2020 FC 570, 2020 FC 570

T-1336-17 2020 FC 570 The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness ( Plaintiffs ) v. Cedo Kljajic ( Defendant ) Indexed as: Canada (Citizenship and Immigration) v. Kljajic Federal Court, Crampton C.J.—Ottawa, January 13 – 17, 20 – 22; April 30, 2020.

Citizenship and Immigration — Status in Canada — Citizens — False representation or fraud — Inadmissible persons —- War crimes and crimes against humanity — Action by plaintiffs seeking various declarations of inadmissibility against defendant pursuant to Citizenship Act , ss. 10.1(1) , 10.2 , 10.5(1) in force at time statement of claim served, filed — Defendant holding position of Under- Secretary for Public Security of Ministry of Internal Affairs of Bosnian Serb Republic (RS MUP) from outbreak of Bosnian war until September 1992 — Responsible for, inter alia, defence of police academy — Applying for permanent residence in Canada in 1995, becoming Canadian citizen in 1999 — Minister of RS MUP, defendant’s direct subordinates later imprisoned for war crimes — Plaintiffs alleging that defendant inadmissible (1) for having been prescribed senior official in service of government that engaged in systematic or gross human rights violations, genocide, war crimes, crimes against humanity, within meaning of Crimes Against Humanity and War Crimes Act ( CAHWCA ), ss. 6(3) , (4) , (5) ; (2) for having been complicit in commission of acts outside Canada constituting offence referred to in CAHWCA , ss. 6 , 7 — Seeking declarations that defendant inadmissible, obtaining permanent resident status, citizenship by false representation or fraud, or by knowingly concealing material circumstances — Whether defendant becoming permanent resident by false representation or fraud or by knowingly concealing material circumstances; whether defendant inadmissible on grounds of violating human or international rights, as set forth in Immigration and Refugee Protection Act ( Act ), s. 35(1) (b); whether defendant inadmissible on grounds of violating human or international rights, as set forth in Immigration and Refugee Protection Act ( Act ), s. 35(1) (a) — Defendant knowingly concealing material circumstances — Omitted facts possibly leading to screening out of defendant’s application, further inquiries — Fear of harm not negating reasonable inference that defendant “knowingly” concealing material circumstances — Applicants having to disclose basis for fear of persecution — Defendant inadmissible on grounds of violating human or international rights — Within Parliament’s power to legislate that permanent residents inadmissible by virtue of holding prescribed senior position within government engaged in crimes referred to in Act, s. 35(1) (b) — Ezokola v.

Canada (Citizenship and Immigration) having no application to s. 35(1) (b) — Nothing in Act, s. 42.1 or elsewhere providing Court with jurisdiction to take account of national interest considerations in conducting assessment contemplated by Citizenship Act , s. 10.5(1) — Here, defendant “senior member” of military, internal security service of RS government — Defendant complicit in RS MUP’s crimes against humanity, pursuant to Act, s. 35(1) (a), voluntarily making significant, knowing contribution to group’s crime or criminal purpose — RS MUP playing critical role in war — Defendant likely aware of crimes perpetrated by RS MUP — Heading branch heavily involved in combat activities — Actively involved in establishment, functioning of RS MUP — Routinely giving orders — Contribution to criminal purposes of RS MUP having element of recklessness — Voluntarily joining RS MUP — Defendant’s state of mind leading-up to departure from RS MUP not reflecting air of coercion or moral involuntariness — No tension reflected between fear for defendant’s personal safety, continuing complicity in crimes — Defendant not compelled to commit crimes against humanity — Declarations granted.

Evidence — Plaintiffs seeking declarations of inadmissibility against defendant pursuant to Citizenship Act , ss. 10.1(1) , 10.2 , 10.5(1) in force at time statement of claim served, filed — Witnesses for proceeding herein testifying from embassy in Belgrade — Not necessary to administer oath to foreign witnesses in accordance with Serbian law or in presence of Serbian judge or lawyer — Sufficient to administer oath in manner contemplated by Canada Evidence Act , ss. 52 , 53 . This was an action by the plaintiffs seeking various declarations of inadmissibility against the defendant pursuant to subsection 10.1(1),

section 10.2 and subsection 10.5(1) of the version of the Citizenship Act that was in force at the time they served and filed their statement of claim. In 1991, the defendant was appointed to the position of Deputy to the Assistant Minister of Internal Affairs of the Republic of Bosnia and Herzogovina (SRBiH MUP), which had jurisdiction over public and state security services in the republic. In January 1992, the Assembly of the Serb People in Bosnia and Herzegovina proclaimed the Serb Republic of Bosnia and Herzegovina (RS).

A few weeks later a new law creating the Ministry of Internal Affairs of the Bosnian Serb Republic (RS MUP) came into force. In April, Serbs (including the defendant) who had refused to comply with orders to continue fulfilling their responsibilities to the SRBiH MUP were fired from that organization, the Bosnian war broke out, and the defendant was appointed to the position of Under-Secretary for Public Security of the RS MUP. The defendant held that position for at least five months, i.e., from the outbreak of the war until September 1992.

During his time as Under-Secretary of the RS MUP, the defendant was responsible for, among other things, the defence of a police academy. In 1995, the defendant applied for, and was granted, permanent residence in Canada as a member of the refugee class. He went on to become a Canadian citizen in 1999. In 2016, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia sentenced the Minister of the RS MUP, as well as one of the defendant’s direct subordinates, to imprisonment for war crimes.

The plaintiffs alleged that there were reasonable grounds to believe that the defendant was inadmissible to Canada (1) for having been a prescribed senior official in the service of a government that engaged in systematic or gross human rights violations, genocide, war crimes and crimes against humanity, within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act ( CAHWCA ), and (2) for having been complicit in the commission of acts outside Canada that constitute an offence referred to in sections 6 and 7 of the CAHWCA . The plaintiffs sought, for the purposes of

section 10.2 , and subsections 10.1(1) and 10.5(1) of the Citizenship Act , declarations that the defendant obtained permanent resident status and his citizenship by false representation or fraud, or by knowingly concealing material circumstances. The plaintiffs also sought declarations that the defendant was inadmissible under paragraphs 19(1)(

l) and (

j) of the Immigration Act , and under paragraphs 35(1) (

a) and (

b) of the Immigration and Refugee Protection Act ( Act ). The defendant maintained that he did not make false representations on his permanent residence application, i.e. by failing to disclose his career as a police officer, and the position that he held in the RS MUP, with the intention of misleading immigration officials

who would be reviewing his application. Rather, he omitted mentioning his history because he was afraid that he and his family would be harmed. The defendant also submitted, inter alia , that to the extent that “prescribed senior officials” (as defined in

section 16 of the Immigration and Refugee Protection Regulations ) may be inadmissible merely by virtue of their position in a designated or non- designated government, this is inconsistent with the Supreme Court’s teachings in Ezokola v. Canada (Citizenship and Immigration) . While the defendant acknowledged that the RS MUP committed crimes against humanity during the time that he was the Under- Secretary of that organization, he took issue with the plaintiffs’ allegation that he was complicit in those crimes.

At issue was whether the defendant became a permanent resident by false representation or fraud or by knowingly concealing material circumstances, and subsequently obtaining his citizenship; whether the defendant was inadmissible on grounds of violating human or international rights, as set forth in paragraph 35(1) (

b) of the Act ; and whether the defendant was inadmissible on grounds of violating human or international rights, as set forth in paragraph 35(1) (

a) of the Act . Held , the declarations should be granted. A preliminary issue was first addressed pertaining to the swearing-in of four witnesses who testified herein from the Canadian embassy in Belgrade. It was not necessary to ensure that the foreign witnesses were administered oaths in accordance with Serbian law or in the presence of someone occupying the position of judge or lawyer in that country.

It was sufficient that those witnesses had their oaths administered in the manner contemplated by sections 52 and 53 of the Canada Evidence Act , namely, by a Consul while performing one of his functions at the embassy. Turning to the heart of the matter, the defendant knowingly concealed material circumstances from his permanent residence application, including that he resided in Bosnia between April and December 1992, had a police career in the SRBiH MUP, and was Under-Secretary of the RS MUP. These facts were material circumstances, within the meaning of subsection 10.1(1) of the Citizenship Act .

