F.C. 594 (C.A.), at pp. 606-07, and Hoang v. Canada (Minister of Employment and Immigration), supra. Deportation may, however, come within the scope of a "treatment" in s. 12. The Concise Oxford Dictionary (1990) defines treatment as "a process or manner of behaving towards or dealing with a person or thing ...." It is unnecessary, for the purposes of this appeal, to decide this point since I am of the view that the deportation authorized by ss. 27(1)(d)(ii) and 32(2) is not cruel and unusual. The general standard for determining an infringement of s. 12 was set out by Lamer J., as he then was, in the following passage in R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072: The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 668, "whether the punishment prescribed is so excessive as to outrage standards of decency". In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. The deportation of a permanent resident who has deliberately violated an essential condition of his or her being permitted to remain in Canada by committing a criminal offence punishable by imprisonment of five years or more, cannot be said to outrage standards of decency. On the contrary it would tend to outrage such standards if individuals granted conditional entry into Canada were permitted, without consequence, to violate those conditions deliberately. (c) Section 15 Although the constitutional question stated by Gonthier J. raises the issue of whether ss. 27(1)(d)(ii) and 32(2) violate s. 15 of the Charter, the respondent made no submissions on this issue. I agree, for the reasons given by Pratte J.A. in the Federal Court of Appeal, that there is no violation of s. 15. As I have already observed, s. 6 of the Charter specifically provides for differential treatment of citizens and permanent residents in this regard. While permanent residents are given various mobility rights in s. 6(2), only citizens are accorded the right to enter, remain in and leave Canada in s. 6(1). There is therefore no discrimination contrary to s. 15 in a deportation scheme that applies to permanent residents, but not to citizens. 2 Do ss. 82.1 and 83 of the Immigration Act, 1976 or Reliance on the Certificate Authorized by s. 83, infringe s. 7 of the Charter? Two separate sets of questions were stated on the main appeal -- firstly, whether ss. 82.1 and 83 themselves infringe s. 7 and if so whether they can be saved under s. 1, and secondly whether reliance on the certificate authorized by s. 83 infringes s. 7 in a manner that cannot be saved under s. 1. I agree with the submissions of both parties that the question of whether ss. 82.1 and 83 violate s. 7 was properly before the Federal Court of Appeal and should have been answered. It can therefore be addressed by this Court on appeal from the decision of the Federal Court of Appeal. The section 7 violation raised in both questions involves the operation of a certificate issued under s. 83 of the Act to deprive the respondent of an appeal under s. 72(1)(b) of the Act. These questions raise two issues -- first, whether the substantive provisions violate s. 7 and secondly, whether the procedure followed by the Review Committee results in a s. 7 violation. I will deal with these issues in that order. The practical significance of ss. 82.1 and 83 of the Act stems from their interaction with the rights of appeal from a s. 32(2) deportation order provided by s. 72(1) of the Act. Section 72(1)(a) provides for a true appeal, based on any question of law or fact or mixed law and fact. Under s. 72(1)(b), Parliament has granted a further appeal on the ground that "having regard to all the circumstances of the case, the person should not be removed from Canada". This latter ground of appeal grants the Immigration Appeal Board discretion to quash a deportation order notwithstanding the fact that the individual falls within one of the categories in s. 27(1) such that the deportation order was properly made under s. 32(2). It thus allows for clemency from deportation on compassionate grounds. Section 82.1 sets out the conditions which may give rise to an investigation by the Review Committee and the procedure to be followed in such an investigation. In general terms the Solicitor General and the Minister of Employment and Immigration may make a report to the Review Committee in respect of a permanent resident who has launched an appeal pursuant to s. 72(1)(b) where they are of the opinion, based on security or criminal intelligence reports, that that person is likely to engage in organized crime, espionage, acts of violence that might endanger the lives or safety of persons in Canada, or subversion by force of any government. In the case of the respondent the joint report was based on s. 19(1)(d)(ii): 19. (1) . . . (d) persons who there are reasonable grounds to believe will . . . (ii) engage in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence that may be punishable under any Act of Parliament by way of indictment; When the Review Committee receives such a joint report, it must conduct an investigation into the grounds on which it is based and report to the Governor in Council. Where, after considering the report of the Review Committee, the Governor in Council is satisfied that the person does fall within one of the categories in s. 82.1(2) (the categories pursuant to which the Ministers can make a joint report to the Review Committee), he or she may direct the issuance of a certificate under s. 83. The effect of this certificate is to direct the Immigration Appeal Board to dismiss any appeal made pursuant to s. 72(1)(b). In other words, the individual's appeal will be limited to questions of fact or law or mixed fact or law. Substantive Ground The respondent submits that the impugned legislation is inconsistent with s. 7 of the Charter because it creates a process whereby he is deprived, contrary to the principles of fundamental justice, of his right to appeal against deportation on the ground set out in s. 72(1)(b). The necessary implication of this position is that it is a principle of fundamental justice that a permanent resident who is the subject of deportation proceedings be afforded an appeal on all of the circumstances of the case. Otherwise it cannot be a violation of principles of fundamental justice for Parliament to limit the availability of such an appeal. In my view s. 7 does not mandate the provision of a compassionate appeal from a decision which, as I have already concluded, comports with principles of fundamental justice. Before a deportation order can be issued against a permanent resident, an inquiry must be conducted by an adjudicator to determine whether the permanent resident does fall into one of the classes in s. 27(1). Section 72(1)(a) provides for an appeal from such a deportation order on any question of law or fact or mixed law and fact. The decision of the Board is subject to appeal to the Federal Court of Appeal on a question of law if leave is granted by that Court (s. 84 of the Act (now s. 83)). These rights of appeal offer ample protection to an individual from an erroneous decision by the adjudicator. The question is whether principles of fundamental justice require more than this. In order to answer this question it is necessary to consider the "nature, source, rationale and essential role" of the right to appeal from deportation orders under the Act and the evolution of that right: Re B.C. Motor Vehicle Act, supra. The Immigration Act, S.C. 1910, c. 27, did not provide any specific grounds of appeal. A person ordered deported could only resort to the Minister who, under s. 19, had the authority to overturn a deportation order on unspecified grounds. The Immigration Act, R.S.C. 1952, c. 325, provided for an immigration appeal board; however, appeals against deportation orders remained under the control of the Minister. The appeal board heard only those appeals directed to it by the Minister and the Minister retained the power to confirm or quash the appeal board's decision or substitute his decision as he deemed just and proper. The 1966 White Paper on Immigration criticized the broad overriding power of the Minister with respect to appeals, and recommended that a reconstituted Immigration Appeal Board have authority to deal conclusively with appeals against deportation orders except in "security cases". In 1967, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, established an independent Immigration Appeal Board. Section 11 provided for appeals on any questions of law or fact or mixed law and fact. Section 15, for the first time, conferred upon the Board the power to stay or quash a deportation order made against a permanent resident on the basis of all the circumstances of the case. However s. 21 provided that that new power