact on the efficacy of the security screening program as a whole. What is most relevant to the issues in this reference, however, is the extent of security screening of DPs applying to immigrate from Austria in July of 1948.

METHOD OF SECURITY SCREENING

[189]It is the position of the applicant that the security screening process for all displaced persons seeking admission to Canada in 1948 from Austria was identical. According to the applicant, all DPs first passed through the International Refugee Organization (IRO)⁶³ process. Each immigrant then went through a personal interview by a team of Canadian immigration officials including a security officer, a medical officer and an immigration officer.

[190]The respondent was a DP in Austria in 1948, when he applied to come to Canada. The respondent's uncle, Jacob John Janzen of Humboldt, Saskatchewan applied for the admission to Canada of the respondent, his wife and their two children on January 26, 1948 by completing a Form 55 sponsorship application.⁶⁴

[191]The Form 55 was the only Canadian form produced in these proceedings in connection with the respondent's immigration to Canada. The applicant recognized that the filing of this form was the first step in the respondent's immigration to Canada and that the immigration process in this case, started from Canada. The only information in respect of the respondent on this form is his age, marital status, relationship to the sponsor, date of birth, place and country of birth, citizenship, present address, occupation in his own country, intended occupation in Canada. It is also noted that the respondent had never lived in Canada or the United States. Mr. Janzen confirmed on this form that he would provide "home and full employment for [the family] on the farm" and that the transportation for the family was to be prepaid.

[192]A travel document, "Certificate for the Purpose of Emigration to Canada" issued by the Preparatory Commission of the International Refugee Organization (PCIRO) to Johann Dueck,⁶⁵ shows a medical stamp and visa stamp dated July 20, 1948. These stamps indicate that the respondent passed the Canadian medical and immigration screening on this date. The evidence discloses that a security officer did not stamp on the potential immigrant's travel document.⁶⁶

[193]It is the position of the respondent that he was not seen by a security officer and aside from the testimony of Tatjana Dueck, there is no other direct evidence on this point. As a result, at issue is whether there was in place a sufficiently uniform system so as to make it likely that the respondent was subject to security screening before his admission to Canada.

Extent of Security Screening in Austria in July 1948

[194]In light of the Cabinet's February 1947 decision to authorize a selective system of security screening at the discretion of the RCMP, representatives of the RCMP, External Affairs and Immigration immediately made a decision to security screen all DPs. It was agreed that while as a rule approvals for visas would no longer await security clearance by the RCMP, a different procedure would apply to immigrants from Germany, Austria and Italy. Specifically, it was agreed that:

All applications arising in Canada for the admission of relatives from Germany, Austria and Italy other than those relating to the wife and unmarried children under eighteen years of age of a legal resident of Canada, will be withheld pending a clearance from [the RCMP] which will only be given after an enquiry overseas. The cases of displaced persons in Germany, Austria and Italy who are admissible to Canada on a relationship basis are being dealt with differently, they being screened by officers of [the RCMP] sent to Europe for that specific purpose.⁶⁷ [Emphasis added.]

All sponsored applications arising in Canada were to be initially checked through the records of the RCMP headquarters in Ottawa and all those whose investigation disclosed an unsatisfactory record were to be reported immediately to the Commissioner of Immigration.⁶⁸ Following this initial investigation by the RCMP, the file was then transmitted overseas so as to be available for the screening of the potential immigrant in Europe.

[195]It is questionable, however, whether the RCMP had sufficient resources to fully implement this decision and thus screen all DPs, whether by personal interview or by paper screening. There were enormous demands being placed on those performing the security screening of potential immigrants. This is made obvious by their limited numbers, their extensive responsibilities and the growing number of immigrants whom they were expected to screen.

[196]At first, two immigration teams were sent to Germany in March of 1947 and their duties were originally confined to the examination of DPs admissible under the near relative scheme. When, however, Cabinet began to authorize the admission of large numbers of DPs, the screening of these individuals was also added to their responsibility. On August 8, 1947, the Acting Minister of Mines and Resources⁶⁹ made a request to the Cabinet for the allocation of more resources for the immigration teams stationed in Germany. He reported that at that time approximately 16,000 cases had been approved under the close relative scheme; this was in addition to the responsibility of the teams to select individuals to fill the 10,000 person quota authorized by that date for the movement of bulk labour to Canada.⁷⁰

[197]Shortly after August 8, 1947, a third team was to be added to the Canadian operations in Germany and Austria.⁷¹ By November 1, 1947, the RCMP responsibilities had increased to encompass the screening of all potential immigrants to Canada from Germany and Austria.⁷²

[198]In March of 1948, there was only one immigration team working out of Austria, and it was reported to Mr. Jolliffe, the Director of Immigration, that this team consecutively spent two weeks at each of five IRO processing centres in Austria. Thus, the team would visit each processing centre approximately once every two months. It was reported that this was causing delays and it was therefore proposed to Mr. Jolliffe by an official of the Canadian Government Immigration Mission that one of the teams in Germany be transferred to Austria.⁷³

[199]In July of 1948, when the respondent applied to immigrate to Canada, there were two immigration teams in Austria, one in the U.S. zone and one in the British zone. In August 1948, however, one of the teams left, and as a result until sometime in 1949, there was again only one Canadian immigration team in all of Austria.⁷⁴ As of October 8, 1948, and thus after the period at issue in this reference, there were a total of 11 security officers stationed out of the Canadian Government Immigration Mission in Karslruhe, Germany.⁷⁵

[200]In terms of the numbers of DPs screened, a report under cover of a memorandum dated March 30, 1948, from the RCMP to the Security Panel⁷⁶ noted that from November 1, 1946 to March 30, 1948:⁷⁷

    Volume Handled and Rejections to Date

Requests received from Immigration

  November 1, 1946 to date    33,538

Immigrants rejected by R.C.M.P.

  office, London    70

Sponsors rejected by R.C.M.P.,

  Ottawa    47

Displaced Persons rejected by R.C.M.P.

  screening D.P.'s    272

Displaced Persons cleared by R.C.M.P.

  screening D.P.'s    1,339

Backlog of uncleared applications,

  R.C.M.P., Ottawa    1,311

Backlog of uncleared applications,

 R.C.M.P., London    8,000

Returned to Immigration cleared    22,499             

    33,538    33,538

Demandes reçues de l'Immigration

  1^er  novembre 1946 jusqu'à [. . .]    33 538

Immigrants refusés par le bureau de la GRC,

 à Londres [. . .]    70

Demandes de parrainage rejetées par la GRC,

  à Ottawa [. . .]     47

Personnes déplacées refusées par suite du

  contrôle des PD par la GRC [. . .]    272

Personnes déplacées ayant reçu le feu vert

  par suite du contrôle des PD par la GRC [. . .]    1 339

Arriéré des demandes en attente, GRC,

  à Ottawa [. . .]    1 311

Arriéré des demandes en attente, GRC,

  à Londres [. . .]     8 000

Cas traités renvoyés à l'Immigration [. . .]    22 499             

    33 538    33 538

[201]Statistics prepared for the Immigration/Labour Committee show that 8,728 DPs had arrived in Canada by April 8, 1948.⁷⁸ In comparing this number to the 1,611 DPs who had been screened by the RCMP by March 30, 1948, the respondent suggested this would mean that only 18.45% of DPs had actually been screened by the RCMP.⁷⁹ While this calculation involves a number of assumptions, the applicant did not challenge these assumptions, the source from which these numbers were derived, the method which was used or the conclusion reached with respect to the number of DPs screened. These numbers do raise a serious question about the extent to which a consistent method of security screening was being applied during the period at issue.

[202]A "Confidential" and "Off The Record" letter to Dr. A. McNamara, the Deputy Minister of Labour, from one of his officers working in Karlsruhe, on May 8, 1948 illustrates the pressures that were being placed on the security officers at the time in Germany and Austria:

I am afraid we are going to revert to a time when it becomes more important to observe the niceties of procedure than to get boats filled with suitable DPs.

Neither Cormier nor anyone else could hope to avoid all "confusion" in our operations in Germany and Austria, for the hectic conditions locally make this inevitable. But I would point out that in spite of any "confusion" for the last severah [sic ] months, no IRO shipment has been cancelled on our request; no boat has been sent out with empty places; and we have always had a surplus waiting for shipment on reasonably short notice, and have in fact handled some shipments on very brief notice. Insistence on procedures would have killed this, and in fact in early months we were not ready at all times.⁸⁰ [Emphasis added.]

[203]Given the known influx of immigrants to Canada from Europe in 1948 and the pressures placed on the RCMP not to impede the flow of immigrants, it is likely that the rigorous security procedure in place was not always followed. This is particularly the case where "filling the boats" was a known priority.

Screening of Agriculturalists

[204]Assuming, however, that the respondent was screened, it is the position of the respondent that he was admitted to Canada as an "agriculturalist" and that agriculturalists were not subject to personal interviews, but rather only to a paper check by security officers. Thus, according to the respondent, if the officer categorized the respondent as an agriculturalist, he would not have been personally interviewed by a security officer.

[205]On discovery, the applicant admitted that the respondent had not been admitted to Canada either as a near relative, or under P.C. 1947-2180, the bulk labour scheme. The applicant further admitted that while it was possible the respondent had been admitted to Canada under paragraph 4(c) of P.C. 1947-4849 [SOR/47-920], (the consolidation of P.C. 1931-695) because the respondent was sponsored by his uncle, he was probably admitted pursuant to paragraph 4(b). Paragraph 4(b) provided for the admission of an agriculturalist entering Canada to farm with the assistance of an uncle⁸¹ who was engaged in agriculture while paragraph 4(c) provided for the admission of a farm labourer entering Canada to engage in assured employment.⁸²

[206]It was the evidence of the two immigration officers, Mr. St. Vincent and Mr. Martineau, that all DPs were subject to an interview with a security officer, an examination by a medical officer and finally an interview with a visa officer.⁸³

[207]On March 29, 1947, Mr. Jolliffe, the Director of Immigration issued "Instruction No. 1: Procedure in Handling Alien Immigration" to those administering the immigration program. This document reflects the screening policy adopted by the RCMP following the Cabinet's decision of February 5, 1947:

All prospective immigrants in Russia, Germany, Austria and Italy require Security clearance before they are granted visas with the exception of wives and minor children and servicemen's fiancees when the latter are not alien enemies. Displaced persons are screened in occupied territory by special arrangements with the R.C.M.P. and I.G.C.R.⁸⁴

Instruction No. 1 advised that the Inter-Governmental Committee on Refugees⁸⁵ had agreed to assemble DPs coming within its mandate for examination by the Canadian Immigration teams sent to the Occupied Countries for this purpose and to arrange for the transportation to Canada of those granted visas.

[208]Mr. d'Ombrain testified that Instruction No. 1 contained straightforward operational instructions to immigration officers in relation to security clearance. Although the clearances would actually have been handled by the RCMP, Mr. Jolliffe's subordinates were here informed of the policy that would be followed.

[209]Instruction No. 1, however, also directed that the security screening of all those admissible under section 4 of P.C. 1931-695 would be "dealt with differently," in that the transportation company or other organization recruiting prospective immigrants would provide the necessary information to the immigration officer; it appears that it was contemplated that the screening would be comprised of a paper process rather than a personal interview.⁸⁶ Similarly, Instruction to Canadian Visa Officers No. 3, dated July 29, 1947 and issued by the Acting Director of Immigration again outlined different security screening procedures for immigrants admissible to Canada under P.C. 1931-695. A paper process was contemplated for those immigrants admissible to Canada under paragraph 4(b) of P.C. 1931-695 when recruited by the Colonization Departments of the CPR and CNR. While applicants coming within paragraph 4(c) of P.C. 1931-695 were to be processed based on a Form 55, it is unclear from this document whether the security screening was to be by personal interview or only by a paper check.⁸⁷

[210]As noted above, the RCMP prepared an undated report entitled "Security Screening of Immigrants" submitted to the Security Panel under cover of a memorandum dated March 30, 1948. According to Mr. d'Ombrain, this report related the experience to date with respect to security screening since the Cabinet's decision of February 1947. It also provided some insight into how security screening was being conducted.⁸⁸ With respect to the method employed it was reported that:

Five types of immigrants are dealt with under methods that vary in each case and which have been agreed upon as between immigration and RCMP. These types are:-

(a) Near Relatives-Sponsors resident in Canada.

(b) Near Relatives-Displaced persons. Sponsors resident in Canada.

(c) Displaced Persons-Brought in under special employment categories.

(d) Agriculturalists-Selected by Railway Colonization officials.