They would either have led to the screening out of the defendant’s application, or to further inquiries with respect to his potential involvement in the genocide, war crimes and crimes against humanity that were known to have been perpetrated by the RS MUP. Had the defendant disclosed the fact that he had been a senior member of the RS government, more inquiries would have been made. The defendant failed to disclose those facts out of fear that he would be harmed by a paramilitary group.

This did not negate the reasonable inference that the defendant “knowingly” concealed material circumstances related to his permanent residence application. The mental element contemplated by the word “knowing” in

section 10.1 is the concealing of information with the intention to deceive, to hide that information from immigration authorities. The defendant specifically did not want anyone in the embassy to know about his links to the RS MUP and the SRBiH MUP. This is very different from innocently forgetting to include material information, providing inaccurate information because of an honest translation error, or omitting information because it was genuinely considered to be inconsequential.

The defendant did not identify any authority in support of the proposition that the knowing concealment of material circumstances, with the intention to deceive Canadian immigration authorities, can be justified. While such concealment may be justifiable in exceptional circumstances (i.e. where the application is completed under duress or where the defence of necessity applies), there was no persuasive evidence that the defendant’s application was completed under such circumstances. Where refugee protection is sought, an applicant must disclose the basis for his fear of persecution.

In light of the above, the defendant was held to have become a permanent resident in Canada (and subsequently a citizen thereof) by knowingly concealing material circumstances on his permanent residence application. The first two declarations sought by the plaintiffs were therefore granted. The defendant was also declared inadmissible on grounds of violating human or international rights, as set forth in paragraph 35(1) (

b) of the Act . A person who is “a prescribed senior official” as described in that provision and in

section 16 of the Immigration and Refugee Protection Regulations is inadmissible on that ground alone. No further factual inquiry is required. While the Supreme Court in Ezokola v. Canada (Citizenship and Immigration) rejected the proposition that “high high-ranking government officials” should be “exposed to a form of complicity by association”, Ezokola did not deal with inadmissibility under paragraph 35(1) (b), but rather with the issue of whether an individual can be excluded from refugee protection under

section 98 of the Act . Ezokola has no application to paragraph 35(1) (b). It is within Parliament’s power to legislate that permanent residents and foreign nationals are inadmissible by virtue of holding a prescribed senior position within a government that has engaged in the crimes referred to in paragraph 35(1) (b).

Section 42.1 of the Act permits the Minister to declare that the matters referred to in paragraph 35(1) (

b) do not constitute inadmissibility, if a foreign national is able to satisfy the Minister that his or her admission is not contrary to the national interest. However,

section 42.1 is an exception to paragraph 35(1) (

b) that operates only where, on application by a foreign national, the Minister makes such a declaration. There is nothing in

section 42.1 or elsewhere in the Act , the former Immigration Act or the Citizenship Act that provides or provided the Court with jurisdiction to take account of national interest considerations in conducting the assessment contemplated by subsection 10.5(1) of the Citizenship Act . The evidence demonstrated that there were reasonable grounds to believe that the defendant was in fact a “senior member” of both the military and the internal security service of the RS government. The declaration sought by the plaintiffs in respect of paragraph 35(1) (

b) was therefore issued. Finally, there were reasonable grounds to believe that the defendant was complicit in the RS MUP’s crimes against humanity, pursuant to paragraph 35(1) (

a) of the Act . Crimes against humanity can be committed either directly, or by complicity. Individuals may be complicit in international crimes without a link to a particular crime. However, “there must be a link between the individuals and the criminal purpose of the group”. For the purposes of paragraph 35(1) (a), that link is established where there are reasonable grounds to believe that the individual in question “has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose”.

This is established by examining certain factors such as the size and nature of the organization, the individual’s duties and activities within the organization and his position and rank. The RS MUP’s “combat” operations played a critical role in the war. Communications within the RS MUP were such that the defendant likely was aware of the crimes against humanity that were being perpetrated by the RS MUP while he was the Under-Secretary. The defendant was the head of the branch of the RS MUP that was responsible for public security.

That branch was also heavily involved in combat activities during the time that he held that position. Parts of the public security branch of the RS MUP were involved in the perpetration of crimes against humanity. The defendant was actively involved in the establishment of the RS MUP, its subsequent structuring and coordination, its steering council, and in several important aspects of its functioning. He routinely gave orders, both orally and in writing. These included orders pertaining to the eviction of Muslims from their homes and the arrests of opponents.

Insofar as the defendant may not have been aware of some of the crimes against humanity that were perpetrated by the RS MUP while he held the position of Under-Secretary of that organization, he was nevertheless complicit in those crimes, because his contribution to the criminal purposes of the RS MUP had a significant element of recklessness. Finally, the defendant voluntarily

joined the RS MUP. His state of mind in the lead-up to his departure from the RS MUP did not reflect the slightest air of coercion ormoral involuntariness. The evidence did not suggest any tension whatsoever between a fear for his personal safety and continuing to becomplicit in heinous crimes. In brief, the defendant did not established on a balance of probabilities, inter alia, that he was subjected toany explicit or implicit threat of death or bodily harm made for the purpose of compelling him to commit crimes against humanity.

Atthe time he voluntarily joined the RS MUP, he ought to have known that he would be exposed to the very risk of compulsion to obeyorders and to remain with the organization, that he now relied upon in asserting this defence. Given the foregoing, the declaration soughtby the plaintiffs in respect of paragraph 35(1)(

a) of the Act was granted. STATUTES AND REGULATIONS CITED

An Act to amend the Citizenship Act and to make consequential amendments to another Act, S.C. 2017, c. 14, s. 19.1(2). Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 52, 53. Citizenship Act, R.S.C., 1985, c. C-29, ss. 3(2), 5(1)(c), 10.1, 10.2, 10.5, 10.7. Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, ss. 4–7, 6, 7, 33. Criminal Code, R.S.C., 1985, c. C-46, ss. 7(3.76),(3.77). Federal Courts Rules, SOR/98-106, r. 32. Immigration Act, R.S.C., 1985, c. I-2, ss. 9(3), 19(1)(j),(l). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 2(1), 33, 34, 35, 36, 42.1, 98.

Immigration and Refugee Protection Regulations, SOR/2002-227, s. 16. Immigration Regulations, 1978, SOR/78-172. Treaties and other instruments cited United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F. CASES CITED APPLIED: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; Canada (Citizenship andImmigration) v. Rogan, 2011 FC 1007, 396 F.T.R. 47; Canada (Citizenship and Immigration) v. Halindintwali, 2015 FC 390, 34 Imm.L.R. (4th) 182; Habeeb v.

Canada (Citizenship and Immigration), 2011 FC 253, 387 F.T.R. 57; Ezokola v. Canada (Citizenship andImmigration), 2013 SCC 40, [2013] 2 S.C.R. 678 as to inadmissibility under paragraph 35(1)(

a) of the Immigration and RefugeeProtection Act; Al-Naib v. Canada (Public Safety and Emergency Preparedness), 2016 FC 723, 43 Imm. L.R. (4th) 235; R. v. Ryan, 2013SCC 3, [2013] 1 S.C.R. 14. DISTINGUISHED: Farzam v. Canada (Minister of Citizenship and Immigration), 2005 FC 1453, 282 F.T.R. 238; Ramnarine v. The Queen, [2002] 1 C.T.C.2213, (T.C.C.); Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 as toinadmissibility under paragraph 35(1)(

b) of the Immigration and Refugee Protection Act. CONSIDERED: Canada (Citizenship and Immigration) v. Rubuga, 2015 FC 1073; Canada (Minister of Citizenship and Immigration) v. Seifert, 2007 FC1165, 54 C.R. (6th) 125; Canada (Minister Citizenship and Immigration) v. Kassab, 2020 FCA 10, 441 D.L.R. (4th) 369; Kanagendrenv. Canada (Citizenship and Immigration), 2015 FCA 86, [2016] 1 F.C.R. 428; Oberlander v. Canada (Attorney General), 2009 FCA330, [2010] 4 F.C.R. 395. REFERRED TO: Canada (Citizenship and Immigration) v. Odynsky, 2001 FCT 138, 196 F.T.R. 1, [2001] F.C.J.

