The following article is a written assignment prepared for the Osgoode Immigration Law Fall 2012 class. The following is not legal advice and should not be treated as such.
On August 19, 2011 the Vancouver Sun ran a story titled “Former Serb prison guard loses citizenship battle”. The case of Branko Rogan – the alleged Serbian war criminal- was the first-ever citizenship revocation hearing for war crimes committed after the World War II. Last week’s class discussions of League of Human rights of B’nai Brith Canada v Canada reminded me of the Rogan case. As of today that case is still in its second stage of the citizenship revocation process: the judicial decision has been rendered, but the Governor in Council has not issued an order to strip Mr. Rogan of his Canadian citizenship.
Taking into consideration both the Rogan and the Bna’i Brith cases, in this journal entry I would like to remark on the power of the Governor in Council in the current multi- step revocation process scheme and the standard of proof applied by the courts in the process.
Governor in Council. As stated in the Citizenship Act, the Governor in Council has the final say in the revocation of citizenship process. The Court in Bna’i Brith stated that the Governor in Council was not simply a date-settler and the Parliament intended to accord the Governor in Council with a broad discretion to review the recommendation of the Minister. In my opinion, such distribution of powers raises the question of whether the current scheme, which “provides for judicial fact finding, a Ministerial recommendation, and then a final level of full review by a board body representing all constituencies and perspectives within government”, makes the whole process political rather than administrative. It seems that the involvement of the “highest political organ” with a broad discretion makes it possible to have a decision of the Governor in Council to be influenced, for example, by a current political climate in the country, a political agenda of the Cabinet, as well as any economic considerations. Giving the Governor in Council a broad discretion to consider many elements of the general policy in rendering the decision inadvertently creates, in my opinion, an appearance of the process that is not transparent. It might be more prudent to allow the judiciary- an independent governmental body- to handle the revocation cases. It might provide for more transparency in the revocation process as well as minimize chances of political considerations to influence a decision to strip an individual of his/her citizenship.
One might argue that the Governor in Council’s decision is subject to judicial review. While this statement is correct, the standard of review of the Governor in Council’s decision is one of reasonableness – a standard with a pretty low threshold.
Standard of Proof. As stated both in the Bna’i Birth and Rogan, the standard of proof in the revocation cases is the balance of probabilities. One might argue that this standard is too low for such a critical decision as losing a citizenship. Proponents of this position might refer to the Odynsky and Katriuk cases as an example of an unfair decision that followed from the application of the current standard of proof. There, despite lack of any explicit evidence that either of the defendants was personally involved in the atrocities of the war, the court ruled that it was more probable than not that the defendants were not truthful in answering questions about their wartime activities.
I believe that the current standard is an appropriate one, specifically in cases dealing with the alleged war criminals that concealed their past activities while applying for Canadian permanent residence and later – their citizenship. It is evident, both from the Bna’i Brith and Rogan cases, that the judicial fact-finding process in cases relating to the alleged war crimes is very complicated. According to Patricia Wald, the majority of the evidence in the war crimes hearings comes from the witnesses testimony who are either not willing to testify about their traumatic experiences or afraid of going publicly for fear of being targeted by groups affected by the testimony: “Intimidation, anonymous phone calls, and word-of-mouth threats relayed by third party intermediaries occur with some frequency when the word gets out that someone is coming to testify…” In cases of Mr. Odynsky, Mr. Katriuk and Mr. Rogan no witnesses were able to testify about the defendant’s acts during the war times and the court had to rely on specialist reports and indirect testimonies. While the lack of witnesses in the former two cases can be explained by the amount of time that has passed since the events, the lack of the witnesses in the latter might well be due to the reasons enumerated by Wald.
Given the intricacies that the courts go through in order to establish whether the alleged war criminal was personally involved in the acts, which would have rendered him inadmissible to Canada, and lied about it on the application, I believe that the current low threshold of the standard of proof is balanced against these intricacies.
Mr. Katriuk and Mr. Odynsky kept their citizenships. As of October 2011 Mr. Rogan still resided with his family in Canada, and the Governor in Council has still to render his decision on his matter. I am impatiently waiting for this decision.
 League of Human rights of B’nai Brith Canada v Canada, 2010 FCA 307,  FCJ No 1424 (“Bna’i Brith”).
 Canada (Minister of Citizenship and Immigration) v Rogan, 2011 FC 1007, 396 FTR 47 (“Rogan”).
 Bna’i, supra at 82.
 ibid at 66.
 ibid 80.
 ibid 81.
 Rogan, supra at 381; Bna’i, supra at 34.
 Canada (Minister of Citizenship and Immigration) v Odynsky (2001), 14 Imm LR at 207; Canada (Minister of Citizenship and Immigration) v Katriuk (1999), 156 FTR 163 at 67.
 Patricia M Wald, “Dealing with Witnesses in War Crime Trials: Lessons from the Yugoslave Tribunal” (2002) 5 Yale Hum Rts 217 at 220.
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