Canada (Minister of Citizenship and Immigration) v. Kisluk, (1999) 169 F.T.R. 161 (TD)

• Judge: Lutfy, J.
• Court: Federal Court (Canada)
• Case Date: February 02, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1999), 169 F.T.R. 161 (TD)

Can. (M.C.I.) v. Kisluk (1999), 169 F.T.R. 161 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. JN.107

In The Matter Of a revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33;

In The Matter Of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29;

And In The Matter Of a reference to the Court pursuant to rule 920 of the Federal Court Rules.

The Minister of Citizenship and Immigration (applicant) v. Serge Kisluk (respondent)

(T-300-97)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Kisluk

Federal Court of Canada

Trial Division

Lutfy, J.

June 7, 1999.

Summary:

The Minister sought to have Kisluk's citizenship revoked on the ground that he was admitted to Canada in 1949 for perma­nent residence and was granted Canadian citizenship in 1954 by false representations, fraud or by knowingly concealing material circumstances. Particularly, Kisluk allegedly collaborated with and served German auth­orities in the Ukraine between 1941 and 1943 while a member of the Ukraine auxili­ary police and participated in the commis­sion of crimes and atrocities against Ukraine civilians.

The Federal Court of Canada, Trial Divi­sion, determined that in 1948 the discretion granted to immigration officers and orders-in-council then in effect empowered those officers to prohibit from entering Canada prospective immigrants found to be a secur­ity risk (e.g., German collaborators). Kisluk voluntarily assisted the German forces and through his activities as a railway guard and auxiliary police officer (e.g., beating of a Jew and participation in the execution of a young Jewish woman) he collaborated with the Germans. Kisluk knowingly concealed this information from immigration officers when asked and falsely stated in his 1954 citizenship petition that he was a person of good character. The court held that "Kisluk was admitted to Canada for permanent resi­dence and obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circum­stances".

Aliens - Topic 2504

Naturalization - General - Revocation - The Minister sought to have Kisluk's citi­zenship revoked on the ground that he was admitted to Canada in 1949 for permanent residence and was granted Canadian citi­zenship in 1954 by false representations, fraud or by knowingly concealing material circumstances - The Federal Court of Canada, Trial Division, held that the bur­den of proof rested with the Minister and the standard of proof was the civil stan­dard on a balance of probabilities - How­ever, the court stated that "I must scruti­nize the evidence with greater care because of the serious allegations to be established by the proof that is offered" - See para­graph 5.

Aliens - Topic 2504

Naturalization - General - Revocation - [See Aliens - Topic 2548 ].

Aliens - Topic 2548

Naturalization - Disqualifications - Mak­ing false representation or concealing material circumstances - The Minister sought to have Kisluk's citizenship revoked on the ground that he was admitted to Canada in 1949 for permanent residence and was granted Canadian citizenship in 1954 by false representations, fraud or by knowingly concealing material circum­stances - Particularly, Kisluk allegedly collaborated with and served German authorities in the Ukraine between 1941 and 1943 while a member of the Ukraine auxiliary police and participated in the commission of crimes and atrocities against Ukraine civilians - The Federal Court of Canada, Trial Division, deter­mined that in 1948 the discretion granted to immigration officers and orders-in-council then in effect empowered those officers to prohibit entry to prospective immigrants found to be a security risk (e.g., German collaborators) - Kisluk voluntarily assisted the Germans and through his activities as a railway guard and police officer (e.g., beating a Jew and participating in executing a young Jewish woman) he collaborated with the Germans - Kisluk knowingly concealed this infor­mation from immigration officers and falsely stated in his 1954 citizenship peti­tion that he was a person of good character - The court held that "Kisluk was admitted to Canada for permanent resi­dence and obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circum­stances".

Cases Noticed:

Canada (Minister of Citizenship and Im­migration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.), refd to. [para. 5, footnote 2].

Canada (Minister of Citizenship and Im­migration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), refd to. [para. 5, footnote 2].