(e) All other immigrants not falling within the first four categories and subject to admission by special Order-in-Council such as clerks, teachers, professional men, scientific workers, etc.

The main distinction in method of examination is found between that followed in respect to types (b) and (c) (displaced persons) and that followed in respect to types (a), (d) and (e).

The displaced persons are examined verbally in their camps. Their papers are studied and such records as may be available are searched.

Applications of other prospective immigrants-types (a), (d) and (e)-are checked against the records of our contacts but the applicant himself is not examined by the security investigator. [Emphasis added.]

[211]This report by the RCMP purports to inform the Security Panel with respect to the screening of immigrants generally. It is fair to assume that it seeks to cover all the methods by which potential immigrants were being screened at the time. It is clear that the respondent did not come within categories (a) or (b) since he did not qualify as a near relative. Nor does it appear that he came within category (e).

[212]It appears therefore that the respondent came within either category (c) or category (d). On the evidence of Mr. Martineau, it was possible that an individual going to work on an uncle's farm would be a "farm labourer", coming under the bulk movements of labour.⁸⁹ On this view, the respondent would have been categorized as falling within category (c) of the March 30, 1948 list. He would thus have been subject to a personal interview.⁹⁰

[213]It is also possible, however, that the respondent fell under category (d) of the March 30, 1948 list, particularly if he came to Canada under paragraph 4(b) of P.C. 1931-695, which the applicant has admitted is probable. On cross-examination Mr. St. Vincent acknowledged that in September of 1948, he became aware that some immigration officers were of the view that the screening process applicable to agriculturalists was different than that applied to DPs generally. When asked what he learned about agriculturalists in September 1948, Mr. St. Vincent testified:

A. That many people were claiming that there was a different procedure for agriculturists; whereas we were of the opinion that agriculturists meant only those people who were applying to proceed to Canada to settle on land offered by the Canadian Pacific or Canadian National Railways, or buy land offered by the colonization departments of provinces out west.

Q. You say "many people were claiming". Who were the people who were claiming?

A. Those people"claiming what?

Q. Claiming that there was a different policy for agriculturalists.

A. Yes; that it didn't apply to us when it came to farm labourers.

Q. Sir, you said "many people were claiming that there was a different policy for agriculturalists". Who was claiming this?

A. Immigration officers in discussion with us.⁹¹

Thus, while Mr. St. Vincent and Mr. Martineau appear to have a clear recollection as to the unwavering method by which DPs were being screened based on their own practice, there is evidence from the field that in 1948 other immigration officers considered that agriculturalists generally⁹² were not to be security screened by personal interview. Had an officer with this view screened the respondent, he would have been subject only to a paper screening.

[214]In order for the applicant to demonstrate that it was likely the respondent was personally interviewed, it was incumbent upon her to demonstrate that the respondent would have been categorized by the officer reviewing his file as falling into category (c) rather than (d) of the March 30, 1948 list. The evidence before me does not allow me to draw a firm conclusion on this point, and therefore, I must conclude that the applicant has not met her burden on this issue.

Forms

[215]Nonetheless, the applicant argues that whether the respondent was screened personally or by way of a paper investigation he would have been required to complete an application form which requested information disclosing his wartime activities. It is the position of the applicant that if these activities had been accurately disclosed he would have been prohibited from entering Canada.

[216]According to the evidence, the respondent's uncle completed a Form 55 sponsorship application. This form did not specifically require information in respect of military service or wartime activities of the potential immigrant. With respect to occupation, this form requested only information with respect to present occupation and intended occupation in Canada; the respondent's Form 55 indicates "farming" in both cases.

[217]The respondent maintains that he completed no other form and thus issues arise as to whether there were other forms consistently being used by Canadian immigration authorities in July of 1948 and if so whether such forms would have elicited the type of information susceptible of leading to the rejection of the respondent based on the applicable security criteria. In this regard, it is suggested by the applicant that there was both a Canadian application for visa and IRO documentation before the security officer which would have provided him with this information.

[218]In February of 1947, Mr. Jolliffe wrote Mr. Cotsworth, the Acting Commissioner of European Immigration, a letter which in part dealt with the security screening of DPs in Germany, Austria and Italy. After advising Mr. Cotsworth that no Form 55 would be approved prior to security screening by the RCMP working with the immigration teams sent to Europe, Mr. Jolliffe advised that:

With regard to approved Form 55 serving as application for visa, the object of this is to save what appears to be needless work at the piling up of unnecessary records. Form 55 contains all essential information except particulars of passports and these can be noted in the space for official use on back of the form where visa stamp can also be placed. This should be ample record for visa officer. It is only by an examination the officer can satisfy himself in any event and should visa be refused, he will want a more complete record than that contained on visa application form. In a doubtful case, the examining officer might see fit to have the applicant complete visa application, but it is not considered this should be made in [sic] general rule.⁹³ [Emphasis added.]

The documentary evidence thus discloses that there was an instruction from the Director of Immigration indicating that the only necessary form was a Form 55.⁹⁴ If, contrary to the instruction of Mr. Jolliffe, additional application forms were in use at the time the respondent applied to immigrate to Canada, there remains the question of whether this form would have elicited information about the respondent's wartime activities.

[219]The applicant has admitted that until 1953 immigration application forms did not request particulars regarding wartime military service. An application form in use following August 21, 1950 did request details not specifically of military service but rather of employment for the preceding 10 years. This, on its face, would have covered military service back to 1940.⁹⁵ No such form, however, was shown to be applicable during the period with which we are concerned. Further, a number of application forms in use in the 1940s have survived. The forms which were produced for the relevant period did not require the potential immigrant to provide any information in respect of military service, wartime activities, or occupation for the previous 10 years.⁹⁶ At most, some of these forms required a summary of the prospective immigrant's previous employment; little space on the form was provided for this information.

[220]Both Mr. Martineau and Mr. St. Vincent testified that the file which they recalled having before them included a Canadian application for an immigration visa as well as a Form 55 when the applicant was sponsored. They also testified that the visa application form always contained questions about the applicant's occupation and residence for the past 10 years.⁹⁷

[221]I accept Messrs. Martineau and St. Vincent's testimony as to what their practice was. Nonetheless, no form reflecting their practice at the time with which we are concerned was produced. The forms that were produced for that period required at most a very brief summary of the applicant's employment history. Furthermore, Mr. Jolliffe's instructions make it clear that in 1948, in the context of European immigration, Form 55 was considered to include all the paper information necessary for processing a visa. The evidence does not establish the type of uniform practice which would allow me to conclude that the respondent was required to complete a Canadian form elucidating his occupation over the prior 10 years.

[222]There is also the question of whether the respondent would have been required to set out his 10-year history in IRO documents. Both Messrs. Martineau and St. Vincent testified that the file presented to them contained IRO documents.⁹⁸ Mr. Martineau testified that one of these documents reflected residence and employment information over a 10-year period.⁹⁹

[223]Although no specific submissions were made by the applicant on this point,¹⁰⁰ there is an underlying suggestion that the respondent, assuming that he completed such a form, would have deceived the Canadian immigration authorities in a material way by providing false information on this form. This at minimum would require proof that Canada immigration officials relied on the information contained on this form and that the respondent knew that such a form was being relied upon by the Canadian authorities. In this respect, Mr. Martineau testified that he "practically ignored what was on [the IRO] form". Further, according to the March 30, 1948 RCMP report to the Security Panel, the IRO was infiltrated with communists and could not be relied upon as providing truthful information.¹⁰¹

[224]Thus, on the evidence before me, it has not been demonstrated that the respondent would have completed an application for a Canadian visa which requested information which would have disclosed his wartime activities or that he would have completed an IRO form which would have been relied upon by the security officer reviewing his application.

3. WHAT WERE THE APPLICABLE SECURITY SCREENING CRITERIA IN JULY OF 1948?

[225]Even if the respondent had completed forms reflecting his past employment and had been personally interviewed, it is unlikely that the security criteria applicable in July 1948 would have resulted in the respondent being prohibited from entering Canada.

[226]Mr. d'Ombrain testified that in 1948, collaboration was "a blanket prohibition" being applied by security officers throughout Europe. His affidavit asserts that the security criteria respecting wartime activities remained unaltered until well after July 1948.¹⁰² The essence of his opinion is that in 1948, the notion of "collaborator" had yet to be refined¹⁰³ and that it operated as a general prohibition against anyone who had "collaborated or worked for any branch of the German armed forces including police organizations".¹⁰⁴ In support of this opinion, Mr. d'Ombrain points to the RCMP report submitted on March 30, 1948, which informed the Security Panel that:

D.P.'s bearing the blood grouping tattoo mark of a Mazi [sic] Storm Trooper are rejected on security grounds. Likewise persons from German occupied countries known to have collaborated with the Nazi machine or served voluntarily with the German Forces are rejected.¹⁰⁵

[227]While Mr. d'Ombrain, in his affidavit, treats this passage as a policy statement,¹⁰⁶ it is not presented as such in the report to which he refers. The statement appears under the heading "Notes on Some Cases" and is grouped at the end of the report together with four isolated factual situations which the RCMP records as having been encountered in the field.

[228]Significantly, this is the only contemporary document to which Mr. d'Ombrain refers in his affidavit as evidencing his contention that, as a matter of government policy, collaborators were generally banned from entering Canada in July 1948, when the respondent was granted his right of entry. Mr. d'Ombrain relies on an abundance of documents and, with the exception of the one noted, they all are dated between 1949 and 1959.¹⁰⁷

[229]I pause here to observe that while as a matter of methodology, reliance can be placed on subsequent documents to attest to a prior state of affairs when the situation can be shown to have remained relatively constant, it becomes entirely inappropriate to do so when the situation is in a state of flux and rapid evolution.¹⁰⁸ That was the state of affairs with respect to security screening in 1948 when the annual flow of immigrants from continental Europe surged from 15,590 to 71,976¹⁰⁹ and the RCMP was struggling to comply with Cabinet's direction to maintain security screening without impeding the flow of immigrants.¹¹⁰

[230]The only other document referred to by Mr. d'Ombrain in his affidavit which purports to reflect the screening policy in place in 1948¹¹¹ is a draft memorandum dated September 16, 1949, addressed to Louis Saint-Laurent who had recently become Prime Minister.¹¹² The memorandum explains the policy relating to security screening as it stood before September 16, 1949. Paragraph 3 sets out the objective of the security screening program:

3. The objective of the security screening has been interpreted in the following manner:

"To deny admission to any persons who, from their known history and background, would be unlikely to adapt themselves to the Canadian way of life and to our democratic form of government".

[231]There can be no doubt that this statement, as vague as it was, did reflect the official government policy on the matter of security screening during the mid to late 1940s. This is made clear by the instructions which were given to Staff Sergeant Hinton when he first left for London in late 1946. After being directed to abide by the verbal instructions which he had received at headquarters, he was reminded of the objective of the program in the terms of the above quoted policy statement.¹¹³

[232]The verbal instructions given to Staff Sergeant Hinton and his successors would have included instructions as to which classes of immigrants were to be rejected on security grounds. This was the situation which prevailed in July of 1948 when the respondent obtained his visa. Referring to the fact that the security officers were rejecting prospective immigrants on the basis of verbal instructions, Mr. d'Ombrain testified that the men in the field were working from something that was neither "concrete" or "agreed".¹¹⁴

[233]Around the middle of 1948, a decision was taken to change the system and produce a written list of the applicable security screening criteria. By letter dated July 7, 1948, Major Wright, who at the time oversaw the security screening operation in Europe, was asked by Supt. McClellan, the officer in charge of Special Branch, to prepare a list of "the causes on which our men presently reject applicants." [Emphasis added.] The letter concluded: "It is vital that the causes of rejection be set down as clearly as possible".¹¹⁵ [Emphasis added.] Needless to say, this was a ground up review of the policy being applied in the field. On the evidence, this demonstrates that the RCMP could not identify with precision the screening criteria which were being applied by its men in July 1948.¹¹⁶

[234]Before Major Wright completed his task, Supt. McClellan wrote him again on July 26, 1948, to alert him to the fact that security officers were rejecting applicants on the ground of enemy nationality. Major Wright was advised that rejection on this ground properly belonged to visa officers. Accordingly, Major Wright was instructed as follows:

We will clear the individual for security provided there are no other grounds for rejection such as known Communist, criminal, collaborator, etc. The matter of whether or not he or she should be accepted on a straight nationality basis should then be left to the visa officer.¹¹⁷ [Emphasis added.]

[235]This letter is important for two reasons. First, it confirms that collaborators were amongst the classes of undesirables in July of 1948 and it also establishes that Major Wright was aware of this at the time he was working towards the completion of his list.