No. 286 (QL); Canada (Citizenship andImmigration) v. Savic, 2014 FC 523, [2015] 3 F.C.R. 209; Canada (Minister of Citizenship and Immigration) v. Schneeberger, 2003 FC970, [2004] 1 F.C.R. 280; Mella v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1587; Canada (Minister ofCitizenship and Immigration) v. Adam, (FCA), [2001] 2 F.C. 337, (2001), 196 D.L.R. (4th) 497, [2001] F.C.J. No.25 (QL) (C.A.); Sekularac v. Canada (Citizenship and Immigration), 2018 FC 381; Sherzai v. Canada (Citizenship and Immigration),2016 FC 166, 43 Imm. L.R. (4th) 332; Younis v.

Canada (Citizenship and Immigration), 2010 FC 1157; Tareen v. Canada (Citizenshipand Immigration), 2015 FC 1260, 260 A.C.W.S. (3d) 563; Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, [1992] F.C.J. No. 109 (QL) (C.A.); Gil Luces v. Canada (Public Safety and Emergency Preparedness),2019 FC 1200; L’Espérance v. Canada (Attorney General), 2016 FC 19; Prosecutor v. Mico Stanisic and Stojan Zupljanin, ICTY, CaseNo. IT-08-91-T (27 March 2013); Prosecutor v. Mico Stanisic and Stojan Zupljanin, ICTY, Case No IT-08-91-A (30 June 2016);Prosecutor v. Momcilo Krajisnik, ICTY, Case No.

IT-00-39-T (27 September 2006); Mata Mazima v. Canada (Minister of Citizenshipand Immigration), 2016 FC 531; Hadhiri v. Canada (Minister of Citizenship and Immigration), 2016 FC 1284; Durango v. Canada(Minister of Citizenship and Immigration), 2018 FC 146; Sarwary v. Canada (Minister of Citizenship and Immigration), 2018 FC 437;Oberlander v. Canada (Attorney General), 2018 FC 947, [2019] 1 F.C.R. 652; Equizabal v. Canada (Minister of Employment andImmigration), (FCA), [1994] 3 F.C. 514, [1994] F.C.J. No. 897 (QL) (C.A.).

ACTION by the plaintiffs seeking various declarations of inadmissibility against the defendant pursuant to subsection 10.1(1),

section 10.2 and subsection 10.5(1) of the version of the Citizenship Act that was in force at the time they served and filed their statement of claim. Declarations granted. APPEARANCES Geneviève Bourbonnais and Anne-Renée Touchette for plaintiffs. Deborah Enokou , Khadi Ndiaye and Nadia Kuevidjen for defendant. SOLICITORS OF RECORD Deputy Attorney General of Canada for plaintiffs. Ndiaye Enokou Avocats S.E.N.C.R.L. , Gatineau, Québec, for defendant. The following are the reasons for judgment and judgment rendered in English by Crampton C.J.: I. Introduction [ 1 ] War can bring out the worst in people.

Some do things that they later regret, perhaps deeply so. Others may act in ways that haunt, shame or torment them for the rest of their lives. They may understandably want to hide such things, from others and indeed themselves, as they endeavour to build a new life for themselves and their progeny, some of whom may have come along well after the distant events. [ 2 ] Yet, as much as compassion for such people can reflect a virtuous aspect of the human spirit, a civilized society cannot turn its back on the victims of distant crimes.

Not even after decades of law abiding behaviour and hard-working contributions to society by those who may have been complicit in such crimes. The light of the law must be allowed to shine on all of the circumstances surrounding dark deeds that may later be discovered, so that the role of those who may have been involved can be scrutinized for what it was and was not. [ 3 ] In this proceeding, the plaintiff ministers allege that Mr.

Kljajic obtained refugee protection, permanent residence, and ultimately citizenship in this country by concealing his former high-ranking position of Under-Secretary of the Ministry of Internal Affairs of the Bosnian Serb Republic (the “RS MUP”). They further allege that he explicitly, and falsely, denied any involvement in the commission of any war crime or crime against humanity. [ 4 ] In addition, they allege that there are reasonable grounds to believe that Mr.

Kljajic is inadmissible to Canada on two grounds: ● First, for having been a prescribed senior official in the service of a government that, in the opinion of the Minister, engaged in systematic or gross human rights violations, genocide, war crimes and crimes against humanity, within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 (the “ CAHWCA ”), as contemplated by paragraph 35(1) (

b) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “ IRPA ”). ● Second, for having been complicit in the commission of acts outside Canada that constitute an offence referred to in sections 6 and 7 of the CAHWCA , and as contemplated by paragraph 35(1) (

a) of the IRPA . [ 5 ] At the time Mr. Kljajic sought refugee status and permanent residence in this country, the Bosnian Serb government was designated as a government described under paragraph 19(1)(

l) of the Immigration Act , R.S.C., 1985, c. I-2 (the “ Immigration Act ”), i.e., a government generally described above. However, given that the CAHWCA had not yet been enacted, the crimes were defined by reference to subsection 7(3.76) of the Criminal Code , R.S.C., 1985, c. C-46 (the “ Criminal Code ”). For the present purposes, the differences between the latter provision and subsections 6(3) to (5) of the CAHWCA are not material: Mugesera v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 40 , [2005] 2 S.C.R. 100 ( Mugesera ), at paragraph 118 . [ 6 ] Given the above, the plaintiffs seek various declarations against Mr. Kljajic pursuant to subsection 10.1(1),

section 10.2 and 10.5(1) of the version of the Citizenship Act , R.S.C., 1985, c. C-29 (the “ Citizenship Act ”), that was in force at the time they served and filed their statement of claim. [ 7 ] For the reasons that follow, those declarations will be granted, with certain modifications. In brief, I have concluded that: i. Mr. Kljajic became a permanent resident of Canada by false representation or fraud or by knowingly concealing material circumstances with respect to a fact described in

section 35 of the IRPA ; ii. Because of having acquired permanent resident status, Mr. Kljajic subsequently obtained citizenship in Canada, and therefore is presumed, pursuant to

section 10.2 of the Citizenship Act , to have obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances with respect to a fact described in

section 35 of the IRPA ; iii. Mr. Kljajic is inadmissible to Canada pursuant to paragraph 35(1) (

b) of the IRPA , because there are reasonable grounds to believe that he was a prescribed senior official of a government described in that provision (and at paragraph 4 above); and iv. Mr. Kljajic is inadmissible to Canada pursuant to paragraph 35(1) (

a) of the IRPA , because he was complicit in the crimes against humanity that were perpetrated by the RS MUP against non-Serbs during the period that he was the Under-Secretary of that

organization. II. Background [ 8 ] The following background information was provided in an expert report prepared on behalf of the plaintiffs by Dr. Christian Axboe Nielsen. This particular information was not contested by Mr. Kljajic. [ 9 ] The Socialist Federal Republic of Yugoslavia (Yugoslavia) was established in 1945, following the Second World War.

Throughout its existence of approximately 45 years, it consisted of six republics: Slovenia, Croatia, Bosnia and Herzegovina (“B&H” also sometimes referred to simply as “Bosnia”), Serbia, Montenegro and Macedonia. [ 10 ] During the Second World War, several large massacres of the civilian population were perpetrated in Bosnia, including during internal conflicts between the Serb, Croat and Muslim ethnic groups. [ 11 ] Following that war, Yugoslavia was tightly controlled by the Communist Party of Yugoslavia, later known as the League of Communists of Yugoslavia.

However, in the wake of the fall of the Berlin Wall in late 1989, the grip of the communists waned. In B&H, this led to multi-party elections in November 1990. Three ethnically defined anti-communist parties—the Serb Democratic Party (the “SDS”), the Croat Democratic Union (the “HDZ”) and the Muslim Party of Democratic Action (the “SDA”)—emerged as the main victors.

Shortly afterwards, they reached an agreement to divide various government positions, including those related to policing and security, based on the electoral results. [ 12 ] In principle, the SDS, HDZ and SDA agreed that it was desirable for the ethnic composition of the police in any given municipality to match the ethnic composition of the population of that municipality.