was still subject to the discretion of the Minister and the Solicitor General who could certify their opinion, based on security or criminal intelligence reports, that it would be contrary to the national interest to permit such relief. In Prata v. Minister of Manpower and Immigration, supra, Martland J. stated at p. 381: The effect of s. 21 is to reserve to the Crown, notwithstanding the powers conferred upon the Board by the Act, the right, similar to the prerogative right which existed at common law, to determine that the continued presence in Canada of an alien, subject to a deportation order, would not be conducive to the public good. The Immigration Appeal Board Act was repealed by the Immigration Act, 1976, s. 128. Section 72 of the Immigration Act, 1976 effectively consolidated ss. 11 and 15 of the former Immigration Appeal Board Act into one section setting out two separate grounds of appeal. However in my view it did not change the nature of the decision that could be made by the Board "having regard to all the circumstances of the case". That decision remained, as it had been under the 1967 Act, an exercise of discretion based on compassionate grounds. Section 83 of the Immigration Act, 1976 continued to limit the availability of relief based on all the circumstances of the case. Such an appeal had to be dismissed if the Minister and the Solicitor General certified their opinion that, based on security or criminal intelligence reports, it would be contrary to the national interest to permit it. Finally in 1984 the Security Intelligence Review Committee was established by the CSIS Act. The Review Committee was assigned various functions under several Acts, including the Immigration Act, 1976. Section 83 was repealed and s. 82.1 and an amended version of s. 83 were substituted. Section 82.1 assigned to the Review Committee the task of investigating and reporting to the Governor in Council as to whether a permanent resident came within the classes of persons not entitled to an appeal on all the circumstances of the case. However, the decision as to whether to direct the issuance of a certificate under s. 83 is that of the Governor in Council. It can thus be seen that there has never been a universally available right of appeal from a deportation order on "all the circumstances of the case". Such an appeal has historically been a purely discretionary matter. Although it has been added as a statutory ground of appeal, the executive has always retained the power to prevent an appeal from being allowed on that ground in cases involving serious security interests. If any right of appeal from the deportation order in s. 32(2) is necessary in order to comply with principles of fundamental justice, a "true" appeal which enables the decision of the first instance to be questioned on factual and legal grounds clearly satisfies such a requirement. The absence of an appeal on wider grounds than those on which the initial decision was based does not violate s. 7. Procedural Ground The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. This argument was the basis for the judgment of the majority in the Court of Appeal. I have already concluded that the respondent can assert no substantive right to an appeal on compassionate grounds. It is entirely within the discretion of Parliament whether an appeal on this basis is provided. Accordingly, Parliament could have simply provided that a certificate could issue without any hearing. Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? It could be argued that the provision of a hearing ex gratia does not expand Parliament's constitutional obligations. I need not resolve this issue in this case because I have concluded that, assuming that proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed. These proceedings took place within the framework of several legislative provisions and Review Committee Rules. Section 82.1(3) of the Immigration Act, 1976 provides that in an investigation by the Review Committee pursuant to a joint report by the Solicitor General and the Minister of Employment and Immigration, ss. 43, 44 and 48 to 51 of the CSIS Act apply, subject to certain specific modifications and with such other modifications as the circumstances require. Section 48(2) of the CSIS Act provides that no one is entitled as of right to be present during, to have access to or to comment on representations made to the Review Committee by any other person. Pursuant to s. 39(1) of the Act, the Review Committee adopted the "Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act". Rules 45 to 51 set out the procedure relating to the making of representations under s. 48(2) of the CSIS Act. A party to an oral hearing may be represented by counsel, may call and examine witnesses and may make representations (Rule 48(1)). It is within the Committee's discretion to exclude from the hearing one or more parties during the giving of evidence or making of representations by another party (Rule 48(3)). It is also within the Committee's discretion, in balancing the requirements of preventing threats to the security of Canada and providing fairness to the person affected, to determine whether a party is entitled to cross-examine witnesses called by other parties (Rule 48(2)) and whether, if a party has been excluded from portions of the hearing, the substance of the evidence given or the representations made by the other party should be disclosed to that party (Rule 48(4)). The scope of principles of fundamental justice will vary with the context and the interests at stake. In R. v. Lyons, [1987] 2 S.C.R. 309, La Forest J., writing for the majority, stated at p. 361: It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-23). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. Similarly, the rules of natural justice and the concept of procedural fairness, which may inform principles of fundamental justice in a particular context, are not fixed standards. See: Syndicat des employÊs de production du QuÊbec et de l'Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pp. 895-96; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682. In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. explained at p. 539 that in assessing whether a procedure accords with fundamental justice, it may be necessary to balance competing interests of the state and the individual: What these practices have sought to achieve is a just accommodation between the interests of the individual and those of the state, both of which factors play a part in assessing whether a particular law violates the principles of fundamental justice; see R. v. Lyons, [[1987] 2 S.C.R. 309], at pp. 327 and 329; R. v. Beare, [[1988] 2 S.C.R. 387], at pp. 403-5; also my reasons in R. v. Corbett, [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring). The interests in the area with which we are here concerned involve particularly delicate balancing. . . . In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee's investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460: The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information. On the general need to protect the confidentiality of police sources, particularly in the context of drug-related cases: see R. v. Scott, [1990] 3 S.C.R. 979, at pp. 994-95. See also Ross v. Kent Inst. (1987), 57 C.R. (3d) 79, at pp. 85-88 (B.C.C.A.), in which that court held that it is not essential in order to comply with principles of fundamental justice that an inmate know the sources of information before the Parole Board as long as he is informed of the substance of that information. The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee's discretion be exercised with regard to this balancing of interests. In this case the respondent was first provided with the "Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee". This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the "Chronology of Information") and a "Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco". Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information. The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination: Certainly, it would be my inclination that if the RCMP wish to call witnesses in support of any or all of the comments that they may make in support of the Statement of Circumstances, there would be the opportunity for the applicant's counsel to cross-examine. The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by the Review Committee in this case did not violate principles of fundamental justice. VI. Conclusion I would therefore allow the appeal, dismiss the cross-appeal, both with costs, and answer the constitutional questions as follows: Main Appeal 1 (a) Do sections 82.1 and 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now ss. 81 and 82 of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? Answer:Assuming without deciding that s. 7 applies, the answer is no. (b) If the sections referred to above do infringe or deny the rights guaranteed by s. 7 of the Charter, are they justified by s. 1 of the Charter? Answer:This question does not have to be answered. 