[236]By letter dated August 11, 1948, Major Wright submitted his list to the Commissioner of the RCMP. The introductory paragraph reads as follows under the reference "Visa Control-Policy":

Further to my report of the 20th ulto., I have now received a report from Sgt. Norfolk on the subject,¹¹⁸ and the matter has also been discussed with Sgt. Syron, who is now in London. As a result thereof, and after considering the matter carefully , I beg to quote hereunder consolidated list showing the causes for which our men presently reject applicants either in the London office, in Germany or elsewhere. [Emphasis added.]

The "Reasons for Rejection" are then listed:

[traduction]

(a)    COMMUNIST. Known Communist. Suspected Communist. Communist Agitator or Suspected Communist Agent.

(b)    Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (Non Germans),

(c)    Member of Nazi Party.

(d)    Criminal (known or suspected). Gambler.

(e)    Prostitute.

(f)    Black Market Racketeer.

(g)    Evasive and untruthful under interrogation.

(h)    Failure to produce necessary documents as to time of entry and residence in Germany. These documents are familiar to all screening officers.

(i)    False Presentation;-use of false or fictitious name.

(j)    After careful interrogation and deliberation is considered not a fit and proper person to be granted entry into Canada. This covering evidence received (in Germany) to the effect that Applicant was disincline [sic] or unwilling to work, and generally lazy.119

I pause here to stress that, based on the evidence, the causes listed by Major Wright would have been gathered from inquiries in the field and interviews with security officers acting at the location where the respondent would have been screened during the precise period when he would have been screened.¹²⁰ Hence the importance of this list which, by coincidence, purports to reflect the state of affairs precisely as it stood in July of 1948.

[237]What is striking about this list, for our purposes, is that no blanket prohibition is set out for collaborators. There are, however, specific instances of collaboration that give rise to prohibitions; those coming under category (b): "Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (non-German)," are prohibited from entry as well as members of the Nazi party.¹²¹ Mr. d'Ombrain agreed that the persons so described were "collaborators" as the term was understood at the time.¹²²

[238]Before commenting further on Major Wright's list, I believe that it is useful to consider how the list was received by his superiors at headquarters. By letter dated September 23, 1948,¹²³ the officer in charge of Special Branch acknowledged receipt of the list and asked Major Wright to think about "this whole question with a view to having the proposed list suitably implemented." He then indicated that "we agree with the special classes as laid down"¹²⁴ and suggested that "some thought could be given to widening the scope of the proposed list" by reference to an "additional class of undesirable immigrants" described as "collaborators presently residing in previously occupied territory." It was pointed out that "this type of person is definitely undesirable and we feel should be included." After suggesting the addition of "Trotskyites" and "members of the Italian Fascist Party" as further prohibited classes, the letter concludes by suggesting that Major Wright should review his list with a view to adding to it these other causes for rejection.

[239]The eventual list of security criteria resulting from this process is dated November 20, 1948¹²⁵ and reflects the three additional causes for rejection which were communicated to Major Wright and omits category (j) of Major Wright's list which was thought to be the responsibility of immigration officers. For the same reason, paragraphs (d), (e) and (f) were also eventually removed from the November 20, 1948 list.¹²⁶ Otherwise, Major Wright's list was left untouched.¹²⁷ In so far as the prohibitions relating to collaborators are concerned, paragraphs (b) and (c) remained unchanged,¹²⁸ and paragraph (k) of the November 20, 1948 list prescribed as a further ground for rejection "collaborators presently residing in previously occupied territory".

[240]Mr. d'Ombrain, in his affidavit, does not discuss or even mention Major Wright's list. This is most surprising given that, as I have mentioned, the document purports to set out the security criteria which were applicable in the field at the precise time when the respondent obtained his visa. Counsel for the applicant explained during argument that Mr. d'Ombrain's decision not to refer to this document is attributable to the fact that Major Wright's list is so glaringly deficient as not to be worth mentioning.¹²⁹

[241]The applicant's position is that at the time Major Wright's list was compiled, collaboration was a blanket prohibition. The theory of the applicant is that Major Wright made a blatant error in failing to identify "collaborators" as a general ground for rejection and that this error was quickly rectified by the addition of paragraph (k): "Collaborators presently residing in previously occupied territory". The qualifying words in this paragraph are said to be futile verbiage without meaning. What this paragraph was intended to reflect, according to the applicant, is a general prohibition aimed at "collaborators".

[242]Consistent with this, Mr. d'Ombrain notes in his affidavit that the "impenetrable" words "residing in previously occupied territory" were removed 10 years later so that the prohibition then read "collaborators" without more.¹³⁰ The gist of the applicant's position is that this was the intent from the beginning and that Major Wright had an inexplicable lapse when he failed to reflect this in his list.

[243]In Canada (Minister of Citizenship and Immigration) v. Vitols,¹³¹ Mr. d'Ombrain is reported as having expressed essentially the same view:

Mr. d'Ombrain, in cross-examination at p. 671 of the transcript, discussed category (k) in particular. He stated that the category's meaning was completely unclear to him. He agreed that it did not seem to include a displaced person in Germany, because Germany could not be called a previously occupied territory. Mr. d'Ombrain stated that he felt that the phrase was an example of the very imprecise language used by the RCMP to say something very simple: collaborators were not allowed to come into Canada.

[244]I do not believe that Major Wright's list, which was confected after the reception of a report and discussions on the matter over time and to which "careful" consideration was said to have been given, can be so easily discarded.

[245]It is important to note that the Cabinet decision of February 5, 1947 which according to Mr. d'Ombrain was to govern the security screening policy for the entire period under review,¹³² was the result of a very focussed recommendation by the Security Panel. The Security Panel had made the following recommendation:

In respect to the general principle of screening, the Panel desire to reaffirm its importance and to point out the substantial dangers involved in permitting immigrants to enter without investigation. This is particularly true of persons coming from countries within the Soviet sphere of influence where evidence suggests that emigration can only take place with the permission of the government concerned and there seems little doubt that in any movement of persons, a proportion will be included from these areas who will be instructed to pursue the aims of their government upon taking up residence in Canada. Accordingly the Security Panel recommend against the abandonment of security screening as a highly dangerous course.¹³³ [Emphasis added.]

[246]What this recommendation highlights is that it was the fear of Soviet infiltration which was foremost in the minds of those who saw the need to preserve the security screening system. This concern about the Soviets which had been ever present since the Gouzenko affair, increased dramatically as the Cold War heightened. In May of 1948, two months before the respondent was granted his visa, the Commissioner of the RCMP wrote in response to allegations that his men were not being sufficiently vigilant with respect to communists that:

I may say that this [the detection of communists] is our primary interest at the moment and all members of our security details are fully aware of this fact.¹³⁴ [Emphasis added.]

[247]Although Mr. d'Ombrain makes no mention of this in his affidavit, there is also an indication in the documentary evidence that on March 5, 1947, Cabinet made a further decision to specifically prohibit the entry of communists into Canada. This information is contained in the draft memorandum to Prime Minister Saint Laurent alluded to earlier, which sought to inform him of the situation which prevailed before 1949. This memorandum set out for the Prime Minister the categories of persons considered inadmissible on security grounds:

(a)    Communist, known or strongly suspected. Communist agitator or suspected Communist Agent.

(b)    Member of SS or German Wehrmacht. Found to bear mark of SS Blood Group (Non Germans).

(c)    Member of Nazi Party.

(d)    Evasive and untruthful under interrogation.

(e)    Failure to produce recognizable and acceptable documents as to time of entry and residence in Germany.

(f)    False presentation; use of false or fictitious name.

(g)    Collaborators presently residing in previously occupied territory.

(h)    Member of the Italian Fascist Party or of the Mafia.

(i)    Trotskyite or member of other revolutionary organization.

There followed the caveat that:

The only class covered by a precise Cabinet direction is that of Communist. On March 5, 1947, it was agreed that where, as a result of a security investigation, it was demonstrated that a prospective immigrant was a Communist, admission should be refused by the Immigration Branch without reason assigned for such action. [Emphasis added.]

The paragraph concluded that:

From the records it is apparent that a good deal of discussion took place on the question of whether the Immigration Act should be amended to exclude certain undesirable classes such as Nazis, Fascists and war criminals, or whether the problem should be dealt with by administrative means. The decisions taken were in favour of the latter course.¹³⁵

[248]There was therefore a Cabinet direction prohibiting the entry of communists which was issued on March 5, 1947. Neither the direction nor any of the documents which would have been connected with it have been produced by the applicant presumably because, as is the case for numerous other missing documents, they were destroyed under authorized government destruction programs.

[249]Nevertheless, we are at least in a position to know that in March of 1947, Cabinet's preoccupation with communists as a security threat was such that a direction specifically prohibiting their entry was considered advisable. It must also be assumed that this direction was communicated to those whose task it was to implement it, namely the security officers operating in Europe. It is also apparent that the Cabinet was content to deal with the other classes of undesirables without such a direction and that the security officers would have been aware of this.

[250]Mr. d'Ombrain makes no reference to this Cabinet decision in his affidavit, yet it was referred to in one of the documents which Mr. d'Ombrain reviewed extensively.¹³⁶ This particular Cabinet direction intended to counter the most pressing security threat known to exist at the time cannot possibly have been looked upon as a mundane matter devoid of importance.

[251]It will be recalled that the applicant's position was that Major Wright's list was fundamentally flawed in that it failed to refer to collaborators generally and that the subsequent addition of paragraph (k) "collaborators presently residing in previously occupied territory" was intended to remedy that flaw. The words beyond "collaborators" in that phrase were said to be superfluous and the intent, according to Mr. d'Ombrain, was to prohibit collaborators generally from entering Canada. The attack against Major Wright's list therefore hinges entirely on paragraph (k) being aimed at collaborators generally.

[252]As Mr. d'Ombrain was compelled to recognize during cross-examination, the phrase "collaborators presently residing in previously occupied territory" is not devoid of any rational meaning. Mr. d'Ombrain, after having acknowledged that in 1948 communism was a matter of high concern and that the Soviets were known to resort to blackmail to enlist agents, was asked if collaborators who resided in previously occupied territory in 1948 were particularly vulnerable to blackmail. Mr. d'Ombrain was compelled to acknowledge that this was the case and that this was indeed an explanation for the phrase to which he could otherwise attribute no sense. The relevant passages from the cross-examination read as follows:

Given your background and your knowledge of security areas generally and your study of this security issue, we can agree, first of all, can we, that Canadian security forces were vigilant to prevent potential spies from coming into Canada?

A. Yes.

Q. And . . . that . . . security forces typically are on the alert for persons who are susceptible to blackmail?

A. Yes, definitely.

Q. And in the post-World War II era this was particularly true . . . the security forces were alert to that possibility and saw those people as potential targets for coercion by the Soviets?

A. Yes, undoubtedly.

Q. And we agree that if a person was a collaborator, somebody who had collaborated with the Germans at a high level or in a secret way during the war and after the war was living in a previously occupied territory, that is an Iron Curtain country, or Belgium, or France, Holland, and if they were collaborators but the fact that they were collaborators was not generally known, that that would be creating a weakness which could be exploited by the Soviets?

A. That certainly would be one sort of collaboration that would be of concern to the security authorities.

    . . .

So that for that particular category of former collaborators who were still living in the previously occupied territory, western Europe or eastern Europe, the security service would not want to have them coming into Canada if they had a choice because they were potential targets of the Soviet coercion?

A. That is correct.¹³⁷

Mr. d'Ombrain therefore recognized that the words in question, which he had considered "impenetrable" until then, have a meaning that is rational and indeed eminently understandable in the context of 1948. Properly understood, this prohibition was a focussed criterion directed primarily towards warding off Soviet infiltration. These words were obviously time and site sensitive¹³⁸ with the result that they would have lost their meaning over the years. It is therefore not surprising to find that they gradually came to be ignored and were removed altogether in 1958. However, when these words were first inserted, they had meaning.

[253]Looking at the matter from another perspective, the manner in which Major Wright's list was received by headquarters does not support the suggestion that it was glaringly deficient. If it had been clear to everyone that there was a blanket prohibition for collaborators as the applicant contends, one would expect the reaction to Major Wright's list to somehow reflect this. But according to the evidence, Major Wright's list was positively received. He was directed to take steps towards its implementation including paragraphs (b) and (c) thereof which, as we have seen, dealt with collaborators albeit in a very narrow way.