Nevertheless, negotiations regarding appointments quickly became protracted and acrimonious. [ 13 ] Policing in the socialist republic of B&H was under the jurisdiction of the Ministry (or Secretariat) of Internal Affairs (the “SRBiH MUP”), which had two main branches: the public security service and the state security service. The public security service encompassed the most common types of policing, including criminal investigations and the maintenance of law and public order.

The state security service (colloquially known as the “secret police” ) was responsible for protecting the constitutionally established order from internal and external threats. Leadership and other positions in both branches of the SRBiH MUP were particularly coveted by those who were in charge of the SDS, HDZ and SDA, respectively. This was because of that Ministry’s access to arms and electronic surveillance equipment, and the critical role it played in controlling the public. [ 14 ] Over the course of 1991, the political and security situation in B&H continued to deteriorate.

Among other things, this was due to (

i) the declarations of independence that were made that year by the Republic of Slovenia and the Republic of Croatia, (ii) the adverse impact that those declarations had on relations between the Croat, Muslims and Serbian peoples, and (iii) disputes among the SDS, HDZ and SDA relating to positions in the SRBiH MUP and elsewhere. This led to a parliamentary crisis in October, after Bosnian Muslim and Bosnian Croat deputies voted to become a sovereign state. This was strongly opposed by the Serb deputies, who considered that it was in the best interest of Serbs in B&H to remain with Yugoslavia.

Among other things, the Serbs were very concerned because they were an ethnic minority in large areas of B&H, including much of the northern, western and southeastern regions of B&H. [ 15 ] Given the separatist direction that the Muslim and Croat members of the Bosnian Assembly had decided to take, the SDS unilaterally withdrew from the Assembly. In a speech explaining this action, the SDS’s President, Radovan Karadzic, told the Muslim members of Assembly that if they continued to pursue a path towards independence, they would be “pursuing a path that leads to hell” .

He then rhetorically asked whether they realized that “pursuing independence might well lead to their physical extermination” : Court transcript, Vol. 1, at page 131 (testimony of Dr. Nielsen). [ 16 ] In the meantime, in September 1991, Mr.

Kljajic was appointed to the position of Deputy to the Assistant Minister of the SRBiH MUP, a position which included the position of Chief of Police for B&H. (He had previously held a number of policing positions in the SRBiH, dating back to at least 1979.) [ 17 ] Following a referendum vote by the Bosnian Serbs in November 1991 to remain in Yugoslavia, the SDS quickly took steps to establish a political entity with all of the characteristics of a state, including its own police force.

To this end, the SDS issued a document in December 1991, entitled “Instructions for the Organization and Operation of Organs of the Serbian People in [B&H] in Emergency Conditions”, which set out a detailed set of steps to be taken. Those steps included the takeover of SRBiH MUP staff, buildings and equipment, and their integration within what would become the RS MUP.

This applied to areas in which the Serbs were a majority (“Variant A” areas) as well as to areas in which they were a minority (“Variant B” areas), although the approach to be taken in those two types of areas differed in some respects. [ 18 ] In January 1992, the Assembly of the Serb People in Bosnia and Herzegovina (the “RS Assembly”) then proclaimed the Serb Republic of Bosnia and Herzegovina (the “Republic of Srpska” or “RS”). (The Republic of Srpska is not to be confused with Serbia, one of the original six republics of the former Yugoslavia, which is located immediately to the east of B&H.) The following month, the Bosnian Serbs boycotted a second referendum that resulted in a vote to become independent from Yugoslavia.

On March 18, 1992, the President of the Assembly, Momcilo Krajisnik, referred to the need for “ethnic separation on the ground” . Shortly afterwards, on March 27, 1992, the RS Assembly proclaimed the Constitution of the Serb Republic of Bosnia and Herzegovina and established a National Security Council, chaired by the Republic’s President, Radovan Karadzic. [ 19 ] A few days later, on March 31, 1992, and after the SDS had created a parallel policing organization covering many areas of the RS, a new law creating the RS MUP came into force.

The next day, the RS MUP proclaimed itself to have sole police jurisdiction throughout the RS. On approximately April 5, Serbs (including Mr. Kljajic) who had refused to comply with orders to continue fulfilling their responsibilities to the SRBiH MUP were fired from that organization, the Bosnian war broke out, and Mr. Kljajic was appointed to the position of Under-Secretary for Public Security of the RS MUP. [ 20 ] It appears to be common ground between the parties that Mr. Kljajic held the latter position for at least approximately five

months, i.e., from virtually the outbreak of the war in early April 1992 until September of that year. (The plaintiffs maintain that he stayed in that position until November of that year, when he left Bosnia to become a lawyer in Belgrade. This will be further discussed in

part VIII.C.(2)(

v) of these reasons below.) [ 21 ] During his time as Under-Secretary of the RS MUP, Mr. Kljajic was initially located in Vraca, a suburb of Sarajevo. While he was there, he was, among other things, responsible for the defence of the police academy, where he was located. Sometime in the first half of June 1992, he transferred to Pale, the principal headquarters of the RS MUP, before they were moved to Bijeljina later that month. He remained in the latter location until he left the RS MUP sometime in the Fall of 1992. [ 22 ] In February 1995, Mr.

Kljajic applied for permanent residence in Canada as a member of the refugee class. In August of that year, his application (the “PR Application”) was granted. He then became a Canadian citizen in November 1999. [ 23 ] In June 2016, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (the “ICTY”) sentenced the Minister with whom Mr. Kljajic worked at the RS MUP, Mr.

Mico Stanisic, to 22 years’ imprisonment for having committed “through participation in a joint criminal enterprise (JCE), persecutions as a crime against humanity and murder and torture as violations of the laws or customs of war” . (Christian Axboe Nielsen, Report on the Establishment and Performance of the Ministry of Internal Affairs of Republika Srpska in Bosnia and Herzegovina, 1990-1992 (the “Nielsen Report”), at paragraph 233, quoting the ICTY Case Information Sheet IT-08-91.) On the same date, the Appeals Chamber of the ICTY imposed a similar sentence, for that same crime plus others, against a person who is alleged to have been one of Mr.

Kljajic’s direct subordinates, namely, Mr. Stojan Zupljanin. [ 24 ] Given that I will be discussing certain interactions that Mr. Kljajic had with Radovan Karadzic, the President of Republika Srpska during the Bosnian War, I will simply note in passing that Mr. Karadzic was convicted and sentenced by the Trial Chamber of the ICTY to 40 years of imprisonment for genocide, crimes against humanity, and violations of the laws or customs of war. III. Relief sought by plaintiffs [ 25 ] In their statement of claim, the plaintiffs sought five declarations. [ 26 ] The first two concerned the allegations that Mr.

Kljajic obtained permanent residence in Canada by false representation or fraud, or by knowingly concealing material circumstances. In this regard the plaintiffs sought declarations, for the purposes of

section 10.2 of the Citizenship Act , that Mr. Kljajic obtained permanent resident status in this manner because, had he been truthful with Canadian immigration officials when he applied for permanent residence in 1995, he would have been found inadmissible: i. under paragraph 19(1)(

l) of the Immigration Act , on the grounds that he was a senior member in the service of a government that was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code , as it then was; and ii. under paragraph 19(1)(

j) of the Immigration Act , as a person who there are reasonable grounds to believe has committed

an act or omission outside Canada that constitutes a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code , as it then was. [ 27 ] In their final submissions, the plaintiffs consolidated the two declarations described above into a single, more streamlined, requested declaration. In this regard, they now request, for the purposes of

section 10.2 of the Citizenship Act , a declaration that Mr. Kljajic obtained permanent resident status in Canada by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in

section 35 of the IRPA . [ 28 ] The third declaration sought in the plaintiffs’ statement of claim also relates to an alleged false representation or fraud or knowing concealment. In particular, the plaintiffs seek a declaration, pursuant to subsection 10.1(1) of the Citizenship Act , that Mr. Kljajic obtained Canadian citizenship in the manner described in the immediately preceding paragraph. [ 29 ] The fourth and fifth declarations sought by the plaintiffs in their statement of claim concern Mr. Kljajic’s alleged inadmissibility to Canada under paragraphs 35(1) (

a) and (

b) of the IRPA , respectively. Specifically, the plaintiffs seek declarations, pursuant to subsection 10.5(1) of the Citizenship Act , that Mr. Kljajic is inadmissible: i. under paragraph 35(1)(a), on grounds of committing

an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the CAHWCA ; and ii. under paragraph 35(1)(b), on grounds of his being a prescribed senior official in the service of a government that, in the opinion of the Minister of Immigration, Refugees and Citizenship Canada, engages in or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the CAHWCA . IV.