2 (a) Does reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 82 of the Immigration Act, R.S.C., 1985, c. I-2) filed in the respondent's case result in an infringement of his rights pursuant to s. 7 of the Charter, because the process followed by the Security Intelligence Review Committee did not meet the requirements of s. 7? Answer: Assuming without deciding that s. 7 applies, the answer is no. (b) If reliance upon the certificate does infringe or deny the rights guaranteed by s. 7 of the Charter, is it justified by s. 1 of the Charter? Answer:This question does not have to be answered. Cross-Appeal 1 (a) Do s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, as amended by S.C. 1984, c. 21, s. 84 (now s. 27(1)(d)(ii) and s. 32(2) of the Immigration Act, R.S.C., 1985, c. I-2) infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms in that they require the deportation of persons convicted of an offence carrying a maximum punishment of five years or more, without reference to the circumstances of the offence or the offender? Answer:With respect to s. 15, the answer is no. Assuming, without deciding, that either s. 7 or s. 12 apply, the answer is no. (b) If the paragraph and subsection referred to above do infringe or deny the rights guaranteed by ss. 7, 12 and 15 of the Charter, are they justified by s. 1 of the Charter? Answer:This question does not have to be answered. Appeal allowed and cross-appeal dismissed. With respect to the main appeal, assuming without deciding that s. 7 is applicable, ss. 82.1 and 83 of the Immigration Act, 1976, do not infringe or deny the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms and reliance upon the certificate authorized by s. 83 of the Immigration Act, 1976, did not result in an infringement of s. 7 having regard to the process followed by the Security Intelligence Review Committee. With respect to the cross-appeal, the requirement that persons convicted of an offence carrying a maximum punishment of five years or more be deported, without reference to the circumstances of the offence or the offender, does not offend s. 15, or ss. 7 or 12 assuming without deciding that these sections applied. Solicitor for the appellant: John C. Tait, Ottawa. Solicitor for the respondent: Irwin Koziebrocki, Toronto. Solicitors for the intervener: NoÌl, Berthiaume, Aubry, Hull. The official versions of decisions and reasons for decision by the Supreme Court of Canada are published in the Supreme Court Reports (S.C.R.). This site is prepared and published by LexUM in partnership with Supreme Court of Canada. IMMIGRATION AND REFUGEE PROTECTION ACT INTRODUCED OTTAWA, February 21, 2001 -- Elinor Caplan, Minister of Citizenship and Immigration, today tabled the Immigration and Refugee Protection Act in the House of Commons, reaffirming her commitment to be tough on criminals while strengthening efforts to attract skilled immigrants. The new bill incorporates a number of recent proposals from Canadians, yet maintains the core principles and provisions of Bill C-31, the immigration legislation introduced prior to last fall's general election. The Minister said the legislation reintroduces severe penalties -- fines of up to $1 million and life in prison -- for people smugglers and traffickers, speeds up family reunification, and maintains Canada's humanitarian tradition of providing safe haven to people in need of protection. "By saying 'No' more quickly to people who would abuse our rules, we are able to say 'Yes' more often to the immigrants and refugees Canada will need to grow and prosper in the years ahead," said Minister Caplan. The bill reintroduces key measures to strengthen the integrity of the refugee determination system. These include front-end security screening for all claimants, clearer grounds for detention, fewer appeals and opportunities for judicial review to delay the removal of serious criminals, and suspension of refugee claims for people charged with serious crimes until the courts have rendered a decision. The legislation reaffirms the commitment to faster but fair decisions on refugee claims by consolidating several current steps and criteria into a single protection decision to be made by the Immigration and Refugee Board, and by combining the increased use of single-member panels with an internal paper appeal before the Board. In addition, the new bill reintroduces a number of key provisions designed to expand the admission of workers with the skills that are most acutely needed in Canada. The key changes that have emerged from discussions of Bill C-31 and that were introduced today include: The inclusion of the definition of permanent resident in the Act; Provisions within the bill that reinforce the government's commitment to gender equality and clarify that parents are members of the family class; An oral appeal hearing for people facing a loss of permanent resident status for failure to maintain residency; Improved safeguards for people in need of protection: unsuccessful repeat refugee claimants will be eligible for a pre-removal risk assessment (PRRA) if they return to Canada after six months (as opposed to one year); discretion for oral PRRA in exceptional circumstances; protected people whose identities have been established will be eligible to apply for Canadian refugee travel documents; The requirement of a warrant to arrest refugees and permanent residents for any immigration matter. The principle that children will be detained only as a last resort. The Minister promised supporting regulations over the coming months, which will include a strengthened overseas refugee resettlement program, an expanded family class, new selection criteria to attract more highly skilled and adaptable independent immigrants, and the creation of an "in-Canada" landing class for temporary workers, foreign students and spouses already established in Canada and wishing to stay. The expanded family class will increase the age at which a dependent child can be sponsored from under 19 to under 22 and allow spouses and children to apply for permanent residence from within Canada. The Minister also expressed willingness to pursue discussions with the provinces over additional ways to expand the family class. The new legislation will replace the current Immigration Act, which was first passed in 1976 and which has been amended more than 30 times. Work on the new legislation began in 1997 and has evolved through extensive consultations with the provinces, the territories, the legal community, non-governmental organizations and the general public. - 30 - For Information: Derik Hodgson Press Secretary Minister's Office (613) 954-1064 RenÊ Mercier Media Relations Communications Branch (613) 941-7042 Backgrounder # 1 Changes from Bill C-31 In response to Bill C-31, the government received submissions from the Canadian Bar Association, the United Nations High Commissioner for Refugees, the Canadian Council for Refugees and many others. The Minister has listened and responded. Framework Legislation What we heard: The government should ensure that all key principles and core policies are reflected in the Act and not in the regulations. The regulations should be limited to matters related to the implementation of policy. Our response: 1.The new bill places greater emphasis on key principles, including: The principles of equality and freedom from discrimination. The principle that minor children should be detained only as a last resort. The principle of equality of status for both official languages. 2.The new bill also includes the following provisions previously intended to be prescribed by regulation: The provision that parents are members of the family class. The provision that sponsored spouses, partners and dependent children of immigrants and refugees and their dependents will not be refused admission to Canada on the grounds that they would create an excessive demand on the medical system. 