[254]These narrow prohibitions relating to collaborators which Major Wright reported as being applied in the field in July of 1948 cannot be attributed to the fact that he did not know that "collaborators" like "communists" and "criminals" were amongst the prohibited classes. As we have seen, a short time before releasing his list, Major Wright was in receipt of instructions reminding him of these classes of undesirables. What Major Wright's list strongly suggests is that in July of 1948, the application of the prohibition relating to collaborators was being directed to those who had collaborated in the manner contemplated by paragraphs (b) and (c). As of November 20, 1948, that is after the respondent would have been screened, particular attention was also paid to "collaborators presently residing in previously occupied territory" as the addition to Major Wright's list indicates.

[255]In this respect, I find that this was a new criterion and not a reflection of a ground for rejection which was being applied in July of 1948. While the response to Major Wright's list could be viewed as indicating that this was a current concern at headquarters, the evidence from the men in the field is that it had yet to be applied in July of 1948. Furthermore, the tone of the letter strongly suggests that this addition was prospective.¹³⁹

[256]These narrow exclusions of collaborators are not surprising in the context of 1948. At that time, the RCMP was under pressure not to impede the flow of immigrants into Canada. The Cabinet decision of February 1947 had been triggered by the fact that "the procedure [for security screening] . . . had proved incapable of dealing with the number of applicants for admission which had been received"¹⁴⁰ and that "a continuation of present procedures would retard immigration to an extent that would nullify the purpose of the amended regulations."¹⁴¹ Despite these problems, the classes of admissible immigrants had been broadened while the RCMP bore the brunt of maintaining the practice of security screening without impeding the flow of immigrants.

[257]"Collaboration" was a notion that was undefined in 1948¹⁴² and on that meaning all applicants from previously occupied territories in Europe were susceptible of having assisted the enemy in one way or another. Keeping this in mind, it is unlikely that had a blanket prohibition against collaboration been applied in 1948, 70,000 immigrants would have sailed to Canada from continental Europe in that year.

[258]Throughout the late 1940s, communists were first and foremost on the list of criteria being produced. Cabinet felt the need for a direction prohibiting the entry of communists into Canada while the security officers were left without such a direction with respect to the other classes of undesirables. The Commissioner of the RCMP is on record as asserting that communist infiltration was the prime evil which his men were guarding against in 1948. It is not surprising in that context to find in a memorandum dated April 30, 1952 to the Security Panel which reports that:

Present immigration security policy prohibits the immigration of collaborators, but cases have so far been dealt with on their individual merits or demerits.¹⁴³

[259]While there was an absolute prohibition barring the entry of communists throughout the relevant period, this has not been shown to be the case with respect to the class of undesirables described as collaborators in 1948. Major Wright's list does not reflect the general prohibition which Mr. d'Ombrain contends was in place. Although attempts were made to discredit this list, I was provided with no basis upon which I could disregard it. I find, on the evidence as a whole, that it is at least likely that in July of 1948, collaborators were excluded only to the extent reported by Major Wright at the time.

[260]I therefore come to the conclusion that in July 1948, security officers were not applying a blanket prohibition for collaborators or preventing collaborators generally from entering Canada and that the respondent did not come within the class of collaborators who were at that time being barred from entering Canada.

4. WAS THERE LEGAL AUTHORITY FOR SECURITY SCREENING OF IMMIGRANTS IN JULY OF 1948?

[261]Finally, and irrespective of my prior conclusions, I do not believe that in July of 1948, security officers had the legal authority to reject the respondent on the ground that he had collaborated with the enemy during WWII.

[262]As the applicant recognizes in her written argument, "[i]t is clear that the historical records indicate that the Cabinet considered security matters of the uppermost concern but did not want the security process to be made public".¹⁴⁴ Not only was the actual process secret but the fact that such a process was in place was also a closely guarded secret. This, according to Mr. d'Ombrain, was behind Cabinet's decision to deal with security screening otherwise than by legislation in 1946. This decision was referred to in a letter from the Security Panel to the Minister of Mines and Resources in the following terms:

The Security Panel at their meeting on August 19th, 1946, reviewed the question of the security screening of prospective immigrants in the light of the Cabinet's recent decision that this should be dealt with by departmental administrative action rather than by legislation.¹⁴⁵

[263]The decision in question was made on August 5, 1946 and is recorded as follows:

3. The Minister of Mines and Resources enquired whether the proposed bill to amend the Immigration Act should contain an additional classification of prohibited persons, covering members of the Nazi party, Fascist party, war criminals and similar groups.

Consideration had been given to the possibility of inserting some general principle to cover all such groups but in view of difficulty in drafting a suitable clause, it was proposed not to include any special prohibition of this sort. The problem could be dealt with by other means.¹⁴⁶

The background to the issue as it was presented to Cabinet at that time is outlined in a memo dated July 24, 1946.¹⁴⁷ It reads in part:

A sub-committee of the Security Panel was appointed on July 8 to suggest and phrase, for the benefit of the Minister of Mines and Resources, a clause for inclusion in the new Immigration Regulations now being drafted, to permit the refusal, on security grounds, of persons wishing to enter Canada.

After considerable discussion, it was decided to submit to Immigration and the Department of Justice alternative proposed amendments (copies attached) to the Immigration Act. These proposed amendments were shown to Mr. Robertson and Mr. Heeney before they left, and they both doubted the propriety of proposing an amendment, which gave the Minister of Mines and Resources power to certify that a person should be refused entry to Canada on the grounds that he was a Nazi or a Fascist or a person who held beliefs subversive to democratic government. Subsequently I conveyed these views informally to Mr. Jolliffe and to the R.C.M.P., and Mr. Jolliffe then discussed the matter with his Minister.

The Minister of Mines and Resources has now decided to put forward a different amendment to those originally suggested by the sub-committee of the Panel. This will take the form of an additional sub-section of Section 3 of the Immigration Act, which enumerates the prohibited classes, and will read as follows:

"Persons who are, or at any time have been, members of the Nazi Party or of the Fascist Party or of the Gestapo or of the Schutzstaffel or of the Sturm Abteilung or of any organization or party auxiliary to or supporting Nazism or Fascism or persons classified as war criminals by the United Nations War Crimes Commission."

    . . .

Even should the amendment be passed, it does not give authority to institute an adequate form of visa control abroad, and it has been suggested in the Panel that a submission will probably have to go to Cabinet suggesting that visas should be refused to persons on security grounds and that Immigration should carry out such refusal by administrative action until the Panel has had a further opportunity of examining the ways and means of dealing with the problem as a whole.

[264]It is further to the Cabinet's decision to deal with the matter of security screening through "other means"¹⁴⁸ that Staff Sergeant Hinton was sent to London in October of 1946 to initiate the screening process abroad. In a letter designated as "secret", the Commissioner of the RCMP provided Staff Sergeant Hinton with "Orders for Personnel Employed Abroad on Visa Control Duties". With respect to the security criteria to be applied, Staff Sergeant Hinton was directed as follows:

11. In deciding what factors render a potential immigrant undesirable you will be guided by the verbal instructions given at this headquarters. You will also pay attention to any additional information you may be able to secure from your U.K. contacts as to the background and status of any organizations which have not been specifically dealt with or with which you may not be acquainted.¹⁴⁹ [Emphasis added.]

This mode of operation applied to Staff Sergeant Hinton and his successors until November of 1948. It highlights, of course, the secrecy which surrounded the security screening criteria and the means taken by the RCMP to prevent this information from falling into the wrong hands.

[265]While security officers were rejecting prospective immigrants for security reasons on the basis of verbal instructions, immigration officers were acting on the basis of the Immigration Act¹⁵⁰ which continued to reflect specific grounds for rejection. Section 3 of this Act read in part:

3. No immigrant, passenger or other person, unless he is a Canadian citizen, or has Canadian domicile, shall be permitted to enter or land in Canada, or in case of having landed in or entered Canada shall be permitted to remain therein, who belongs to any of the following classes, hereinafter called "prohibited classes":"

    . . .

(d) Persons who have been convicted of, or admit having committed, any crime involving moral turpitude;

    . . .

(i) Persons who do not fulfill, meet or comply with the conditions and requirements of any regulation which for the time being are in force and applicable to such persons under this Act;

    . . .

(p) Enemy aliens or persons who have been alien enemies and who were or may be interned on or after the eleventh day of November, one thousand nine hundred and eighteen, in any part of His Majesty's dominions or by any of His Majesty's allies;

(q) Persons guilty of espionage with respect to His Majesty or any of His Majesty's allies;

(r) Persons who have been found guilty of high treason or treason or of conspiring against His Majesty, or of assisting His Majesty's enemies in time of war, or of any similar offence against any of His Majesty's allies.

[266]Section 38 of the Immigration Act also gave the Governor in Council wide discretion to prohibit or limit the entry into Canada of immigrants by proclamation or by order in council:

38. The Governor in Council may, by proclamation or order whenever he deems it necessary or expedient,

    . . .

(c) prohibit or limit in number for a stated period or permanently the landing in Canada, or the landing at any specified port or ports of entry in Canada, of immigrants belonging to any nationality or race or of immigrants of any specified class or occupation, by reason of any economic, industrial or other condition temporarily existing in Canada or because such immigrants are deemed unsuitable having regard to the climatic, industrial, social, educational, labour or other conditions or requirements of Canada or because such immigrants are deemed undesirable owing to their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry.

[267]There were four such orders in council in force in the summer of 1948. P.C. 4849,¹⁵¹ enacted December 6, 1947, revoked and consolidated the former Order in Council P.C. 1931-695, and provided, in part, as follows:

His Excellency in Council . . . pursuant to the provisions of Section 38 of the Immigration Act, Chapter 93, R.S.C. 1927, is pleased to make the following Order and it is hereby made and established in substitution for the regulations hereby revoked:

    ORDER

From and after the date hereof and until such time as otherwise ordered the landing in Canada of immigrants and of all classes and occupations, is prohibited, except as hereinafter provided:

The Immigration Officer-in-Charge may permit any immigrant who otherwise complies with the provisions of the Immigration Act to land in Canada, if it is shown to the satisfaction of such Officer-in-Charge that such immigrant is:

    . . .

4.     (a)    An agriculturist having sufficient means to farm in Canada.

(b)    An agriculturist entering Canada to farm with or with the assistance of his father, father-in-law, son, son-in-law, brother, brother-in-law, uncle or nephew engaged in agriculture as his principle [sic] occupation and who is in a position and willing to receive such immigrant and establish him on a farm.

(c)    A farm labourer entering Canada to engage in assured farm employment.

(d)    A person experienced in mining, lumbering or logging entering Canada to engage in assured employment in any one of such industries.

P.C. 4850¹⁵² enacted November 26, 1947, provided as follows:

His Excellency in Council, on the same recommendation and pursuant to the provisions of Section 38 of the Immigration Act, Chapter 93, Revised Statutes of Canada 1927, is pleased to order and doth hereby order as follows:

From and after the date hereof, and until such time as otherwise ordered, the entry to or landing in Canada of enemy aliens is prohibited.

Provided that this Order shall not be held to exclude persons coming within the above defined class who satisfy the Minister of Mines and Resources that they were opposed to an enemy government;

Provided further that this Order shall not be held to exclude the nationals of Finland, Hungary, Italy and Roumania with whose countries peace treaties have been ratified by Canada.

P.C. 4851¹⁵³ enacted November 26, 1947, provided, in part, as follows:

His Excellency in Council, on the same recommendation and pursuant to the provisions of Section 37 of the Immigration Act, Chapter 93, Revised Statutes of Canada 1927, is pleased to make the following regulation and it is hereby made and established in substitution for the regulations hereby revoked:

From and after the date hereof every person seeking to enter or land in Canada, shall be in possession of an unexpired passport issued by the country of which such person is a subject or citizen:

Provided:

    . . .

2.    That the passport of every alien sailing directly or indirectly from Europe shall carry the visa of a Canadian Immigration Officer stationed in Europe;

    . . .

4.    That a travel document establishing the identity of the holder may be accepted in lieu of a passport in the case of an immigrant who has been displaced from his country of origin as the result of the war and who is not in possession of a valid passport.

Finally, P.C. 2180, enacted June 6, 1947, as amended by a number of other orders in council, including P.C. 1628, enacted April 23, 1948, provided that authority be granted for the immediate admission to Canada of 30,000 displaced persons from Europe.

[268]Immigration officers had the responsibility of applying these orders and the prohibitions from entry arising thereunder as well as those arising under the Immigration Act. Security officers were responsible for security screening and the rejection of prospective immigrants on security grounds. Not surprisingly, conflicts developed within the teams operating in Europe with respect to jurisdiction. The fact that security officers were relying on verbal instructions only served to complicate matters.