Canada (Minister of Citizenship and Im­migration) v. Dueck (1998), 155 F.T.R. 1 (T.D.), refd to. [para. 6, footnote 3].

Thomson v. Canada (Minister of Agricul­ture), [1992] 1 S.C.R. 385; 133 N.R. 345, refd to. [para. 149, footnote 121].

Lee v. Canada (Attorney General), [1981] 2 S.C.R. 90; 38 N.R. 346, refd to. [para. 149, footnote 121].

Operation Dismantle Inc. et al. v. Canada et al., [1983] 1 F.C. 745; 49 N.R. 363 (F.C.A.), affd. [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, refd to. [para. 149, footnote 121].

Goguen and Albert v. Gibson, [1983] 2 F.C. 463; 50 N.R. 286 (F.C.A.), refd to. [para. 149, footnote 121].

R. v. Secretary of State for the Home Department; ex parte Northumbria Police Authority, [1989] 1 Q.B. 26 (C.A.), refd to. [para. 149, footnote 121].

United States of America v. Ivey et al. (1995), 130 D.L.R.(4th) 674 (Ont. Gen. Div.), affd. (1996), 93 O.A.C. 152; 159 D.L.R.(4th) 570 (C.A.), refd to. [para. 149, footnote 121].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 153, footnote 124].

Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), refd to. [para. 154, footnote 126].

Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 103; 64 F.T.R. 127 (T.D.), affd. (1995), 179 N.R. 106 (F.C.A.), refd to. [para. 154, footnote 128].

CNCP Telecommunications v. Alberta Government Telephones and C.R.T.C., [1989] 2 S.C.R. 225; 98 N.R. 161, refd to. [para. 155, footnote 130].

Offshore Mineral Rights of British Colum­bia, Re, [1967] S.C.R. 792, refd to. [para. 160, footnote 134].

Stevenson Construction Co. v. Canada (1978), 24 N.R. 390 (F.C.A.), refd to. [para. 166, footnote 142].

McHugh v. Union Bank of Canada, [1913] A.C. 299, refd to. [para. 166, footnote 142].

Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95, refd to. [para. 166, footnote 142].

Julius v. Lord Bishop of Oxford (1880), 5 App. Cas. 214 (H.L.), refd to. [para. 166, footnote 142].

R. v. Moore (1985), 7 O.A.C. 33; 49 O.R.(2d) 1 (C.A.), refd to. [para. 166, footnote 142].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 179, footnote 155].

R. v. Home Secretary; ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), refd to. [para. 179, footnote 156].

Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149 (C.A.), refd to. [para. 179, footnote 156].

Khawaja v. Secretary of State for the Home Department, [1983] 1 All E.R. 765 (H.L.), refd to. [para. 196, footnote 170].

Minister of Manpower and Immigration v. Brooks, [1974] S.C.R. 850, refd to. [para. 196, footnote 170].

Statutes Noticed:

Immigration Act, R.S.C. 1927, c. 93, sect. 3 [para. 157, footnote 131]; sect. 38(c) [para. 158, footnote 132].

Authors and Works Noticed:

Canada, Commission of Inquiry concerning Certain Activities of the Royal Canadian Mounted Police, Second Report (1981), vol. 1, pp. 58 to 60 [para. 160, footnote 135]; 64 [para. 149, footnote 121].

Chitty, J., A Treatise of the Law of the Prerogative of the Crown and the Rela­tive Duties of the Subject (1820), p. 49 [para. 152, footnote 123].

Counsel:

Graham Reynolds, Q.C., Peter Hajecek, David Littlefield and Yves Leboeuf, for the applicant;

Orest H.T. Rudzik and Nestor Woychy­shyn, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the applicant;

Orest H.T. Rudzik, Toronto, Ontario, for the respondent.

This reference was heard between February 2, 1998 and March 11, 1999, at Toronto and Ottawa, Ontario, and Lutsk, Kupychev and Makovichi, Ukraine, before Lutfy, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on June 7, 1999.