3.The new bill also reinforces the government's commitment to gender equality and provisions for opposite- and same-sex couples. Provisions Affecting Permanent Residents What we heard: Permanent residents should have a separate, defined status that clearly specifies their rights and obligations, including the right to enter Canada. Loss of status determinations should be made only through an oral appeal to the Immigration and Refugee Board (IRB). Our response: The new bill enhances the rights of permanent residents by: Including a separate definition for permanent residents that highlights the distinction between permanent residents and other foreign nationals. Ensuring the right to an oral hearing before the IRB in the case of appeals on the loss of permanent resident status. Ensuring facilitated entry for permanent residents without a valid permanent resident card if they have been outside Canada for less than one year. Setting a higher threshold for examinations for permanent residents than for other foreign nationals. Requiring a warrant to arrest a permanent resident for any immigration matter. Access to the Refugee Determination System What we heard: Access to the refugee determination system is too restrictive and would deny access to people convicted of politically trumped-up charges. Others who are excluded from the IRB procedures may be denied access to a fair risk assessment upon return to their country of origin. Our response: The possibility of politically trumped-up charges will be considered by the IRB, except in cases where the Minister finds the person to be a danger to the public. The new bill clarifies that unsuccessful refugee claimants, refugees who have withdrawn or abandoned their claims, and refugees excluded from the IRB process will have access to a pre-removal risk assessment prior to removal. The risk review may provide for an oral hearing, depending on the complexity of the case. Repeat claimants will have access to the risk review after six months instead of one year. People refused resettlement overseas will have access to the IRB determination system should they later apply from within Canada. Other Amendments to Respond to Stakeholder Submissions The time limit for filing leave for judicial review of overseas decisions is prolonged from 15 to 60 days. Convention refugees and protected people whose identities have been established will be provided with a document indicating their status and making them eligible to apply for refugee travel documents. - 30 - 2001-03 Backgrounder # 2 Making the System Work Better For Immigrants Improving Client Service What we are doing: Piloting new approaches to overseas processing. Introducing new technology: the Global Case Management System. Why we are doing it: To ensure faster processing, quality decisions and increased transparency. Clearing up Backlogs and Managing the Inventory What we are doing: Designating new funds to clear up backlogs. Improving the management of the inventory of applications for permanent residence and for immigration visas abroad. Introducing the Multi-year Planning Process. Why we are doing it: To serve Canadians, permanent residents and potential immigrants faster and more effectively. To enable the program to move toward immigration levels of one percent of the population. Expanding the Family Class What we are doing: Broadening the definition of "dependent child" by increasing the age from under 19 to under 22. Opening up adoption provisions in keeping with the principle of the best interests of the child. Modernizing the definition of "family" to include common-law and same-sex partners. Why we are doing it: To reflect the high value Canadians place on the family. To maintain and enhance the family class as an important component of the overall program. To reflect the changing nature of social relationships in Canada. Facilitating Family Reunification What we are doing: Creating an in-Canada landing class for sponsored spouses and partners for both immigrants and refugees. Exempting sponsored spouses, partners and dependent children from the admission bar with regard to excessive demand on health or social services. Reducing the age at which Canadian citizens and permanent residents are eligible to sponsor from 19 to 18. Including "parent" in the definition of family class within the Act. Reducing the length of the sponsorship requirement from 10 years to 3 years for spouses and common-law opposite- and same-sex partners. Why we are doing it: To make it easier for families to be reunited as soon as possible. Incorporating the Best Interests of the Child What we are doing: Incorporating the principle of the best interests of the child in appropriate provisions of the Immigration and Refugee Protection Act. Why we are doing it: To uphold our international commitments as a signatory to three United Nations conventions on the rights of the child. To reflect the high value Canadians place on the well-being of children. Modernizing the Selection System: Skilled Workers What we are doing: Moving away from an occupation-based model to one focused on flexible and transferable skills. Assigning more weight to education. Increasing the relative weight of having knowledge of an official language but ensuring that language is not a bar to admission. Creating an "in-Canada landing class" for temporary workers (including recent graduates from Canadian schools) who have a permanent job offer and who have been working in Canada. Why we are doing it: To attract and keep the highly skilled, adaptable immigrants that Canada needs to succeed and prosper in the future. Expanding the Temporary Worker Program What we are doing: Facilitating the entry of temporary workers through a more serviceoriented approach. Pursuing agreements with individual sectors or firms to identify and meet short-term labour market needs, while respecting the terms of applicable federal-provincial agreements. Why we are doing it: To allow the immediate needs of employers to be met faster. To expand our access to the global labour market. To attract people who are skilled and on the move and to encourage them to make Canada their destination of choice. Strengthening Sponsorship Obligations What we are doing: People in default of court-ordered spousal or child support payments will not be allowed to sponsor. People convicted of a crime related to domestic abuse will not be able to sponsor unless a pardon has been granted or rehabilitation has been demonstrated. New legislative provisions will improve the ability of the federal government to recover the costs of social assistance in cases of sponsorship default. People receiving social assistance, except for reasons of disability, will not be able to sponsor. Why we are doing it: To strengthen the integrity of the sponsorship program. Streamlining Appeals What we are doing: Introducing a new leave requirement for people appealing visa officer decisions from overseas. Developing an alternative dispute resolution mechanism for overseas decisions. Limiting inland humanitarian and compassionate applications to one per year. Why we are doing it: To provide a screening mechanism for applications to the Federal Court for review of overseas decisions. The leave provision currently exists for inland applications only. To provide an effective, alternative means of reviewing and solving disputes regarding overseas decisions. To ensure a fast and fair inland system for considering applications on humanitarian and compassionate grounds. Business Immigration What we are doing: Establishing objective criteria to assess business experience for both the investor and entrepreneur programs. Creating a new net worth requirement for entrepreneurs. Why we are doing it: To strengthen the integrity of the business immigration program. Objective Criteria for Permanent Residence What we are doing: Introducing a clear physical residency requirement. To retain permanent residence status, a person must be physically present in Canada for a cumulative period of 2 years for every 5 working years. People who spend time overseas for specific reasons (to accompany a Canadian citizen, to work for a Canadian company, or for humanitarian reasons) will retain their status. Developing a fraud-resistant permanent resident card. Ensuring an oral appeal to the Immigration and Refugee Board (IRB) for all loss of status cases. Ensuring that permanent residents without a valid card have the right to enter if they have been outside Canada for less than one year. Why we are doing it: To implement a clear objective standard that is easier to administer. To replace a document that is easy to forge with one that has state-of-the-art security features. And Refugees Strengthening Refugee Protection: Overseas Resettlement What we are doing: Amending the criteria for "ability to establish in Canada" to include social as well as economic factors. Pursuing agreements with NGOs to locate, identify, refer and pre-screen refugee applications in areas where refugees are most in need of protection. Ensuring that people in urgent need of protection are brought to Canada within days. Why we are doing it: To ensure that the need for protection is the overriding objective in resettlement from abroad. To focus existing resources on areas where