[269]On July 22, 1948, the Assistant Commissioner of the RCMP, L. H. Nicholson, made reference to one growing area of contention:

This point came up whilst I was in Germany. Rejections on grounds of enemy nationality are made by virtue of a Cabinet directive and I do not think that this should be considered "rejection on security grounds"-rather it should be left to the Immigration Officer.

If our man rejects on account of enemy nationality on security grounds, there is no appeal. If the Visa Officer rejects, there is an appeal.

Furthermore, there are special cases where the nationality clause is waived and the Visa Officer instructed accordingly. There have been instances where even after this is done our man still rejects.

I think the position must be that in these cases we clear the individuals for security provided there are no other grounds for rejection, such as known Communist, criminal, collaborator, etc. The matter of whether or not he should be accepted on straight nationality basis should then be left to the Visa Officer.¹⁵⁴

[270]Four days later, Major Wright who at the time oversaw the security screening operations in Europe, was advised of the problem. The statement was made that "[i]f our man rejects on account of enemy nationality on security grounds, there is no appeal. If the Visa Officer rejects there is an appeal". Major Wright was then instructed as follows:

It is felt here, therefore, that the following policy should be adopted. We will clear the individual for security provided there are no other grounds for rejection such as known Communist, criminal, collaborator, etc. The matter of whether or not he or she should be accepted on a straight nationality basis should then be left to the Visa Officer.¹⁵⁵

[271]The reference to there being no appeal when the security officer rejects on security grounds is explained in a report by the RCMP which was conveyed to the Security Panel on March 30, 1948. On page 4 of the report, it is stated:

Acceptance or rejection by the security investigator is final: Applications to appeal from rejection have been turned down on the grounds that such a procedure is impracticable.¹⁵⁶

That the grant of a right of appeal was considered as "impracticable" is again likely attributable to the secrecy which surrounded both the existence and the security screening process and the rejection criteria being applied. Although the Immigration Act provided for an appeal,¹⁵⁷ granting this right with respect to rejections on security grounds would have jeopardized the secrecy of the program.

[272]Obviously aware of the growing areas of conflict between immigration officers and the security officers who were part of the screening teams operating in Europe, the Commissioner of the RCMP wrote Mr. Jolliffe, the Director of Immigration, as follows on July 3, 1948:

1. It has come to my attention that there has never been a clear definition of the duties and responsibilities of our men in Germany and Austria, neither have we discussed with your branch certain administrative aspects which you may be interested in. I have in mind the Cabinet Directive dated Aug. 14, 1947, which places a responsibility on the head of the Mission. There is also the need for avoiding any misunderstanding which might lead to friction.

2. As you know we have recently taken steps to improve and strengthen this detail and now is an opportune time to correct any weakness in our method of control or our administrative arrangements.

3. I suggest that something in the nature of an Administrative Order might be drawn up, signed by representatives of both our Services, and go forward for the use and guidance of personnel concerned. Assuming that you might agree with the need for such an Order and as a basis for further discussion, I set down in appendix attached hereto certain points which I consider might be included therein.¹⁵⁸

[273]Attached to this letter was a draft memorandum of understanding which was signed by Mr. Jolliffe on behalf of the Department of Mines and Resources and by the Commissioner of the RCMP on July 12, 1948. Of particular significance for our purposes is paragraph (h):¹⁵⁹

(h)    R.C.M. Police are solely responsible for accepting or rejecting, on security grounds, the applicants for entry to Canada examined by them. They will not report grounds for rejection to other than their own superior officers within the Force but will simply mark applications in the agreed manner to indicate either acceptance or rejection. [Emphasis added.]

[274]The reference to the notation in the "agreed manner" to indicate either acceptance or rejection was forward looking. On the date of the memorandum, no written list of security criteria had been compiled and hence there was no means of marking the applications in the "the agreed manner." What this anticipates was the compilation of a list of security criteria which Major Wright had been asked to complete around June of 1948. Sometime after this list was completed it was agreed, in February of 1949, that the security officer would inscribe on the forms the paragraph reflecting the applicable rejection criteria according to this list. This would allow those aware of the consolidated list to know the precise ground for rejection without the applicant or anyone else being able to identify it.¹⁶⁰

[275]The fear of communist infiltration was at the heart of the preoccupation for secrecy which characterized the development of the security screening process during the mid to late 1940s. The Security Panel, during the time when it was framing the security screening policy for prospective immigrants, was also engaged in a massive review of government structures and operations with the view of identifying departments which were vulnerable to communist infiltration. Its prime responsibility was the development of appropriate counter-measures with the assistance of the RCMP and friendly foreign intelligence services.¹⁶¹

[276]The atmosphere which prevailed at the time was described by Mr. d'Ombrain in his affidavit:

. . . the Security Panel was established at a time of considerable anxiety in Ottawa about threats to national security occasioned by the disclosures flowing from the Gouzenko spy affair that introduced Canada to the cold war. This atmosphere of fear was to intensify throughout the period under review as the Iron Curtain descended on Eastern Europe, Soviet spy scandals erupted in the United States, the cold war heated up over Berlin Blockade, and the Allies found themselves at war once more in Korea.¹⁶²

[277]It can be seen that the concern for secrecy had a determinative impact on the framing and development of the security screening program of prospective immigrants. As of July 1948, the security criteria being applied were based on verbal instruction, the security officers answered to no one but the RCMP, the right of appeal was being denied and the modus operandi was such that there was no means of communicating to anyone, including the Minister responsible for immigration, the grounds for which prospective immigrants were being rejected on security grounds.

[278]This preoccupation for secrecy also had an impact on the overall structure of the program. Rejecting prospective immigrants, whether for security or any other reason was ultimately a matter which concerned the Minister responsible for immigration. It is the need for secrecy which explains why the policy for the rejection of prospective immigrants on security grounds was developed on a separate track and more importantly, why the authority for this process was not to be found in the legislation but through "other means".¹⁶³

[279]In support of the argument that there was legal authority for the rejection of prospective immigrants on security grounds in July of 1948, the applicant quoted Order in Council P.C. 1947-2180 which allowed for the admission of DPs. Specific reference was made to the following paragraph:

That the Minister of Mines and Resources be directed to make provisions through the Immigration Branch and through the utilization of whatever assistance may be required and may be made available to him by the Minister of Labour, for the selection and transportation to Canada of the five thousand displaced persons aforesaid; [Emphasis added by applicant.]

[280]The applicant's precise contention is set out at paragraph 486 of her final submission:

It is the Applicant's submission that P.C. 2180 contains authority for the Minister of Mines and Resources to make provisions through the Immigration Branch for the selection of displaced persons. This empowered the Minister to impose criteria for the selection of these immigrants through administrative action. Medical examination, security screening by the Visa Control Officer and the interview with the Immigration Officer who issued the visa were all part of the process of "selection" of the displaced persons whose admission to Canada was authorized by P.C. 2180. The authority for the enactment of P.C. 2180 is found in paragraph 38(c) of the Immigration Act , (R.S.C. 1927) which empowers the Governor in Council to "prohibit or limit in number for a stated period or permanently the landing in Canada [. . .] because such immigrants are deemed unsuitable having regard to the climatic, industrial, social, educational, labour or other conditions or requirements of Canada."

[281]I do not believe that P.C. 1947-2180 can be looked upon as providing the authority under which security screening was being conducted in July of 1948. First, security screening was a measure of general application which was not restricted to immigrants coming in under P.C. 1947-2180.¹⁶⁴ Second, when the Governor in Council desired to exclude a specific class of undesirables in 1948, it did so in express and unambiguous terms.¹⁶⁵ Third, the question as to the existence of authority under which security screening was being conducted was a matter of concern from the very beginning of the security screening program to 1950.¹⁶⁶ At no time was it suggested that P.C. 1947-2180, or any other order in council in force during that period provided the required authority.

[282]The first Cabinet decision on the subject is referred to in a memorandum from Mr. Heeney to Mr. Robertson dated September 20, 1946. In it, Mr. Heeney reports on the situation as it unfolded between October 25, 1945 and the date of his report:

Re: Landing of refugees

Your papers on this subject are returned herewith. The record is as follows:

1. On October 25th, [1945] Cabinet approved a memorandum of the Minister of Mines and Resources (previously the subject of study and recommendation by a special Cabinet committee), the effect of which was to recommend the passing of an Order in Council in the terms of a draft submission attached. This memorandum was Cabinet Document 93 of October 15th, 1945.

2. The approved memorandum contained a stipulation regarding "R.C.M. Police vetting" in these terms-"appropriate action (to) be taken to provide authority for the permanent admission to Canada of the refugees described in this memorandum, subject to the proviso that only those granted a clearance from the Royal Canadian Mounted Police be eligible for a landing within the meaning of the Immigration Act , those not qualified for such clearance to continue under their present status until their cases can be finally disposed of".

3. The following day, an Order in Council (P.C. 6687, October 26th, 1945) was passed in the terms of the draft submission recommended by the Minister. The Order provides that the Immigration Officer in charge at a port of entry "may grant a landing in Canada to any refugee who entered Canada as such under non-immigrant status subsequent to September 1st, 1939, provided the said refugee establishes to the satisfaction of the Immigration Officer in charge that he is of good character and can comply with the provisions of the Immigration Act in all other respects."

4. You will observe that the Order in Council, which, of course, embodies the only "law" on the subject, makes no reference to security vetting. At the same time, it is quite clear that the Cabinet, having approved the Minister's supporting memorandum, intended that "landings" should only be granted by the officials concerned to those who had been cleared by the R.C.M. Police.

5. In my opinion, therefore, clearance by the R.C.M. Police was an administrative and not a legal requirement for the issue of landing documents to persons coming within the terms of the Order in Council.¹⁶⁷

[283]As Order in Council P.C. 1945-6687 was the only "law" on the matter, Mr. Heeney concludes that security clearance must be viewed as an administrative rather than a legal requirement. It is clear from his conclusion that, irrespective of the view which one may want to place on the matter today, Mr. Heeney did not consider the Order in Council in question as providing the required authority for security screening. This conclusion seemed inevitable given that Cabinet on August 5, 1946 had decided that security screening would proceed on the basis of "administrative" action rather than by regulation or legislation and that P.C. 1945-6687 failed to make any reference to security screening.

[284]In a memorandum from the Security Panel which led to the decision of February 5, 1947, Cabinet was again reminded of the situation:

The Cabinet on January 29th [1947] approved a recommendation submitted by the Minister of Mines and Resources to amend the immigration regulations so as to permit additional classes of immigrants, and, in view of the substantial increase in applications expected therefrom, directed the Security Panel to re-examine and report upon the security screening problem involved.

In August last the Cabinet decided that the screening of prospective immigrants should be dealt with by departmental administrative action rather than by legislation. As screening could only be done effectively at the source, a procedure was adopted whereby all applications for the admission of alien immigrants were referred to the R.C.M. Police who despatched officers to the United Kingdom to screen applications with the co-operation of the responsible agencies of the United Kingdom and United States.¹⁶⁸ [Emphasis added.]

[285]Two and a half years later, during a Cabinet meeting held in August of 1949, Prime Minister Saint-Laurent again raised the question of whether there was any authority for rejecting prospective immigrants on security grounds. In a draft memorandum marked secret, addressed to the Prime Minister,¹⁶⁹ N. A. Robertson, the Secretary to the Cabinet and Chairman of the Security Panel, advised that over time security screening had been approved by Cabinet and provided a brief history of the matter. On the specific question of where the authority lay, the memorandum states:

From time to time the security problems attendant upon increased immigration have been considered by the Cabinet Committee on Immigration or the Cabinet. From the records it is apparent that a good deal of discussion took place on the question of whether the Immigration Act should be amended to exclude certain undesirable classes such as Nazis, Fascists and war criminals, or whether the problem should be dealt with the [sic] administrative means. The decisions taken were in favour of the later course. [Emphasis added.]

[286]Again, although Mr. Robertson had been specifically asked by the Prime Minister to report on the authority under which prospective immigrants were being rejected on security grounds, he did not refer to any of the orders in council in place at the time as providing the required authority. He, as Mr. Heeney had done in 1946, confirms that the matter was dealt with by "administrative means".

[287]As Mr. d'Ombrain notes in his affidavit, Cabinet decisions determine government policy. The decisions made by Cabinet of August 5, 1946 and February 5, 1947 did set the government policy with respect to security screening and clearly were to the effect that prospective immigrants not be admitted unless they had been screened by the RCMP in accordance with the applicable security criteria. But Cabinet decisions once taken must be made legally effective in one way or another. In the words of Mr. d'Ombrain, they must find formal or legal expression either through a statute or through the Governor in Council's legal authorities.¹⁷⁰ Yet, as of July 1948, no legislation, order in council or regulation had been passed authorizing the rejection of immigrants on security grounds.