Relevant legislation [ 30 ] This proceeding raises issues under the Citizenship Act , the IRPA and its predecessor (the Immigration Act ), the CAHWCA and the Criminal Code . [ 31 ] To determine which legislation applies to which issues, it has been considered to be helpful to distinguish between a defendant’s substantive rights and his or her procedural rights: Canada (Citizenship and Immigration) v. Rogan , 2011 FC 1007 , 396 F.T.R. 47 ( Rogan ), at paragraphs 17–23 ; Canada (Citizenship and Immigration) v. Halindintwali , 2015 FC 390 , 34 Imm. L.R. (4th) 182 ( Halindintwali ), at paragraphs 24–25 . A. Mr.

Kljajic’s substantive rights [ 32 ] Insofar as Mr. Kljajic’s acquisition of Canadian citizenship is concerned, his substantive rights are governed by the citizenship

legislation that was in force on November 30, 1999, when he obtained his Canadian citizenship, namely, the Citizenship Act , R.S.C., 1985, c. C - 29 , as amended (the “ Citizenship Act , 1985”): Rogan , above, at paragraph 21 . Insofar as his prior acquisition of permanent resident status is concerned, his substantive rights are governed by the immigration legislation that was in force on August 8, 1995, when he obtained his permanent resident status, namely, the Immigration Act , R.S.C., 1985, c.

I-2, as amended (the “Immigration Act, 1985”): Rogan , above, at paragraphs 23 and 247 ; Halindintwali , above, at paragraph 25 . Given that one of the relevant provisions of the latter legislation referred to the Criminal Code , it is also necessary to consider the version of that enactment that was in force at that time, namely, the Criminal Code , R.S.C., 1985, c.

C-46 , as amended. [ 33 ] For the purposes of this proceeding, the relevant substantive provision of the Citizenship Act, 1985 is paragraph 5(1) (c), which contemplated a grant of citizenship to any person who, among other things, “has been lawfully admitted to Canada for permanent residence” . [ 34 ] Regarding the Immigration Act, 1985, there are three substantive provisions that are relevant in this proceeding. The first is subsection 9(3), which stated as follows: 9. …

(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. [ 35 ] The two other provisions of that legislation that are relevant in this proceeding are paragraphs 19(1)(

j) and (l), which stated the following: Inadmissible classes 19(1) No person shall be granted admission who is a member of any of the following classes: (

j) persons who there are reasonable grounds to believe have committed

an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission. … (

l) persons who are or were senior members of or senior officials in the service of a government that is or was, in the opinion of the Minister, engaged in terrorism, systematic or gross human rights violations or war crimes or crimes against humanity within the meaning of subsection 7(3.76) of the Criminal Code , except persons who have satisfied the Minister that their admission would not be detrimental to the national interest. [ 36 ] With respect to the Criminal Code , 1985, the relevant provisions are subsections 7(3.76) and 7(3.77) . The former defined the terms “conventional international law” , “crime against humanity” and “war crime” . Subsection 7(3.77) provided that, in the

definitions of those three terms, the phrase “‘act or omission’ includes, for greater certainty, attempting or conspiring to commit, counselling any person to commit, aiding or abetting any person in the commission of, or being an accessory after the fact in relation to,

an act or omission.” The full text of subsections 7(3.76) and (3.77) is set forth in Appendix 1 below. [ 37 ] If a person’s Canadian citizenship is revoked, it becomes relevant to consider whether the person is inadmissible to Canada on any of the grounds set forth in the IRPA . For the purposes of this proceeding, there are two such grounds, namely those set forth in paragraphs 35(1) (

a) and (b), respectively. Pursuant to those provisions, a permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for: Human or international rights violations 35 (1) … (

a) committing

an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act ; (

b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act . [ 38 ] Pursuant to

section 33 of the IRPA , “[t]he facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred or are occurring or may occur.” [ 39 ] With respect to the CAHWCA , the plaintiffs only seek a declaration in respect of

section 6 . Subsections 6 (1), 6(1.1) and (2) state as follows: OFFENCES OUTSIDE CANADA Genocide, etc., committed outside Canada 6

(1) Every person who, either before or after the coming into force of this section, commits outside Canada (

a) genocide,

(

b) a crime against humanity, or (

c) a war crime, is guilty of an indictable offence and may be prosecuted for that offence in accordance with

section 8. Conspiracy, attempt, etc.

(1.1) Every person who conspires or attempts to commit, is an accessory after the fact in relation to, or counsels in relation to, an offence referred to in subsection (1) is guilty of an indictable offence. Punishment

(2) Every person who commits an offence under subsection (1) or (1.1) (

a) shall be sentenced to imprisonment for life, if an intentional killing forms the basis of the offence; and (

b) is liable to imprisonment for life, in any other case [ 40 ] For the purposes of the provisions quoted immediately above,

definitions of the terms “crime against humanity” , “genocide” and “war crime” are set forth in subsection 6(3) of the CAHWCA , which is reproduced at Appendix 1 to these reasons. B. Mr. Kljajic’s procedural rights [ 41 ] The parties to this proceeding submitted that Mr.

Kljajic’s procedural rights are governed by the version of Canada’s citizenship legislation that was in force at the time the plaintiffs served and filed their statement of claim on August 29, 2017 (defined above as the Citizenship Act ): Rogan , above, at paragraph 17 ; Halindintwali , above, at paragraph 24 . [1] [ 42 ] However, pursuant to subsection 19.1(2) of Bill C-6 [ An Act to amend the Citizenship Act and to make consequential amendments to another Act , S.C. 2017, c. 14 ], a proceeding that was pending before this Court prior to the day on which subsection 3(2) came into force is to be dealt with and disposed of in accordance with the version of the Citizenship Act that was in force immediately before that day.

Subsection 3(2) came into force on January 24, 2018. Accordingly, the version of the Citizenship Act that applies in this proceeding is the version that was in force on January 23, 2018. Nothing turns on this, as the language of sections 10.1 , 10.2 and 10.5 of the Citizenship Act did not change between August 29, 2017, and January 23, 2018. [ 43 ] As noted at paragraph 27 above, the first of the revised list of four declarations sought by the plaintiffs is a declaration under

section 10.2 of the Citizenship Act .

That provision states as follows: Presumption 10.2 For the purposes of subsections 10(1) and 10.1(1) , a person has obtained or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances if the person became a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act , by false representation or fraud or by knowingly concealing material circumstances and, because of having acquired that status, the person subsequently obtained or resumed citizenship. [ 44 ] The second of the declarations now sought by the plaintiffs is under subsection 10.1(1), which states: Revocation for fraud — declaration of Court 10.1

(1) Unless a person makes a request under paragraph 10(3.1)(b), the person’s citizenship or renunciation of citizenship may be revoked only if the Minister seeks a declaration, in an action that the Minister commences, that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances and the Court makes such a declaration. [ 45 ] I pause to note that, pursuant to subsection 10.2(3), a declaration made under subsection 10.1(1) has the effect of revoking a person’s citizenship. [ 46 ] Under subsection 10.1(4), for the purposes of subsection 10.1(1), the Minister need prove only that the person obtained his or her citizenship by false representation or fraud or by knowingly concealing material circumstances. [ 47 ] The third and fourth declarations sought by the plaintiffs are under subsection 10.5(1), which states: Inadmissibility 10.5

(1) On the request of the Minister of Public Safety and Emergency Preparedness, the Minister shall — in the originating document that commences an action under subsection 10.1(1) on the basis that the person obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances, with respect to a fact described in

section 34 , 35 or 37 of the Immigration and Refugee Protection Act other than a fact that is also described in paragraph 36(1)(

a) or (

b) or (2)(

a) or (

b) of that Act — seek a declaration that the person who is the subject of the action is inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality under, respectively, subsection 34(1) , paragraph 35(1) (

a) or (

b) or subsection 37(1) of the Immigration and Refugee Protection Act . [ 48 ] I will add in passing that pursuant to subsection 10.5(3), a declaration that a person is inadmissible on one of the grounds referred to in subsection (1) is a removal order against that person under the IRPA . Such an order comes into force when it is made, without the necessity of holding or continuing an examination or an inadmissibility hearing under the IRPA .