refugees are most in need of protection. Facilitating Family Reunification of Refugees What we are doing: Processing overseas families as a unit, including extended family members of refugees whenever possible. Allowing dependants of refugees, selected inland or abroad, to be processed as part of the same application for a period of one year after a refugee has acquired permanent resident status. Exempting refugees, their spouses, partners and dependants from the admission bar with regard to excessive demand on health or social services. Why we are doing it: To facilitate the reunification of refugees with their family members as soon as reasonably practicable. Faster and Fair Refugee Processing Inland What we are doing: Referral to the IRB to be made within three working days. Consolidating protection decisions at the IRB to examine all risk grounds at a single hearing. Grounds will include the Geneva Convention, the Convention against Torture, and the risk of cruel or unusual treatment or punishment. The use of single-member panels as the norm, supported by the establishment of a paper appeal on merit. Reducing the waiting period from 5 to 3 years for the landing in Canada of undocumented refugees who are unable to obtain documents from their listed country of origin because there is no central authority in that country to issue documents. Why we are doing it: To allow genuine refugees to be processed faster so that their lives are not put in limbo while they wait for decisions crucial to their future. To provide a fair opportunity to correct errors in law or fact in the first instance, and to increase the integrity of the decision-making process. Front-end Security Screening What it is: A security check initiated when a person makes a refugee claim. Why we are doing it: To catch criminals and people who present security risks at the start of the process and speed genuine refugees through the system. Currently, a security screening is carried out only once a person is granted refugee status by the IRB. Admissibility Hearing What it is: A hearing before an independent adjudicator to decide whether a person is admissible to Canada. Why we are doing it: To make fair but fast decisions on security cases. Pre-removal Risk Assessment What we are doing: Legislating a procedure to fairly assess the risk of return prior to removal. There will be flexibility for an oral hearing should the complexity of the case require it. Repeat claimants, failed refugee claimants, and refugees who have withdrawn or abandoned their claims will be assessed on the grounds of the Geneva Convention, the United Nations Convention against Torture, and the risk of cruel or unusual treatment or punishment. People found to be inadmissible to Canada for reasons of serious criminality, security, organized crime or violations of human rights will be assessed on the grounds of the United Nations Convention against Torture and the risk of cruel or unusual treatment or punishment. Why we are doing it: To ensure that there is a fair and effective procedure for assessing the risk of return for individuals being removed from Canada. Strengthening Enforcement Penalties What we are doing: Increasing penalties for existing offences. Creating a new offence for human trafficking. Extending Criminal Code counterfeiting provisions (which currently apply only to passports) to cover any immigration document or travel document (with an exemption for refugees). Allowing for the seizure of assets in cases of migrant smuggling and trafficking. Providing new authority to seize citizenship documents to prevent fraud. Creating a new offence for people who counsel a person to misrepresent himself or herself or to commit an offence under the Act. Creating a new offence for the possession and laundering of proceeds from immigration offences. Raising the penalty to life in prison for migrant smuggling and trafficking. Why we are doing it: To ensure that we have the tools we need to combat organized crime and human trafficking. Exclusion from the Refugee Determination System What we are doing: Barring access to serious criminals, people who present security risks, organizers of criminal operations, or violators of human rights. A "serious criminal" is defined as someone who was convicted of an offence punishable by 10 years or more and who has received a sentence of 2 years or more in Canada. People convicted of an offence punishable by 10 years or more outside Canada will only be excluded if the Minister finds them to be a danger to the public. Why we are doing it: To prevent abuse of the refugee protection system. Eliminating Appeals What we are doing: Eliminating appeals to the Immigration Appeal Division for serious criminals, people who present security risks, members of criminal organizations and war criminals. There will remain recourse to judicial review with leave by the Federal Court. Why we are doing it: To ensure that we can remove serious criminals and people who pose a security threat to Canada without delay. Suspension of a Refugee Claim What it is: The ability to suspend a person's application for protection before the IRB if he or she has been charged with a crime. The claim would be suspended until the courts have rendered a decision on the case. Why we are doing it: To prevent abuse of the system by people who come to Canada not because they need protection but because they intend to engage in crime. Repeat Claims What we are doing: Extending the period after which a new claim can be made from 90 days to six months. Why we are doing it: To avoid "revolving door" situations where failed refugee claimants return to Canada and make multiple claims. Detention and Day Parole What we are doing: Excluding incarcerated foreign criminals under removal order from day parole. Why we are doing it: It is inconsistent to integrate individuals into Canadian society who are to be deported on completion of their sentence. Streamlined Security Certificate Process What we are doing: Applying to permanent residents the security certificate process that currently applies only to non-permanent residents. The process requires the signatures of two ministers to the effect that the person is inadmissible on grounds of security, and a review of the certificate by a Federal Court judge. Why we are doing it: To make it easier to remove permanent residents who pose a serious threat to national security. New Inadmissibility Classes What they are: Two new classes of people who will be inadmissible to Canada: (1) people subject to travel sanctions imposed by Canada as a member of an international organization such as the United Nations; (2) people who committed fraud or misrepresentation on an immigration application will be inadmissible for 2 years. Why we are doing it: To strengthen our ability to enforce international sanctions. To prevent immigration to Canada through fraudulent means. Backgrounder # 3 Milestones On the Road to New Legislation Since 1996, the Government of Canada has been reviewing immigration and refugee policy and legislation with a view to fundamental policy reform and the introduction of new legislation. The comprehensive review process that has been under way since has involved a significant number of consultations with many different groups and interests as well as with individual Canadians. Ministers have been discussing immigration reform with Canadians for more than four years. This process has included: The appointment of a Legislative Review Advisory Group (LRAG) in 1996 commenced a major consultation process both by LRAG and by the government on their report, Not Just Numbers, in 1998. A Red Book commitment in 1997 and 2000 to streamline and update the immigration/refugee system, which promised to implement changes to make Canada's immigration system simpler, more effective, and more easily understood. The release of the White Paper, Building on a Strong Foundation for the 21st Century: New Directions for Immigration and Refugee Policy and Legislation in January 1999; Consultations on the White Paper with Canadians, provinces and territories, non-government organizations, the legal community, special interest groups, and the business sector throughout 1999; Immigration commitments in the 1999 Throne Speech, Budget 2000 and 2001 Throne Speech; including the 2001 Throne Speech commitment to re-introduce legislation to streamline and improve the immigration system. Consultations leading up to the Standing Committee Report of March 22, 2000 entitled Refugee Protection and Border Security: Striking a Balance; and The introduction of the new Immigration and Refugee Protection Act (Bill C-31 & Bill C- ) in 2000 and 2001. General agreement on fundamentals There is general agreement that Canada needs a new Act that is simpler, more effective, and more easily understood. Canadians want to stop abuse of our immigration and refugee system and protect Canada's borders. They want a system that is fair, effective, and respectful of Canada's humanitarian traditions and international commitments in a world of increasing migration pressures. They also agree that Canada needs immigrants to contribute to Canada's economic growth and prosperity. The business community needs access to the highly skilled global workforce. Canadians recognize that immigration is largely responsible for Canada's rich and diverse culture, and is a key advantage in the global economy. Canadians want a system that reflects our traditions of family reunification and family values, honours our history of compassion for refugees needing a safe haven, and contains selection criteria for immigrants that will ensure that newcomers contribute Canada's economic and social fabric. Immigration has proved to be a successful economic, social and cultural strategy for Canada in the past and will continue to be so in the future. 