[288]There is no doubt that section 38 of the Immigration Act provided the required authority for doing so subject to the appropriate order being passed. But, it was not until June of 1950 that an order in council was passed giving the Minister the discretion to refuse landing by reference to the broad language contained in that section.¹⁷¹

[289]This Order in Council gave the Minister the discretion to refuse landing unless it could be shown that the person concerned:

4. . . .

(a) . . . is a suitable immigrant having regard to the climatic, social, educational, industrial, labour or other conditions or requirements of Canada; and

(b) is not undesirable owing to his peculiar customs, habits, modes of life, methods of holding property, or because of his probable inability to become readily adapted and integrated into the life of a Canadian community and to assume the duties of Canadian citizenship within a reasonable time after his entry.

[290]The passing of this Order in Council had been preceded by the issuance of Cabinet Directive 14 which again emphasized the need to preserve the secrecy of the security screening criteria being applied in the field.¹⁷² This had become a matter of growing concern since a written list of criteria was now in existence and accessible to selected officials outside the RCMP.

[291]It appears as though P.C. 1950-2856 was passed in the form that it was in order to provide the legal authority for the rejection of prospective immigrants on security grounds while preserving the secrecy of the process and the criteria being applied. That, at least, appears to have been the position which the applicant urged upon McKeown J. in Canada (Minister of Citizenship and Immigration) v. Bogutin. In this decision, McKeown J. provides a brief history of the matter:

In July 1946, when the security panel met for a second time, no Canadian organization existed for the security examination of prospective immigrants at the point of origin. It was decided that a committee would be struck to deal with regulations to permit refusal of undesirables on security grounds. The Government initially considered including security criteria either in the regulations or the Act, but then this idea was rejected and the Cabinet decided that the security screening of prospective immigrants should be dealt with by departmental administrative action rather than by legislation. There is no clear and direct evidence in the documents as to why this was done. However, the reason is clear when it is looked at in the context of Cabinet Directive 14, issued in 1949.¹⁷³ [Emphasis added.]

[292]McKeown J. then points out that Directive 14 reflected the reasons for which prospective immigrants were being rejected on security grounds and says by reference to this direction:

And the reason for proceeding by departmental administrative action is given saying:

"As some of the persons so rejected are not aware that their subversive records are known to security and intelligence agencies, disclosure of the reasons for their rejection as immigrants tends to excite suspicion and compromise valuable sources of information."174

The purpose of P.C. 1950-2856 is later explained as follows:

Cabinet Directive 14 was implemented by Order-in-Council P.C. 2856, 9 June 1950, which prohibited the entry into Canada of all persons except for certain categories of persons such as British subjects and subjects of specified British colonies, citizens of the United Sates and France and:

"4. A person who satisfied the Minister, whose decision shall be final, that:

(a) he is a suitable immigrant having regard to the climatic, social, educational, industrial, labour or other conditions or requirements of Canada, and

(b) is not undesirable owing to his peculiar customs, habits, modes of life . . ." (Emphasis added.)

The "other condition or requirements of Canada" referred to in the Order-in-Council were the security rejection criteria which were specified in the Cabinet Directive and in subsequent administrative directives which were sent to the RCMP which related to the suitability of the person.¹⁷⁵ [Emphasis added.]

[293]There is no doubt on the evidence before me now, and as the matter appears to have been presented before McKeown J., that it was precisely with the view of discreetly providing legal authority for the rejection of prospective immigrants on security grounds that Order in Council P.C. 1950-2856 was passed. I can understand why the applicant would want to rest this authority on a prior order in council in the context of the present proceeding but the facts simply do not support that view.

[294]Order in Council P.C. 1947-2180 does not authorize the rejection of immigrants on security grounds. On the face of it, this Order in Council concerns itself with the selection of persons who sought to come thereunder by reference to labour requirements. This is a matter which came directly under the jurisdiction of the Interdepartmental Immigration Labour Committee constituted in March 1947.¹⁷⁶ The order explicitly contemplates the involvement of these two departments in the selection of DPs; it does not contemplate the involvement of the Department of Justice or the RCMP.

[295]This order was passed on the recommendation of C. D. Howe, who was then the Acting Minister of Mines and Resources, with the support of the Cabinet Committee on Immigration Policy.¹⁷⁷ It was the first of a series of orders in council which were intended to give effect to the immigration policy announced by Prime Minister King in the House of Commons on May 1, 1947. This policy was developed separately from security policy and was not implemented to alleviate security concerns.¹⁷⁸ On the contrary, as we have seen, its implementation increased the risks relating to security and Cabinet specifically decided that the ensuing security problems would be dealt with by "other means".

[296]But even if P.C. 1947-2180 was ambiguous to the point of requiring that I resort to the rules of construction to ascertain its true sense, we are in the unique position in this proceeding to have access to contemporary Cabinet papers which demonstrate unequivocally that this Order in Council was neither intended nor considered as authority for the security screening of prospective immigrants.

[297]Confronted with the fact that there was no legal authority for the process, Cabinet opted throughout to proceed by "administrative measures". It is clear from the evidence which we have reviewed that these decisions were taken on the basis that Cabinet did not view any of the orders in council in force at the time as providing the required authority. It is not until June of 1950, after Prime Minister Saint-Laurent raised the problem one more time that the idea of conferring upon the Minister of Citizenship and Immigration¹⁷⁹ a broad discretionary power under the authority of section 38 of the Immigration Act finally emerged.

[298]I therefore come to the conclusion that in July 1948 there was no authority under the Immigration Act and the orders in council passed thereunder to reject prospective immigrants on the ground that they had collaborated with the enemy.

[299]The applicant also argued that, if there was no authority in the Immigration Act for the rejection of prospective immigrants on security grounds, the process may nevertheless be supported by the doctrine of Crown Prerogative.

[300]This doctrine is described as:

. . . being that special pre-eminence which the monarch has over and above all other persons by virtue of the common law, but out if its ordinary course, in right of her regal dignity, and includes all the special dignities, liberties, privileges, powers and royalties allowed by the common law to the Crown of England.¹⁸⁰

[301]The prerogatives are made up of a collection of powers and duties exercised and assumed by the Crown under the common law. The continued existence of these powers and duties, however, are subject to eradication by statute. Once a statute occupies the ground formerly occupied by the prerogative, the Crown must comply with the terms of the statute.¹⁸¹

[302]In support of her argument that the Crown's prerogative to reject aliens has not been eradicated, the applicant referred to section 17 of the Interpretation Act¹⁸² which states:

17. No enactment is binding on Her Majesty or affects Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

The applicant argued that the Crown prerogative may co-exist with a statute which treats the same subject-matter provided that the statute does not override the prerogative either expressly or by necessary implication. The applicant submits that no such override results from the Immigration Act.

[303]In my view, however, the Immigration Act covers the whole of the prerogative which the applicant claims as authority for the rejection of potential immigrants on security grounds. The Immigration Act in force in 1948 conferred upon the Minister of Mines and Resources the authority to determine who could enter Canada and by definition who could not. When regard is had to the scheme of the Act, there was no apparent limit to the grounds upon which the Minister could refuse entry. As we have seen, section 38 of the Act allowed the Minister to prohibit entry, by order or proclamation, by reason of "climatic, industrial, social, educational, labour or other conditions or requirements of Canada" or because of the immigrants' "peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated". That is the authority under which Order in Council P.C. 1950-2856 was eventually adopted and there can be no doubt that this regulation provided the Minister concerned with the authority to reject immigrants on security grounds.

[304]While at common law, no alien immigrant had a right to enter Canada, the Immigration Act in force in 1948 determined the eligibility of prospective immigrants. In the case of the respondent, it was decided by an immigration officer in July 1948 that he complied with the provisions of the Act and that he met the conditions prescribed by the applicable orders in council.¹⁸³ As such, he became entitled to enter Canada. That he would have been barred from entry if he had truthfully disclosed his past¹⁸⁴ by reference to considerations which were extraneous to the Act and the applicable orders in council cannot alter the fact that he was lawfully admitted to Canada.

CONCLUSION

[305]For the foregoing reasons, I find that the respondent did not obtain Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances.

[306]The parties are invited to address the issue of costs in open Court during the week of January 11, 1999 on a day to be communicated by the Registrar.

¹ Throughout the period, security screening was conducted by RCMP officers also designated as "visa control officers" or "security officers". Immigration officers were also known as "visa officers".

² Transcript, at pp. 265-266, 269.

³ Transcript, at p. 1760.

⁴ Transcript, at p. 1674.

⁵ P.C. 1931-695. Immigration was in essence restricted to individuals from the United Kingdom, the United States, Ireland and the recognized Dominions of the British Empire. No particular impetus for immigration from these countries or Dominions to Canada existed at the time.

⁶ Memorandum to the Cabinet from the Minister of Citizenship and Immigration, February 21, 1952. Exhibit 14, Document 921.

⁷ Transcript, at pp. 285-286.

⁸ Transcript, at p. 287 and Memorandum to the Cabinet from the Minister of Mines and Resources, September 5, 1945. Exhibit 7, Document 241.

⁹ By March 30, 1948, the number of DPs in Europe was thought to be in the range of 600,000 persons. Transcript, at p. 286 and Memorandum to Cabinet from the Secretary of State for External Affairs, March 30, 1946. Exhibit 11, Document 599.

¹⁰ d'Ombrain affidavit, at para. 40 and Transcript, at p. 287.

¹¹ d'Ombrain affidavit, at para. 41 and Transcript, at pp. 288-289. At this time, the Minister of Mines and Resources had responsibility for immigration. Mr. d'Ombrain testified that this reflected the low priority attached to immigration during the 1930s.

¹² d'Ombrain affidavit, at para. 26.

¹³ Letter to J. A. Glen, Minister of Mines and Resources from A. D. P. Heeney, Secretary to the Cabinet, October 25, 1945. Exhibit 7, Document 248.

¹⁴ Order in Council re Status of refugees, P.C. 1945-6687, Canadian War Orders and Regulations, 1945.4.123.

¹⁵ [Order in Council making regulations under the Immigration Act re entry into Canada of enemy aliens] P.C. 1946-1373 [Statutory Orders and Regulations, 1946.II.60], revoked and replaced by Immigration Act—prohibiting the entry into Canada of enemy aliens, P.C. 1947-4850, SOR/47-921, C. Gaz. 1947.II.2339. Prior to the passage of the 1946 Order in Council, enemy aliens were prohibited from entering Canada under the authority of the War Measures Act [R.S.C. 1927, c. 206].

¹⁶ An initial expansion of this class of immigrants was effected by P.C. 1946-2071 on May 28, 1946.

¹⁷ d'Ombrain affidavit, at para. 48, Memorandum to the Cabinet from the Cabinet Committee on Immigration Policy, January 20, 1947. Exhibit 9, Document 379. Cabinet conclusions, January 29, 1930. Exhibit 9, Document 387. Amendments to the Regulations under the Immigration Act, P.C. 1947-371, SOR/47-134, C. Gaz. 1947.II.333.

At the time the respondent entered Canada, the wording of s. 4(a), (c) and (d) of the applicable Order in Council, Immigration Act—prohibiting the landing in Canada of immigrants with certain exceptions, P.C. 1947-4849, SOR/47-920, C. Gaz. 1947.II.2338, was exactly the same. S. 4(b) was widened to read:

    4. . . .

(b) An agriculturist entering Canada to farm with or with the assistance of his father, father-in-law, son, son-in-law, brother, brother-in-law, uncle or nephew engaged in agriculture as his principal occupation and who is in a position and willing to receive such immigrant and establish him on a farm.

¹⁸ Which was effected by Amendment to Order in Council P.C. 695 of March 21, 1931, concerning the landing in Canada of immigrants, P.C. 1947-1734, SOR/47-431 C. Gaz. 1947.II.993.

¹⁹ Transcript, at p. 289 and minutes of meeting of Cabinet Committee on Immigration Policy, April 24, 1947. Exhibit 10, Document 445.

²⁰ Transcript, at p. 292 and statement by the Prime Minister concerning Canada's immigration policy, May 1, 1947. Exhibit 10, Document 447.

²¹ See P.C. 1947-2180, P.C. 1947-2856, P.C. 1947-3926, P.C. 1948-1628, and P.C. 1948-3721. P.C. 1948-3721, passed October 1948, both increased the number of DPs authorized to come to Canada to 40,000 and amended the wording of P.C. 1947-2180 to allow for the admission of DPs from outside of DP camps.