V. Preliminary issue [ 49 ] During a pre-trial case management teleconference that took place on December 4, 2019, legal counsel to the parties had a disagreement regarding the manner in which the four witnesses who testified in this proceeding from the Canadian embassy in Belgrade should be sworn-in. In brief, counsel to Mr. Kljajic submitted that those witnesses should be sworn-in in accordance with Serbian law, whereas counsel to the plaintiffs maintained that the witnesses could and should be sworn-in pursuant to sections 52 and 53 of the Canada Evidence Act , R.S.C., 1985, c.

C-5 (the “ CAE ”). [ 50 ] I agreed with counsel to the plaintiffs and undertook to explain why, in this decision. [ 51 ] Sections 52 and 53 of the CAE state the following: Application Application of this

Part 52 This Part extends to the following classes of persons: (

a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents; (

b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries; (

c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada; (

d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada; (

e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and (

f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada. Oaths and Solemn Affirmations Oaths taken abroad 53 Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in

section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act . [ 52 ] On a plain reading,

section 53 of the CAE provides authority for oaths and solemn affirmations to be administered outside Canada by any person mentioned in

section 52 , while performing their functions in any foreign country. When an oath or a solemn affirmation is administered by such a person in this manner, it is as valid and effectual, and is of like force and effect to all intents and purposes, as if it had been duly and properly administered in Canada. [ 53 ] In this proceeding, the person who administered the oaths of the witnesses who testified from Belgrade was Mr. François Lavertue. He holds the title of Consul in Canada’s embassy in Belgrade. He performed the oaths in the course of performing his functions at the embassy. Accordingly, he is a person described in

section 52 , and the oaths he administered were entirely valid and effectual, as described above.

I pause to note that those oaths were administered in person, and witnessed by video-conference by everyone who was present in the Ottawa courtroom where the trial took place. [ 54 ] Out of an abundance of caution, the witnesses mentioned above were also sworn-in by video-conference by the Registrar who was present in the courtroom in Ottawa. [ 55 ] Pursuant to rule 32 of the Federal Courts Rules , SOR/98-106 , the Court may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication.

When I verbally agreed to the parties’ requests, on consent, to have some of their witnesses testify from Belgrade, I implicitly gave such an order. That order was also implicitly contemplated by a verbal Direction, dated November 21, 2019, that I issued instructing counsel to provide submissions regarding the applicable law and related requirements for administering the oaths to the witnesses who would be testifying by video- conference from the Canadian embassy in Belgrade. [ 56 ] In response to that Direction, counsel to Mr.

Kljajic maintained that Serbian law applied to the administration of oaths in Belgrade. However, no evidence or information was provided regarding the content and requirements of that law. [ 57 ] Quoting this Court’s decision in Farzam v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1453 , 282 F.T.R. 238 ( Farzam ), at paragraph 49 , counsel to Mr. Kljajic maintained that it was “imperative that a witness who provides evidence in a

jurisdiction other than Canada do so under oath in accordance with our laws, as well as in accordance with local laws”. However, Farzamis distinguishable on several grounds. First and foremost, it does not appear that the foreign witness had planned to testify at a Canadianembassy. Accordingly, there was no discussion whatsoever of sections 52 and 53 of the CAE. Second, the witness there rejected thepossibility of testifying by video-conference, and proposed instead to testify by telephone. Third, the Court was not satisfied that various“technological barriers” could be overcome.

Fourth, the Court noted that several important logistical issues remained unanswered, and itwas not satisfied that they could be addressed in the short period that remained before trial. Finally, the Court was concerned that, in theparticular circumstances of the case, “[h]olding a teleconference … [could] only add to the length, costs and overall complexity of thisproceeding” (Farzam, above, at paragraph 48). [58] In addition, relying on both Farzam, above, and Ramnarine v.

The Queen, [2002] 1 C.T.C. 2213, (T.C.C.),counsel further maintained that the oaths in question should be administered in the presence of a Serbian judge or member of the bar inthat country. However, neither of those cases addressed the possibility that the foreign witness in question might be administered an oathor solemn affirmation by an officer of Her Majesty’s diplomatic or consular services, while performing their functions, as contemplatedby sections 52 and 53 of the CAE. This is a critical difference from the present proceeding. [59] Counsel to Mr.

Kljajic also expressed concern that, in the absence of the weight of the Serbian law applicable to theadministration of oaths, the foreign witnesses would not need to be concerned about the potential consequences of saying untruthfulthings. However, as a practical matter, it was not apparent to me that the potential consequences that the witnesses would perceivethemselves to face would be less if they testified from Belgrade than if they were to testify in Canada, and then return to Belgrade beforeany perjury proceeding could realistically be scheduled.

In both cases, Canadian courts would have subject matter jurisdiction over thewitnesses, but face potential challenges in exercising personal jurisdiction over them. [60] I pause to observe that swearing oaths on the Bible or a similar religious text, as each of the foreign witnesses in this case did,counts for something important. The same is true of solemn affirmations.

That is why these procedures continue to be maintained by theCourt. [61] Moreover, in contrast to the situation that prevailed as recently as a few short years ago, this Court now has high-quality video-conferencing equipment that permits the Court to properly assess a witness’s testimony, including by getting a good sense of thewitness’s body language and overall demeanor. I certainly found that to be the case in the present proceeding. [62] In

summary, it was not necessary to ensure that the foreign witnesses who testified in this proceeding were administered oaths inaccordance with Serbian law or in the presence of someone occupying the position of judge or lawyer in that country. It was sufficientthat those witnesses had their oaths administered in the manner contemplated by sections 52 and 53 of the CEA, namely, by a Consulwhile performing one of his functions at the Canadian embassy in Belgrade.

Out of an abundance of caution, each of those witnesses alsohad a second oath administered via video-conference by the Registrar who was present before me in the courtroom in Ottawa. Given thehigh quality of the video-conference link, I was able to effectively assess the credibility of each witness’ testimony. VI. Expert and lay evidence A. The plaintiffs’ witnesses [63] In this proceeding, one expert (Dr. Christian Axboe Neilsen) and two lay witnesses (Messrs Brian Casey and Milorad Davidovic)testified on behalf of the plaintiffs.

(1) Dr. Nielsen [64] Dr. Nielsen was qualified as an expert regarding the history of the police and the security apparatus in the former Yugoslavia, aswell as the role and functioning of the police in the RS MUP. In addition to providing extensive testimony, he authored the previouslymentioned Nielsen Report. [65] Dr. Nielsen’s professional experience includes having worked in the Leadership Research Team of the Office of the Prosecutor atthe ICTY. During his time at the ICTY, he was the analyst chiefly responsible for researching and analyzing the police in the RS.

Healso testified as an expert witness in, among other proceedings, four trials at the ICTY and one trial in this Court (Rogan, above). One ofthose ICTY proceedings was the joint trial of Mr. Kljajic’s immediate superior (Minister Mico Stanisic) and Mr. Kljajic’s allegedsubordinate, Mr. Stojan Zupljianin. The other ICTY proceeding was the trial of Radovan Karadzic. In Rogan, Dr. Nielsen’s evidencewas extensively embraced in the reasons for judgment provided by Justice Mactavish. His evidence was similarly embraced by theICTY. [66] In this current proceeding, Dr.

Nielsen testified with respect to the dispersion of majority and minority ethnic populations inB&H, the events that led to the Bosnian War, the power struggle between the principal political parties in B&H prior to the breakout ofthe war, and the steps that were taken by the Serbs to establish the RS and the RS MUP.

In addition, he addressed the types of peoplewho were sought for leadership positions in the RS MUP, the manner in which the SDS and the RS MUP went about establishingcontrol over areas that would become part of the RS, and the various ways in which communications were maintained within the RSMUP over the course of 1992. He also testified with respect to Mr.