2001-03 Backgrounder # 4 Detention Provisions Clarified Detention is one of the most serious measures a liberal society can impose on individuals. It must be limited to cases where it is clearly warranted and does not contravene Canada's Charter of Rights and Freedoms. However, Canadians want to ensure that their safety and security is protected and that that their borders remain safe. Current grounds for detention remain unchanged Under the current legislation, there are three main commonly used grounds for detention: 1.Failure to establish identity; 2.Danger to the public; and 3.Unlikely to appear for future immigration proceedings or removal. Detention process will be more effective and transparent The criteria for detention decisions will be established in the new Regulations. There will be a requirement to review detention decisions after 48 hours, with further reviews scheduled after 7 days and each subsequent 30-day period. Foreign criminals facing deportation orders will not be eligible for day parole, as they are unlikely to respect conditions set out in temporary release programs. Priority hearings for those in detention To balance increased detention measures, the Immigration and Refugee Board (IRB) will give priority to hearings for those being held in detention. This streamlining should prevent refugee claimants from remaining in detention for long periods of time. Every step in the process from the irregular arrival of a foreign national in Canada to his or her removal following a negative decision will be fair and faster. Protection of unaccompanied minors While the legislative package honours Canada's international commitments to protect the best interests of the child, the security and safety of unprotected minors arriving as part of a criminally organized smuggling or trafficking operation is a major concern. These children are vulnerable to exploitation and coercion by the traffickers; in these cases, detention is truly a last resort and this is stipulated in the Act. The Government of Canada will make every effort to make arrangements with provincial social services to protect these children effectively, while seeking to ensure that they are not deprived of education and other basic needs. 2001-03 Backgrounder # 5 A Fair, Faster, More Effective Refugee Determination Process Front-end security screening of all refugee claimants In the current system, security and background checks are initiated only once an individual has had a refugee claim accepted and has applied for permanent resident status. In the new system, security screening will be initiated for all claimants at the time the claim is submitted. Greater coordination between domestic and international agencies will improve the timeliness of security information. Faster referrals to the Immigration and Refugee Board (IRB) The legislation will speed up this process by clarifying grounds of eligibility and automatically referring all eligible claims to the IRB within 3 working days. Consolidated assessment of protection grounds at the IRB Currently, assessment of the grounds for protection is handled in several stages, one at the IRB and the others at Citizenship and Immigration (CIC). The new system will consolidate these grounds in one risk assessment during a single hearing process at the IRB. The grounds for assessment of risk are: Geneva Convention on Refugees, risk of torture (Convention Against Torture), and risk to life and/or cruel and unusual punishment. These grounds are not new; they are merely being brought together from several current steps into one. Use of single-member panels as the norm at the IRB Currently, two-member panels hear refugee cases at the IRB, and in the majority of cases the decisions are unanimous. The process will be made more efficient by the use of single-member panels as the norm. Greater use of Ministerial interventions The Minister (by delegated authority to her officials) will have the right to intervene at IRB hearings to present security information or other data pertinent to the case. Greater coordination between domestic and international agencies will improve the timeliness and accuracy of information. Paper review on merit to be introduced To ensure consistency in decision-making and fairness to all refugee claimants, a paper review on merit may be conducted by a division of the IRB. This step is intended to ensure fairness and reduce the number of protracted applications for leave for judicial review by the Federal Court. Pre-Removal Risk Assessment (PRRA) In keeping with Canada's international commitment not to repatriate people who would face risk upon return, the Pre-Removal Risk Assessment (PRRA) will be provided on the same consolidated protection grounds, and coordinated with CIC removal priorities. Pursuant to the Geneva Convention, serious criminals, security risks, and members of organized crime groups will be excluded from consideration of refugee protection grounds. Their PRRA will be limited to risk of torture and cruel and unusual punishment. Linking the PRRA and the removal process will allow for expeditious -- yet fair -- treatment of all removal cases. This will ensure that no one will be sent to a situation of risk to life or cruel and unusual punishment in their country of nationality. Six month bar on repeat claims If a person returns to Canada after removal, they will not be allowed to reapply for refugee status for six months following removal. Prior to the six months, previously refused claimants would continue to have the option of seeking protection at any Canadian mission abroad. Persons who return to Canada after six months may apply for a pre-removal risk assessment but they are not able to re-access the refugee protection system of the IRB. Criminals will be barred from the Refugee Protection System The new Legislation clarifies inadmissibility criteria to ensure that serious criminals, terrorists, human rights violators and security risks will be barred from access to the refugee determination system and promptly removed from Canada. Campaign Against Fraudulent Medical Research P.O. Box 234 Lawson, New South Wales 2783 Australia Phone: +61 (0)2-4758-6822 URL: www.pnc.com.au/~cafmr Although the above materials are highly recommended by CAFMR, we do not necessarily share all the views expressed by the authors. Note about copyright: Any of the above information may be downloaded, copied, printed or otherwise distributed without seeking permission from CAFMR. However, printed acknowledgement is required when this is done. Bradley R. Smith Revisionism by: CODOH, POB 439016, San Diego, CA 92143 The Revisionist & Campus Project David Irving's Reply to Jeffrey Shallit's "Lies of Our Times" London, [ ] Dear Professor Shallit, I am not a subscriber to the Internet, but over the last few months I have heard repeatedly about scurrilous materials which you have been posting on that medium; at least you have had the courage to put your name to them as author, although this lays you open to the kind of lawsuit which I have started conducting--and winning--here in the British courts. I have so far seen versions of your Shallit's Report, and of your "Lies of Our Times." You appear to be interested in the Truth, and that being so I am making these comments to assist you in the search for that elusive quantitÊ. It appears that your primary source is a handout or handouts of the Wiener Library (Dr David Cesarini) and of the Board of Deputies of British Jews, who have furnished the League of Human Rights of the B'nai Brith Canada with two lengthy secret reports which are the subject of dispute between me and the Board under both the Data Protection Act 1984 (the Board at first