²² Memorandum to the Cabinet from the Minister of Citizenship and Immigration, February 21, 1952. Exhibit 14, Document 921.

²³ Immigration Act—Order re: landing of immigrants in Canada, P.C. 1950-2856, SOR/50-232, C. Gaz. 1950.II.765. The Minister of Citizenship and Immigration was given the discretion to land an individual when satisfied that:

    4. . . .

(a) he is a suitable immigrant having regard to the climatic, social, educational, industrial, labour, or other conditions or requirements of Canada; and

(b) is not undesirable owing to his peculiar customs, habits, modes of life, methods of holding property, or because of his probable inability to become readily adapted and integrated into the life of a Canadian community and to assume the duties of Canadian citizenship within a reasonable time after his entry.

²⁴ Immigration Act—Order respecting the Entry to or Landing in Canada of Enemy Aliens, P.C. 1950-4364, SOR/50-424, C. Gaz. 1950.II.1286.

²⁵ Transcript, at pp. 283-284.

²⁶ d'Ombrain affidavit, at para. 14 and Transcript, at p. 302.

²⁷ Transcript, at pp. 297-300, 448 and memorandum for Mr. Robertson, Re: Landing of refugees, from A.D.P.H., September 20, 1946. Exhibit 8, Document 327. In respect of this decision, Arnold Heeney, Secretary of the Cabinet, wrote to Mr. Robertson that:

You will observe that the Order in Council, which, of course, embodies the only "law" on the subject, makes no reference to security vetting. At the same time, it is quite clear that the Cabinet, having approved the Minister's supporting memorandum, intended that "landings" should only be granted by the officials concerned to those who had been cleared by the R.C.M. Police.

²⁸ Transcript, at pp. 280-285. Memorandum for the Cabinet from the Secretary, Cabinet Defence Committee, May 21, 1946. Exhibit 7, Document 285. Cabinet conclusions, May 22, 1946. Exhibit 7, Document 286.

²⁹ Transcript, at p. 295.

³⁰ Transcript, at pp. 295-296.

³¹ Transcript, at p. 303.

³² On May 28, 1946, by P.C. 1946-2071, the Privy Council had broadened the classes of relatives admissible to Canada.

³³ This subcommittee was to be comprised of representatives from External Affairs, Immigration, Justice and the RCMP.

³⁴ d'Ombrain affidavit, at paras. 65-66. Transcript, at pp. 304-310. Minutes of the Second Meeting of the Security Panel, July 8, 1946. Exhibit 7, Document 315.

³⁵ d'Ombrain affidavit, at para. 67. Transcript, at pp. 309-310. Memorandum for Mr. Wrong, July 24, 1946. Exhibit 7, Document 314.

³⁶ d'Ombrain affidavit, at paras. 68-69. Transcript, at pp. 310-313. Cabinet conclusions, August 5, 1946. Exhibit 7, Document 315. Extract from "Cabinet conclusions" of meeting of Cabinet-5th August, 1946. Exhibit 8, Document 316. Letter to J. A. Glen, Minister of Mines and Resources from Acting Chairman, Security Panel, August 23, 1946. Exhibit 8, Document 325.

³⁷ d'Ombrain affidavit, at paras. 70-72. Transcript, at pp. 314-318. Letter to J. A. Glen, Minister of Mines and Resources from Acting Chairman, Security Panel, August 23, 1946. Exhibit 8, Document 325. Minutes of the Fifth Meeting of the Security Panel, August 19, 1946. Exhibit 8, Documents 322, 323,324.

³⁸ Letter to Louis Saint-Laurent, Minister of Justice from S. T. Wood, Commissioner of the RCMP, October 9, 1946. Exhibit 8, Document 331.

³⁹ At that time, it was the Minister of Justice who had responsibility for the RCMP.

⁴⁰ Transcript, at pp. 319-322, 452-454 and letter to Louis Saint-Laurent, Minister of Justice from S. T. Wood, Commissioner of the RCMP, October 9, 1946. Exhibit 8, Document 331.

⁴¹ Letter to Inspector A. W. Parsons from the Director, October 23, 1946. Exhibit 8, Document 340.

⁴² Transcript, at pp. 459-462. Letter to Sergeant Hinton from L. H. Nicholson, Assistant Commissioner of the RCMP, December 27, 1946. Exhibit 9, Document 367. Memorandum to the Security Panel from the Secretary of the Security Panel, January 3, 1947. Exhibit 9, Document 368.

⁴³ Memorandum to the Security Panel from the Secretary of the Security Panel, January 3, 1947. Exhibit 9, Document 368.

⁴⁴ Letter to Sergeant Hinton from L. H. Nicholson, Assistant Commissioner of the RCMP, January 3, 1947. Exhibit 9, Document 370.

⁴⁵ Transcript, at pp. 466-469 and letter to J. A. Glen, Minister of Mines and Resources from Mr. Jolliffe, Director of Immigration, January 27, 1947. Exhibit 9, Document 384.

⁴⁶ Cabinet conclusions, January 29, 1947. Exhibit 9, Document 327.

⁴⁷ Cabinet conclusions, January 29, 1930. Exhibit 9, Document 387.

⁴⁸ Transcript, at pp. 332-337. Minutes of the Tenth Meeting of the Security Panel, January 30, 1947. Exhibit 9, Documents 393, 394, 395. Memorandum to the Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947. Exhibit 9, Document 398.

⁴⁹ Memorandum to the Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947. Exhibit 9, Document 398.

⁵⁰ Transcript, at p. 478.

⁵¹ Memorandum to the Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947. Exhibit 9, Document 398.

⁵² Memorandum to the Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947. Exhibit 9, Document 398.

⁵³ Letter to J. A. Glen, Minister of Mines and Resources from A. D. P. Heeney, Secretary to the Cabinet, February 7, 1947. Exhibit 9, Document 400.

⁵⁴ Transcript, at pp. 462, 485-486.

⁵⁵ Transcript, at p. 343.

⁵⁶ Transcript, at p. 465.

⁵⁷ d'Ombrain affidavit, at para. 75 and memorandum to the Cabinet from Jas. A. MacKinnon, Acting Minister of Mines and Resources, August 8, 1947. Exhibit 10, Documents 497, 498, 499.

⁵⁸ Screening of applicants for admission to Canada, November 20, 1948. Exhibit 12, Document 710.

⁵⁹ Minutes of the Twenty-First Meeting of the Security Panel, April 5, 1949. Exhibit 12, Document 743.

⁶⁰ Minutes of the Twenty-First Meeting of the Security Panel, April 5, 1949. Exhibit 12, Document 743.

⁶¹ Memorandum for the Cabinet from N. A. Robertson, the Chairman of the Security Panel, August 22, 1949. Exhibit 13, Document 772.

⁶² Transcript, at p. 592.

⁶³ There were a number of organizations after the war who looked after DPs and refugees. These organizations were the Inter-Governmental Commission for Refugees (IGCR), the United Nations Relief and Rehabilitation Administration (UNRRA), the Preparatory Commission for the International Refugee Organization (PCIRO) and the International Refugee Organization (IRO). All came under the United Nations.

⁶⁴ Form 55 completed by Jacob John Hanzen, January 26, 1948. Exhibit 11, Document 579.

⁶⁵ Exhibit 34. A virtually identical document was issued to Tatjana Dueck for herself and their children, Johann and Alla Dueck. Exhibit 35.

⁶⁶ Transcript, at p. 1694.

⁶⁷ Letter to Commissioner S. T. Wood, RCMP from A. L. Jolliffe, Director of Immigration, February 17, 1948. Exhibit 9, Document 404.

⁶⁸ Letter to Commissioner S. T. Wood, RCMP from A. L. Jolliffe, Director of Immigration, February 17, 1948. Exhibit 9, Document 404.

⁶⁹ With the concurrence of the Department of External Affairs, Justice (RCMP), Labour, and National Health and Welfare.

⁷⁰ Memorandum to the Cabinet from Jas. A. MacKinnon, Acting Minister of Mines and Resources, August 8, 1947. Exhibit 10, Documents 497, 498, 499.

⁷¹ d'Ombrain report, at para. 75. Transcript, at pp. 324-330. Memorandum to the Cabinet from Jas. A. MacKinnon, Acting Minister of Mines and Resources, August 8, 1947. Exhibit 10, Documents 497, 498, 499.

⁷² Minutes from meeting reviewing the question of security screening, October 2, 1947. Exhibit 10, Documents 518, 519.

⁷³ Transcript, at pp. 529-532 and letter to Mr. Jolliffe, Director of Immigration Branch from J. D. McFarlane, March 17, 1948. Exhibit 11, Document 598.

⁷⁴ Transcript, at pp. 1703-1704.

⁷⁵ Transcript, at p. 610 and list of personnel-Karlsruhe, October 8, 1948.

⁷⁶ Memorandum for the Security Panel, Re: Security Screening of Prospective Immigrants from J. A. K. Rutherford, Secretary of the Security Panel, March 30, 1948. Exhibit 11, Document 604.

⁷⁷ The report actually has no cutoff date. It must have been prepared, however, before March 30, 1948 and it was Mr. d'Ombrain's view that the figures in this report would be "reasonably up-to-date". Transcript, at p. 367.

⁷⁸ Immigration Labour Committee-Group Movements, April 8, 1948. Exhibit 11, Document 615.

⁷⁹ Written submissions of the respondent, at p. 60.

⁸⁰ Confidential-off the record letter from Mr. Phelan to Dr. A McNamara, Deputy Minister of Labour, May 25, 1948. Exhibit 20, Document 14.

⁸¹ Among other possible relatives.

⁸² Transcript, at pp. 3553-3556.

⁸³ Transcript, at pp. 1680, 1773-1774.

⁸⁴ This instruction also advised that:

The mandate of the I.G.C.R. does not cover nationals of enemy countries (Germans, Austrians, Italians, Roumanians, Hungarians, Finnish, Volksdeutsche), prisoners of war in allied hands regardless of nationality, war criminals, quizzlings, or traitors, or any persons who have assisted enemy forces or those who have fled from Germany or into Germany from their places of residence in order to avoid falling into the hands of allied armies, etc.

⁸⁵ See note 62.

⁸⁶ Procedure in handling alien immigration, from the Director of Immigration, March 29, 1947. Exhibit 9, Document 430.

⁸⁷ Instruction to Canadian Visa Officers No. 3 from the Acting Director of Immigration, July 29, 1947. Exhibit 10, Document 495.

⁸⁸ Transcript, at pp. 353-354.

⁸⁹ Transcript, at p. 1752.

⁹⁰ It is worth reiterating at this point that on discovery the applicant admitted that the respondent had not been admitted to Canada under P.C. 1947-2180, the bulk labour scheme. Transcript, at pp. 3553-3556.

⁹¹ Transcript, at pp. 1820-1821.

⁹² i.e. not only those selected by railway colonization officials.

⁹³ Letter to Mr. Cotsworth, Acting Commissioner of European Immigration from A. L. Jolliffe, Director, February 23, 1947. Exhibit 9, Document 406.

⁹⁴ While a document of the Inter-governmental Committee on Refugees dated February 24, 1947 indicates that each individual appearing before a Canadian selection team must have a completed Canadian application form, this document does not specify whether the application form would be a Form 55 or some other application form. While a copy of the application form was attached to the original document, it was not attached to the copy of the document produced. Memorandum to the Chief, Field Operations, IGCR and Deputy Chief, Filed Operations, IGCR Re: Canadian Close Relatives' Scheme, February 24, 1947. Exhibit 6, Document 408.

⁹⁵ Transcript, at pp. 3569-3570.

⁹⁶ Application for immigration visa, Exhibit 1, document 38. Application for immigration visa, IMM 382, Exhibit 1, Document 40. Em. 3, application for visa, Exhibit 1, Document 41. IMM.357 questionnaire, Exhibit 1, Document 61. Immigration questionnaire Em.2, April 25, 1948, Exhibit 11, Document 628. Letter to Commissioner of Immigration, January 8, 1949, attaching questionnaire Em.2 and application for immigration visa, IMM.362, Exhibit 12, Document 723. Letter to Director Immigration from Acting Commissioner of Immigration, November 18, 1947, Exhibit 10, Document 527.

⁹⁷ Transcript, at pp. 1683-1685, 1712, 1775-1776.

⁹⁸ Transcript, at pp. 1683-1686, 1775.

⁹⁹ Transcript, at pp. 1685-1686.

¹⁰⁰ This is somewhat surprising as the applicant introduced in evidence extensive documentation relating to the IRO process.

¹⁰¹ Memorandum for the Security Panel from J. A. K. Rutherford, Secretary of the Security Panel, March 30, 1948. Exhibit 11, Document 604.