Kljajic’s roles within the SRBiH MUP and the RS MUP, hisinvolvement in the establishment of the RS MUP, his relationships with various leaders within the RS MUP and Radovan Karadzic, thecrimes that were committed by the RS MUP and the alleged links between Mr. Kljajic and those crimes. [67] I found Dr. Nielsen’s testimony to be candid and very forthcoming. As with the Nielsen Report, I also found it to be reliable.Unless otherwise indicated in my reasons below, I generally accepted his evidence.

(2) Mr. Brian Casey [68] Mr. Casey was the second or third ranking person at the Canadian embassy in Belgrade from late 1990 to sometime in 1995.During that period, had the dual roles of Counsellor and Immigration Program Manager. In the former role, he was in charge of the

consular program. [ 69 ] As the Immigration Program Manager at the embassy, Mr. Casey was responsible for administering Canada’s refugee program in Belgrade. Among his qualifications for that position, he had an intimate understanding of the Immigration Act and the Regulations [ Immigration Regulations, 1978 , SOR/78-172], including the provisions pertaining to inadmissibility in paragraphs 19(1)(

j) and (

l) of the former enactment. He had a similar understanding of subsections 7(3.76) and 7(3.77) of the Criminal Code . Broadly speaking, his testimony focused on the process that was followed at the embassy when treating applications for refugee and permanent resident status in Canada, particularly after June 1993, when the RS was designated as a regime described under paragraph 19(1)(

l) of the Immigration Act . [ 70 ] As with Dr. Nielsen’s evidence, I found Mr. Casey’s testimony to be candid, forthcoming and reliable. That testimony primarily related to the plaintiffs’ allegation that Mr. Kljajic made false representations and knowingly concealed material circumstances when he completed his PR Application, and that this foreclosed or averted further inquiries with respect to that Application. For the purposes of my assessment of that issue, there were no noteworthy discrepancies between Mr. Casey’s evidence and Mr. Kljajic’s evidence. This was primarily because Mr.

Kljajic ultimately conceded in his final submissions that he made false representations in his PR Application for permanent residence in Canada. In addition, Mr. Casey did not specifically recall Mr. Kljajic’s PR Application, so there was not much scope for discrepancies to arise between his testimony and the evidence provided by Mr. Kljajic on that issue. [ 71 ] I will add for the record that Mr. Casey’s testimony on a very similar issue in Rogan was relied upon by Justice Mactavish in concluding that Mr.

Rogan had misrepresented a material fact and that this had the effect of foreclosing or averting further inquiries by Canadian immigration officials: Rogan , above, at paragraph 326 .

(3) Mr. Milorad Davidovic [ 72 ] Mr. Davidovic had a long police career with the SRBiH MUP that included being the commander of the police stations in Ilic and Bijeljina. After the elections in 1991, and after he refused to join the SDS, he was released from his duties by his Serb superiors within the SRBiH MUP in Bjeljina.

He then transferred to the federal security police in Belgrade, where he held the position of Chief Police Inspector. [ 73 ] Following the outbreak of the war, his duties included being sent to Vraca on three occasions, to assist in assessing and then meeting the RS MUP’s needs, including with respect to weapons and other equipment. His testimony focused on those three visits, as well as on the time he later spent Bijeljina, after Mr. Kljajic moved there in June 1992 as part of the transfer of the RS MUP’s headquarters to that city. More specifically, Mr. Davidovic’s testimony focused on his dealings with Mr.

Kljajic, Mr. Kljajic’s role and responsibilities within the RS MUP, his perception of Mr. Kljajic’s relationship with Minister Stanisic and those below him in the RS MUP’s hierarchy, the manner in which senior personnel within the RS MUP maintained communications after the outbreak of the war in April 1992, and Mr. Kljajic’s knowledge of crimes that were committed against the Muslim population in the RS. [ 74 ] As with the evidence provided by Dr. Nielsen and Mr. Casey, I found Mr. Davidovic’s testimony to be candid, forthcoming and reliable. B.

The defendant’s witnesses [ 75 ] Three lay witnesses testified on behalf of Mr. Kljajic, who also gave evidence on his own behalf.

(1) Mr. Dragomir Andan [ 76 ] Mr. Andan was a police inspector with the SRBiH MUP in Sarajevo prior to the outbreak of the war in April 1992. While he was in that position, he reported to Mr. Kljajic and was responsible for overseeing police operations throughout Eastern Bosnia. Following the capture of his police station in Sarajevo by Muslim forces later that month, Mr. Andan did not have a specific position for several weeks, until he was briefly transferred to Brcko, where he was a police inspector. At the request of Mr.

Kljajic, he was then transferred to Bijeljina, where he was responsible for ensuring security and public order, as well as containing the activities of Serbian paramilitary units. In the latter regard, he worked with Mr. Davidovic. [ 77 ] Mr. Andan’s testimony was very brief and focused on two things. First, he addressed the reporting structure within the RS MUP, and in particular his perception that police chiefs located at the regional police stations (CSBs) and others who were below Mr. Kljajic in the RSMUP’s hierarchy reported directly to Minister Stanisic.

However, he acknowledged that this perception was based on rumours that he heard after he was transferred to the army. As such, that testimony was inadmissible hearsay. [ 78 ] Secondly, Mr. Andan testified that Mr. Kljajic requested him to move to Bijeljina to assist in dismantling the Yellow Wasps and other paramilitary groups, and in preventing attacks against Muslims. However, on cross-examination, Mr. Andan conceded that many arrests and detentions of paramilitary group members were for crimes, such as theft, against Serbs. Mr.

Andan added that he received threats from some members of the Yellow Wasps that he had helped to capture, after some of them were released from detention in mid- 1992. Ultimately, I did not find Mr. Andan’s admissible evidence to be particularly reliable or credible where it was inconsistent with other evidence.

(2) Mr. Radomir Njegus [ 79 ] Mr. Njegus was Minister Stanisic’s Chief of Staff from approximately May 1992 until April 1994. His testimony focused on Mr. Kljajic’s de facto authority within the RS MUP. In particular, Mr. Njegus testified that, in reality, Mr. Kljajic was not capable of doing anything in his position. Mr. Njegus added that Mr. Kljajic did not give any orders, and that those below him in the RS MUP’s hierarchy reported directly to Minister Stanisic. He explained that this situation, together with his inability to protect Mr. Andan, the absence of support from the Minister and the fact that Mr.

Kljajic did not have a good relationship with the Minister, led Mr. Kljajic to become frustrated to the point that he ultimately quit the RS MUP.

[ 80 ] Mr. Njegus further noted that men who had a military obligation and who left the territory of the RS without authorization faced the prospect of sanction, imprisonment, transfer to the army and, he believed, “other disagreeable” consequences: transcript, Vol. 7, at page 19. [ 81 ] On cross-examination, Mr. Njegus was confronted with different testimony that he gave before the ICTY. There, he testified that Minister Stanisic’s closest associates from May 1992 until the end of 1992 were his two Under Secretaries, namely, Mr. Kljajic and Mr. Slobodan Skipina.

In that regard, he added the following in that proceeding: “Whether we wanted or not, it was not just on paper. That’s how things were” (Exhibit 383, at page 11302). He explained: “Under the law, I was directly answerable to Mr. Stanisic. But I have to be very honest and admit that, in factual terms, on a daily basis, I had much more communication with Kljajic ” (Exhibit 383, at page 11306.). He further explained that Mr. Stanisic delegated the authority to sign on his behalf to Mr. Kljajic, and that this authority included the power to further delegate to others below him (Mr.

Kljajic) (Exhibit 383, at page 11336). He then gave examples of such further delegation, to himself (Mr. Njegus) and to others. He later added that, in any event, “[t]he common practice was that everything issued from our offices in Vrac[a] at the time went out under the name of the minister, not the others, the under-secretary for public security or the chief of administration. You will rarely find any documents signed by chiefs of administrations. Most of the documents were signed [by] Mico Stanisic” (Exhibit 384, at page 11383). [ 82 ] Despite Mr.