denied having any data on me), and the Defamation Act 1952 (the Board's solicitor is negotiating with me for permission to withdraw the reports in toto, in return for an undertaking by me not to pursue the matter in the courts). First, your "article" Lies of Our Times (forgive the quotation marks, but as you call me an "historian" it seems justified). David Irving David John Cawdell Irving is a British "historian", born in 1938. * Correct. According to David Cesarani of the Wiener Library in London, England, he attended Imperial College at the University of London, but never graduated. He holds no academic degree and no academic position at any university or college. * Correct. The same can be said for Winston S. Churchill, Thomas Babington Macaulay (The History of England), and the Gibbon who wrote The Decline & Fall of the Roman Empire, etc. Would you denigrate them as "historians" too? He calls himself a "moderate fascist", * Incorrect. Please produce the source of this spurious and libellous allegation. and claims, among other things that the gas chambers at Auschwitz (in which an estimated 2-3 million people died) were "built by the Poles after the war as a tourist attraction." * Not quite correct. I stated (on April 21, 1990 and other occasions): "The gas chamber which is shown to the tourists in Auschwitz is a dummy (Atrappe) built after the war by the Polish communists as a tourist attraction." In 1990, Dr Franciszek Piper, the then director of the Auschwitz State Museum & Archives, confirmed that this is true. As recently as 1995 the present directors confirmed in an interview with Eric Conan, of the well-known liberal French weekly L'Express, that the gas chamber shown to the tourists was constructed on the orders of the Polish communist government in 1948. "Tout y est faux," reported Conan, and the deputy chief of the site stated: "Pour l'instant, on la laisse en l'Êtat et on ne prÊcise rien au visiteur. C'est trop compliquÊ. On verra plus tard" (L'Express, January 26, 1995). (For this remark, he was fined DM 10,000 by a Munich court in May 1992. * Correct. On January 13, 1993 the fine was increased to DM30,000 in view of my refusal to retract the statement. (Why should I? It was true). In addition, on July 1, 1993 I was permanently banned from setting foot in the German Federal Archives, which had benefited over the years from my donations of half a ton of archival material including the diaries of Canaris, Himmler, Rommel, etc., which I had located, and which they have now had to relinquish to me; and on November 13, 1993 I was permanently banned from Germany. How's that for freedom of speech! The judge was quoted as saying that the gas chambers of Auschwitz were "an historically certain fact.") * Correct. The word used is offenkundig, and is used in German law to deny defence lawyers the introduction of any defence exhibits or witnesses, e.g. the aforementioned Dr Franciszek Piper whom we were prepared to call. There has been an outcry in the German legal profession against these methods, and Germany is to face a rebuke from the United Nations for her repression of freedom of opinion by such means. Of course, if you believe they are correct to adopt such tactics, such is your right. Irving denies being a "Holocaust denier" or "Hitler apologist", and seems willing to resort to legal action if necessary. * Correct. Last year one of Britain's biggest Sunday newspapers was forced to pay me substantial damages after they printed such a libel. I issued a Libel Writ in the High Court. (For legal reasons, namely the settlement agreed, I am not permitted to identify the newspaper or the amount, except off the record). I am currently pursuing Libel action in the British courts against The Observer, Deborah Lipstadt, (whose odious little tract has been foolishly published here, i.e. within the jurisdiction, by Penguin UK Ltd) and Svenska Dagbladet. You have been warned! In a recent fax printed in the K-W Record, he is reported as saying, "I have warned 22 British newspapers that I shall not hesitate to commence libel action if they use smear phrases such like 'Hitler apologist' or 'Holocaust denier' to embellish their writings." But Bernard Levin, writing in The Times of London in May of this year, quoted Irving as saying, "I hope the court will fight a battle for the German people and put an end to the blood lie of the Holocaust which has been told against this country for 50 years." Irving first entered the headlines in 1970. * Incorrect. Ever since 1963 my books have been the subject of wide comment and much praise in the British media. In July of that year, he was forced to apologize in the High Court of London for "making a wholly untrue and highly damaging statement about a woman writer."--not an auspicious start for someone who claims to be in pursuit of the truth. * Correct. A Sunday Express journalist, Jill -----, stated that Rolf Hochhuth, the German playwright and one of my closest friends had granted her an exclusive interview. Hochhuth assured me he had not even spoken to her. I mentioned this in a letter to the newspaper's editor. She sued. As I was fighting the hideously costly PQ.17 Libel Action at the time, I had no alternative but to settle out of court-- "shortening the front," is what military commanders call such action. Make of that what you will. Nothing has been heard of that "journalist" since. Later that year, Irving was back in the headlines, concerning publication of his book, "The Destruction of Convoy PQ17". Ostensibly an expose of an ill-fated 1942 Arctic convoy headed for the Soviet Union during World War II, it eventually resulted in Irving being fined 40,000 British pounds for libel. * Incorrect. In actions for Libel--a tort--the defendant is not fined, but can be required to pay damages. The book was published by Simon & Schuster and other leading pubishers around the world. Not bad for an "historian", eh? Irving's book faulted Captain John Broome, commander of the convoy at the time, saying he was guilty of "downright disobedience" and "downright desertion of the convoy." * Incorrect. No such allegations or quotations are contained within the book. Broome brought suit against Irving for false statements, and won a judgment in August of 1970. Irving's lawyers appealed, and lost in March, 1971. * Correct. We then appealed to the House of Lords, twice, and lost 4-to-3,which is a pretty close call. Needless to say the insurers of Cassell & Co Ltd, the British publishers, would not have authorised such defence actions had their counsel not studied all the documents available and concluded that we had a powerful defence, based on the Admiralty records; this they in fact did, and wrote Opinions to that effect. Libel actions in Britain are tried by jury. Make of that what you will. The case is revealing because of what it says about Irving's abilities as a historian and his motives as an author. According to The Times of London, Irving showed a copy of the manuscript to Broome before publication. * Correct. I showed the late Captain Broome the mansucript in 1966, and he agreed to read it and make comment (as did a score of other officers involved); breaking his undertaking, he alone decided not to co-operate, but to wait for publication and then sue for profit. So be it. Broome objected to the accuracy of some thirty passages in the book, and threatened to sue for libel if Irving did not make changes. * Incorrect. He objected in reality to six words ("Captain Broome was a broken man"), and after these words were expunged, years later, his lawyers permitted the book's republication by William Kimber Ltd. At that point, William Kimbers Ltd., Irving's publisher, notified him that they would not publish the book as it was then written. * Incorrect. I was in dispute with William Kimber after they paid me only ?67 instead of the agreed fee of ?200 for translating the book, The Memoirs or Field-Marshal Wilhelm Keitel. This being so, I removed the PQ17 manuscript physically from their offices; Kimber's secretary came running down the street after me, pleading for me to return it. I keep a very detailed diary of events. In court, Kimber, already probably suffering from the Parkinsonism from which he later died, gave a totally different version, namely yours; he later apologised to me, which did not assist me much of course. Unfortunately, our counsel elected to call no witnesses in the case but to rest securely on the Admiralty documents. Later, Irving published the book with another publisher. The court found that Irving "was warned from most responsible quarters that his book contained libels on Captain Broome ... To make [the book] a success he was ready to risk libel actions ... Documentary evidence .... showed that [Irving] had deliberately set