¹⁰² d'Ombrain affidavit, at para. 93.

¹⁰³ d'Ombrain affidavit, at para. 116.

¹⁰⁴ d'Ombrain affidavit, at para. 114.

¹⁰⁵ Memorandum for the Security Panel Re: Security Screening of Prospective Immigrants from J. A. K. Rutherford, Secretary of the Security Panel, March 30, 1948. Exhibit 11, Document 604.

¹⁰⁶ d'Ombrain affidavit under the heading "Findings and Conclusions Respecting Security Screening for Prospective Immigrants", at paras. 85, 115.

¹⁰⁷ See d'Ombrain affidavit and the documents referred to therein under the headings "Security Screening Criteria", "Security Screening Methodology", "Refinement of Criteria Relating to Wartime Activities" and "Findings and Conclusions Respecting Security Clearing", at paras. 83-119.

¹⁰⁸ Unless of course the document in question purports to be retrospective.

¹⁰⁹ Chart, Immigration Statistics Postwar. Exhibit 22.

¹¹⁰ The intensity of the activity is illustrated by the fact that between April 1947 and April 1948, the Cabinet Committee on Immigration Policy met 37 times (d'Ombrain affidavit, at para. 49). The Security Panel met 21 times between June 1946 and April 1949 (d'Ombrain affidavit, at para. 32). According to Mr. d'Ombrain, 1947 and 1948 is the period during which the security criteria list "evolved" (d'Ombrain affidavit, at para. 85).

¹¹¹ That is the general policy under which the screening criteria were developed.

¹¹² Draft memorandum to the Prime Minister from N. A. R. (N. A. Robertson), September 16, 1949. Exhibit 13, Document 783.

¹¹³ Letter from the Commissioner of the RCMP to S/Sergeant W. W. Hinton, October 23, 1946, para. 12. Exhibit 8, Document 342.

¹¹⁴ Transcript, at p. 577.

¹¹⁵ Letter to Major J. A. Wright from Geo. B. McClellan, Supt. Officer, Special Branch, July 7, 1948. Exhibit 11, Document 652.

¹¹⁶ This is made obvious by the fact that the first list of screening criteria presented to the Prime Minister in September 9, 1949 as reflecting the applicable criteria is the list which resulted from this process. (See list, at para. 247 of these reasons.)

¹¹⁷ Letter to Major J. A. Wright from Geo. B. McClellan, Supt. Officer, Special Branch, July 26, 1948. Exhibit 12, Document 661.

¹¹⁸ The applicant has been unable to produce Major Wright's report of "the 20th ulto" or Sgt. Norfolk's report on the subject.

¹¹⁹ Letter to the Commissioner of the RCMP from Major J. A. Wright, August 11, 1948. Exhibit 12, Document 668.

¹²⁰ None of the security officers in function at the time were available to testify.

¹²¹ The prohibition relating to members of the Nazi party must also be read as applying to non-Germans since in 1948, Germans were enemy aliens and as such were prohibited from entry under P.C. 1950-4850.

¹²² Transcript, at p. 580.

¹²³ Letter to Major J. A. Wright from A. W. Parsons, Inspector for officer in charge of Special Branch, September 23, 1948. Exhibit 12, Document 692.

¹²⁴ The letter goes on to state "with the exception of that shown under (j)," a cause which was thought to properly belong to immigration officers. See para. 5 of the said letter.

¹²⁵ Screening of applicants for admission to Canada, November 20, 1948. Exhibit 12, Document 710.

¹²⁶ See memorandum addressed to the Commissioner of the RCMP from Laval Fortier, Commissioner of Immigration, Department of Mines and Resources, February 7, 1949, at p. 2. Exhibit 12, Document 730.

¹²⁷ Compare the list under para. 247 below.

¹²⁸ There has been no suggestion by the applicant that the respondent came within either of these paragraphs.

¹²⁹ My impression was that Mr. d'Ombrain's failure to deal with this document was owing to the fact that he had only been asked to opine on the general policy of government. However, when I raised the matter during argument, counsel for the applicant confirmed that Mr. d'Ombrain had been asked to opine on the security criteria as they were being applied in the field at the time.

¹³⁰ d'Ombrain affidavit, at para. 106.

¹³¹ (1998), 151 F.T.R. 161 (F.C.T.D.), at p. 194 (hereinafter Vitols).

¹³² d'Ombrain affidavit, at para. 82.

¹³³ Memorandum to the Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947, at para. 5. Exhibit 9, Document 398.

¹³⁴ Letter from the Commissioner of the RCMP to the Deputy Minister, Immigration Branch, Department of Mines and Resources, May 10, 1948. Exhibit 11, Document 634.

¹³⁵ Draft memorandum to the Prime Minister from N. A. R. (N. A. Robertson), September 16, 1949. Exhibit 13, Document 783.

¹³⁶ d'Ombrain affidavit, at paras. 83, 84.

¹³⁷ Transcript, at pp. 582-584.

¹³⁸ Specific reference is made to the adverbs "presently" "in" and "previously".

¹³⁹ The specific suggestion was that "some thought could be given to widening the scope of the proposed list" by reference to "collaborators presently residing in previously occupied territory".

¹⁴⁰ Minutes of the 10th meeting of the Security Panel held January 30, 1947, signed by J. A. K. Rutherford, Secretary, February 1^st, 1947. Exhibit 9, Document 395.

¹⁴¹ Memorandum to the Cabinet from E. W. Gill, Vice-Chairman, Security Panel, February 4, 1947, at para. 3. Exhibit 9, Document 398.

¹⁴² Mr. d'Ombrain uses the term "unrefined" in his affidavit. See d'Ombrain affidavit under the heading "Refinement of Criteria Relating to Wartime Activities", at paras. 93-109.

¹⁴³ Memorandum from P. M. Dwyer, Secretary, Security Panel to the Security Panel, April 30, 1952, at para. 10. Exhibit 15, Document 944.

¹⁴⁴ Final submissions of the applicant, at para. 489.

¹⁴⁵ Letter from E. W. Gill, Acting Secretary, Security Panel, to J. A. Glen, Minister of Mines and Resources, August 23, 1946. Exhibit 8, Document 325.

¹⁴⁶ Extract from "Cabinet Conclusions" of the meeting of Cabinet, August 5, 1946. Exhibit 8, Document 316.

¹⁴⁷ Confidential memorandum for Mr. Wrong, July 24, 1946. Exhibit 7, Document 314.

¹⁴⁸ Extract from "Cabinet Conclusions" of the meeting of Cabinet, August 5, 1946. Exhibit 8, Document 316.

¹⁴⁹ Letter from the Commissioner of the RCMP to S/Sergeant W. W. Hinton, October 23, 1946. Exhibit 8, Document 342.

¹⁵⁰ Immigration Act, R.S.C. 1927, c. 93.

¹⁵¹ Immigration Act—prohibiting the landing in Canada of immigrants with certain exceptions, P.C. 1947-4849, SOR/47-920, C. Gaz. 1947.II.2338.

¹⁵² Immigration Act—prohibiting the entry into Canada of enemy aliens, P.C. 1947-4850, SOR/47-921, C. Gaz. 1947.II. 2339.

¹⁵³ Immigration Act—regulation respecting the production of passports by immigrants to Canada, P.C. 1947-4851, SOR/47-922, C. Gaz. 1947.II.2340.

¹⁵⁴ Letter from Assistant Commissioner Nicholson to officer in charge of special branch, visa control, July 22, 1948. Exhibit 11, Document 660.

¹⁵⁵ Letter from Geo. B. McClellan, Supt. to Major J. A. Wright, July 26, 1948. Exhibit 12, Document 661.

¹⁵⁶ Memorandum for the Security Panel, Re: Security Screening of Prospective Immigrants from J. A. K. Rutherford, Secretary of the Security Panel, March 30, 1948. Exhibit 11, Document 604.

¹⁵⁷ S. 13-20 of the Immigration Act provided a right of appeal to a Board of Inquiry from any decision made under the Act refusing entry and a further appeal to the Minister except where the refusal was based on medical grounds.

¹⁵⁸ Letter from the Commissioner of the RCMP to the Director of Immigration, July 3, 1948. Exhibit 11, Document 650.

¹⁵⁹ Confidential agreement respecting the "Duties and Responsibilities of Security Officers Attached to the Canadian Immigration Mission in Occupied Countries" executed by the Director, Immigration Branch and the Commissioner of the RCMP, July 12, 1948. Exhibit 11, Document 655.

¹⁶⁰ In a memorandum dated February 7, 1949, the Associate Commissioner of Immigration, Laval Fortier, notes: "in order that the senior officers of this Branch (the Minister, the Deputy Minister, [etc.]) would know the grounds of rejection, the R.C.M.P. have agreed to include after the words Not Clear for Security the grounds for rejection by indicating the grounds by a letter (a), (b), (c), (d), etc., whichever grounds are applicable." Exhibit 12, Document 730.

¹⁶¹ d'Ombrain affidavit, at paras. 29-33.

¹⁶² d'Ombrain affidavit, at para. 28.

¹⁶³ Extract from "Cabinet Conclusions" of the meeting of Cabinet, August 5, 1946. Exhibit 8, Document 316.

¹⁶⁴ This should be obvious to the applicant as she has admitted in the present proceeding that the respondent did not come in under the consolidation of P.C. 1947-2180, but under the consolidation of P.C. 1931-695. Transcript, at pp. 3533-3556.

¹⁶⁵ See Order in Council P.C. 1950-4850, prohibiting the entry of enemy aliens.

¹⁶⁶ As early as July 8, 1946, during the second meeting of the Security Panel, the following is recorded:

Doubt existed as to whether existing immigration regulations provided authority for the refusal of entry of persons deemed undesirable from a security point of view and, if the situation demanded it, some new procedure would have to be devised.

At the conclusion of this meeting, a resolution was adopted to draft, for the benefit of the Minister of Mines and Resources "a clause for inclusion in the new regulations . . . to permit the refusal of undesirables on security grounds". Security Panel Minutes, July 8, 1946, at p. 5. Exhibit 7, Document 309.

¹⁶⁷ Memorandum to Mr. Robertson from A. P. Heeney, September 20, 1926. Exhibit 8, Document 327.

¹⁶⁸ Memorandum to Cabinet from E. W. T. Gill, Vice-Chairman, Security Panel, February 4, 1947. Exhibit 9, Document 398.

¹⁶⁹ Draft memorandum to Prime Minister from N. A. R. (N. A. Robertson), September 16, 1949. Exhibit 13, Document 783.

¹⁷⁰ Affidavit of Mr. d'Ombrain, at para. 14.

¹⁷¹ Immigration Act—Order re: landing of immigrants in Canada, P.C. 1950-2856, SOR/50-232, C. Gaz. 1950.II.765.

¹⁷² Cabinet Directive: Circular No. 14: Rejection of Immigrants on Security Grounds, N. A. Robertson, October 28 1949. Document 805.

Displaced persons and certain classes of prospective immigrants desiring to enter Canada are investigated under established procedures by the R.C.M. Police. Persons in specified categories (i.e., Communists, members of the Nazi or Fascist Parties or any revolutionary organization, "collaborators", and users of false or fictitious names or documents) are regarded as inadmissible under the Immigration Act and are refused a visa. As some of the persons so rejected are not aware that their subversive records are known to security and intelligence agencies, disclosure of the reasons for their rejection as immigrants tends to excite suspicion and compromise valuable sources of information.

¹⁷³ Canada (Minister of Citizenship and Immigration) v. Bogutin, (1998), 144 F.T.R. 1 (F.C.T.D.), at para. 66, p. 18.

¹⁷⁴ Bogutin, supra, at para. 67, p. 18.

¹⁷⁵ Bogutin, supra, at para. 73, p. 19.

¹⁷⁶ d'Ombrain affidavit, at paras. 26, 49.

¹⁷⁷ d'Ombrain affidavit, at para. 54.

¹⁷⁸ d'Ombrain affidavit, at paras. 56, 57.

¹⁷⁹ By then the responsibility for Immigration was no longer under Mines and Resources. A new ministry had been formed and the responsibility for immigration had been transferred to the Minister of Citizenship and Immigration.

¹⁸⁰ Halsbury's Laws of England, Vol. 8(2), 4th ed. reissue, at p. 244, para. 367.

¹⁸¹ P. W. Hogg, Constitutional Law of Canada, 4th ed. (Toronto: Carswell, 1997), at pp. 15-19.

¹⁸² R.S.C., 1985, c. I-21.

¹⁸³ See para. 267 above.

¹⁸⁴ Assuming that to be the case for present purposes.