Njegus’ repeated insistence that his testimony before both the ICTY and this Court was truthful and consistent, I do not consider that to be the case. In my view, there are important inconsistencies between Mr. Njegus’ testimony in this proceeding and his testimony before the ICTY, as set forth in the two paragraphs immediately above. Moreover, Mr. Njegus’ testimony that Mr. Kljajic was incapable of doing anything in his position and did not give any orders was also inconsistent with several other statements he made during the present proceeding. These included his statements that Mr. Kljajic (

i) ordered the arrest of someone named “Batko” , who was a well-known member of a paramilitary unit, (ii) was responsible for disarming a particular paramilitary unit, and (iii) was sent to Belgrade to put a stop to widespread misuse of official documents, such as passports, driver’s licences and vehicle permits. [ 83 ] Considering the foregoing, and the fact that Mr. Njegus repeatedly stated that he could not recall certain things, I did not find Mr. Njegus’ testimony to be candid, forthright, reliable or credible where it was inconsistent with other evidence.

(3) Mr. Dragan Kijac [ 84 ] Mr. Kijac was the Chief of Police in Sarajevo immediately prior to the outbreak of the Bosnian war in April 1992. After the creation of the RS MUP, he was the Chief of National Security at the CSB in Sarajevo, until his appointment as Under-Secretary for National Security in August 1992. He held the latter position until November 1995, when he became the Minister of Internal Affairs. In August 1997, he was appointed Vice-President of the RS, and Minister for Local Services. [ 85 ] In his capacity as Chief of National Security in Sarajevo, Mr.

Kijac was principally responsible for gathering information from behind enemy lines, to protect the public and state institutions in the RS. He was also responsible for counter-terrorism and “counter- information” . [ 86 ] His testimony focused on the communications difficulties that were experienced within the RS MUP, his perception that Mr. Kljajic did not have much practical authority or responsibility within the RS MUP, his very limited dealings with Mr. Kljajic and his perception that Mr.

Kljajic was not aware of what was happening on the ground during the period that he held the position of Under- Secretary within the RS MUP. (He stated that, had he not gone to have coffee with Mr. Kljajic from time to time, Mr. Kljajic would not have been aware of what was happening on the ground.) In addition, Mr. Kijac spoke to the consequences that would likely have been faced by someone who deserted the RS MUP. [ 87 ] On cross-examination, Mr. Kijac was very defensive, to the point of being confrontational.

Moreover, when asked about the genocide at Sebrenica, he began by remarking that he did not believe that it was a genocide. He then stated that he did not find out about what happened there until approximately five years later. When asked how this could possibly be true, given that he was the Under- Secretary for State Security at the time and given the widespread reporting that occurred about the massacre that took place, he clarified that “there was lots of talks about it, but there were no clear proofs” (transcript, Vol. 8, at page 59).

He was then asked whether he had issued false documents for people who were wanted by the ICTY. To his credit, he acknowledged that he had provided false identity documents to a number of people, at the request of “the Military Security and Chief of the Intelligence Service” (transcript, Vol. 8, at page 61). [ 88 ] Considering the foregoing, I did not consider Mr. Kijac’s testimony to have been particularly forthcoming or credible where it differed from evidence provided on behalf of the plaintiffs. [ 89 ] I will simply add in passing that, in testimony before the ICTY, Mr.

Kijac stated that he had no interest in the affairs of the Public Safety branch of the RS MUP (where Mr. Kljajic worked), because the two branches of the RS MUP were independent. In my view, this undermines the significance of his above-mentioned perceptions with respect to Mr. Kljajic. Although Mr. Kljajic’s counsel objected to the admissibility of this transcript based on the fact that it does not have the ICTY’s stamp and therefore is of questionable authenticity, I am satisfied that it is authentic and trustworthy, as contemplated by paragraph 10.5(5) (

c) of the Citizenship Act . This is because it is on the ICTY’s website. In contrast to purported records of foreign proceedings that need to be certified because they may not be available to one or more other parties to a dispute, this transcript is publicly available online.

(4) Mr. Kljajic [ 90 ] Mr. Kljajic’s testimony focused on his work history prior to the Bosnian war, his PR Application, his position and role within the RS MUP, his relationship with Minister Stanisic, his alleged limited awareness of the war crimes and crimes against humanity that were being committed by the RS MUP, and the consequences that he would have faced had he left the RS MUP without official permission.

He also discussed his work history in Canada and the absence of any troubles with the law since coming here 25 years ago, as well as the fact that he has several children and grandchildren who all live here. [ 91 ] Where Mr. Kljajic’s testimony was inconsistent with the evidence provided by the plaintiffs’ witnesses, particularly Dr. Nielsen

and Mr. Davidovic, I found the plaintiffs’ witnesses to be more candid, forthright, reliable and credible. This was largely due to the fact that I found Mr. Kljajic’s testimony to be internally inconsistent at times, implausible in some respects, and less credible and less believable than conflicting evidence provided by the other witnesses (see, e.g., paragraphs 118–124, 174, 178, 185–212, 216–219, 221– 223 and 228–251 below). VII. Issues [ 92 ] Although the plaintiffs’ statement of claim seeks four declarations, I consider that there are three principal issues, namely: i. Did Mr.

Kljajic become a permanent resident by false representation or fraud or by knowingly concealing material circumstances, and because of having acquired that status, subsequently obtain Canadian citizenship? ii. Is Mr. Kljajic inadmissible to Canada on grounds of violating human or international rights, as set forth in paragraph 35(1) (

b) of the IRPA ? iii. Is Mr. Kljajic inadmissible to Canada on grounds of violating human or international rights, as set forth in paragraph 35(1) (

a) of the IRPA ? VIII. Assessment A. Did Mr. Kljajic become a permanent resident by false representation or fraud or by knowingly concealing material circumstances, and because of having acquired that status, subsequently obtain Canadian citizenship?

(1) Applicable Legal Principles [ 93 ] To demonstrate that a person became a permanent resident by false representation or fraud or by knowingly concealing material circumstances, the Minister does not have to demonstrate that, “but for” the person’s deception, his or her application for permanent residence would necessarily have been rejected.

The Minister’s burden is simply to demonstrate that such deception likely had the effect of foreclosing or averting further inquiries in respect of circumstances that had a material bearing on the assessment of the person’s application: Rogan , above, at paragraphs 31–32 ; Halindintwali , above, at paragraphs 35–36 ; Canada (Citizenship and Immigration) v. Savic, 2014 FC 523 , [2015] 3 F.C.R. 209 ( Savic ), at paragraphs 51 and 80 ; Canada (Citizenship and Immigration) v.

Rubuga , 2015 FC 1073 ( Rubuga ), at paragraphs 72–73 . [ 94 ] This burden must be demonstrated on the civil “balance of probabilities” standard of proof.

In brief, the Minister must demonstrate that it is more probable than not that the person in question knowingly made false representations, engaged in fraudulent conduct or concealed material circumstances, either in an application for permanent residence or in the related interviews or other communications that took place in connection with that application: Rogan , above, at paragraph 27 ; Halindintwali , above, at paragraph 32 . [ 95 ] In this regard, the Minister is not required to demonstrate that the person knew that the circumstances were material or that the false representations or fraud concerned matters that were potentially important or significant.

The Court must simply find, on the evidence or by reasonable inference, that the person engaged in deception with the intent of misleading those involved in the assessment of his or her application. For this purpose, the element of “knowing concealment of material circumstances” in subsection 10.1(1) does not include innocent misrepresentations. Likewise, the element of “materiality” does not include inadvertent omissions of immaterial information and mere technical transgressions. However, willful blindness will not be condoned: Canada (Citizenship and Immigration) v.

Odynsky , 2001 FCT 138 , 196 F.T.R. 1, [2001] F.C.J. No. 286 (QL), at paragraphs 158–159 ; Rogan , above, at paragraphs 32–35 ; Halindintwali , above, at paragraph 36 ; Savic , above, at paragraphs 57–78 ; Rubuga , above, at paragraphs 73–74 . [ 96 ] For greater certainty, the concealment of material circumstances can occur either through the withholding of material information or through a misleading answer which has the effect of foreclosing or averting further inquiries, and thereby diverting attention away from material circumstances.

This is so even if the withheld or misleading information itself does not concern a di

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