out to attack Captain Broome and in spite of the most explicit warnings persisted in his attack because it would help sell the book." The court labeled Irving's conduct as "outrageous and shocking." Irving's misrepresentations did not end with the publication of his book. According to Cesarani, in 1979 a German publisher had to pay compensation to the father of Anne Frank after printing the German edition of Irving's book, Hitler's War. Irving had claimed that Anne Frank's diary was a forgery. * Correct as written. Without consulting me, the Ullstein Verlag publishing firm, part of the pro-Israeli Axel Springer Group) made some unspecified payment to Otto Frank at his demand. I had already halted production and publication of the book for other reasons (tampering by Ullstein with my text). The German Bundeskriminalamt found that parts of the diary had been written in (post-war) ballpoint ink-paste, which made its authenticity problematic. My opinion on it now is ambivalent: it is unimportant, not a historical document of any value. Irving claims that according to his "research", the Holocaust is greatly exaggerated. * Correct. I think the figures have been magnified by an Order of Magnitude. Events in Auschwitz alone suggest that I am right:: here the figure has been effortlessly brought down from 4 million to 1 million, and now to even less. (He was recently quoted in the K-W Record as saying that the number of Jews who died in concentration camps was "of the order of 100,000 or more.") * Incorrect. Do you really believe all the newspapers say? I may have said "killed", not "died". But during the 1988 trial of pro-Nazi publisher Ernst Zundel, he was forced to admit under cross-examination that he hadn't even read all of Eichmann's 1960 trial testimony. (In this testimony, Eichmann admitted that Nazi leaders discussed the so-called "Final Solution to the Jewish problem"--extermination, in 1942.) * Incorrect. I have Eichmann's manuscript memoirs, given to me in Buenos Aires in November 1991. He states that to him Final Solution always meant the Madagascar Solution. Anyway, do you really want to base your case on the utterances of a Nazi war criminal? In November 1991, a reporter from The Independent showed that Irving omitted crucial lines from a translation of Goebbels' diaries--lines that would have contradicted his theory that Hitler knew nothing about the extermination of the Jews. * Incorrect. Which "crucial lines" am I supposed to have omitted? Irving's record is clear: he is not an historian, and he has made false statements and been forced to apologize for them. As Andrew Cohen, reporter for the Financial Post, has said, "David Irving should be denied credibility." * Well, that really wants to make me hang up my shingle: namely, that a shyster from a money-rag doesn't believe me. What a waste of kilobytes, when there are megabytes of reputable historians saying precisely the opposite about me. Yours sincerely, David Irving Focal Point Publications Professor Jeffrey Shallit Associate Professor Computer Science Department University of Waterloo, Waterloo, Ontario Canada The following is the full text of the article by Mr. Shallit that Mr. Irving quotes in the preceding letter. LIES OF OUR TIMES by Jeffrey Shallit How the Words of the Holocaust Deniers and Their Allies Show Them For What They Are 1. Background Canada has a long tradition of tolerance and multiculturalism. That's why many residents of the K-W area were shocked and saddened to learn that a stereo store on King Street in Kitchener was displaying posters advertising a talk by David Irving, a self-described historian who says that the estimates of six million Jews killed by the Nazis during World War II are greatly exaggerated. Inside the store, according to the K-W Record, one can find for sale a book by Fred Leuchter that claims that the gas chambers at Auschwitz were never used for mass killing. After local protests, the store owner retaliated by putting up posters about the banking system based on the writings of anti-Semite Eustace Mullins. Subsequently, these posters were taken down by the store owner, but one explicitly anti-Semitic flyer still remains. The Kitchener-Waterloo Record recently carried a letter to the editor by Paul Fromm, director of "Canadian Association for Free Expression, Inc.". This letter defended neo-Nazi publisher Ernst Zundel, saying, "Zundel was dragged through the courts for nine years ... MERELY for his UNPOPULAR views." [emphasis mine] Who are Michael Rothe, David Irving, Fred Leuchter, Eustace Mullins, and Paul Fromm, and what do they stand for? 2. Michael Rothe Michael Rothe is the owner of European Sound Imports, at 109 King Street W. in Kitchener. According to the K-W Record, he is a native of southern Germany, who came to Canada eight years ago. His stereo store might appear harmless on the outside, but on the inside, one can obtain anti-Semitic propaganda from a variety of sources. According to the Record, in addition to the book by Fred Leuchter mentioned above, one can also purchase a booklet on the court battles of pro-Nazi publisher Ernst Zundel. Rothe also believes that the Holocaust has been greatly exaggerated, and that there is a world-wide Jewish conspiracy behind it. "They want money. When they have money they have power," he has been quoted as saying. Although Rothe has claimed, "I have not seen a neo-Nazi before," according to the Record, he attended a recent "victory party" for Ernst Zundel, and Zundel was recently sighted at his store. When I asked Rothe if he knew what Irving would speak on, he claimed, "Irving comes to speak on Germany ... only Germany." When I pointed out that this was false, that Irving actually spends a significant portion of his speeches discussing how the Holocaust is a hoax, he repeated, "No, that is wrong -- Irving only speaks about Germany." However, the posters Rothe himself has put up belie this claim--they list the Holocaust as a topic of Irving's speech. 3. David Irving David John Cawdell Irving is a British "historian", born in 1938. According to David Cesarani of the Wiener Library in London, England, he attended Imperial College at the University of London, but never graduated. He holds no academic degree and no academic position at any university or college. He calls himself a "moderate fascist", and claims, among other things that the gas chambers at Auschwitz (in which an estimated 2-3 million people died) were "built by the Poles after the war as a tourist attraction." (For this remark, he was fined DM 10,000 by a Munich court in May 1992. The judge was quoted as saying that the gas chambers of Auschwitz were "an historically certain fact.") Irving denies being a "Holocaust denier" or "Hitler apologist", and seems willing to resort to legal action if necessary. In a recent fax printed in the K-W Record, he is reported as saying, "I have warned 22 British newspapers that I shall not hesitate to commence libel action if they use smear phrases such like 'Hitler apologist' or 'Holocaust denier' to embellish their writings." But Bernard Levin, writing in The Times of London in May of this year, quoted Irving as saying, "I hope the court will fight a battle for the German people and put an end to the blood lie of the Holocaust which has been told against this country for 50 years." Irving first entered the headlines in 1970. In July of that year, he was forced to apologize in the High Court of London for "making a wholly untrue and highly damaging statement about a woman writer."--not an auspicious start for someone who claims to be in pursuit of the truth. Later that year, Irving was back in the headlines, concerning publication of his book, "The Destruction of Convoy PQ17". Ostensibly an expose of an ill-fated 1942 Arctic convoy headed for the Soviet Union during World War II, it eventually resulted in Irving being fined 40,000 British pounds for libel. Irving's book faulted Captain John Broome, commander of the convoy at the time, saying he was guilty of "downright disobedience" and "downright desertion of the convoy." Broome brought suit against Irving for false statements, and won a judgment in August of 1970. Irving's lawyers appealed, and lost in March, 1971. The case is revealing because of what it says about Irving's abilities as a historian and his motives as an author. According to the Times of London, Irving showed a copy of the manuscript to Broome before publication. Broome objected to the accuracy of some thirty passages in the book, and threatened to sue for libel if Irving did not make changes. At that point, William Kimbers Ltd., Irving's publisher, notified him that they would not publish the book as it was then written. Later, Irving published the book with another publisher. The court found that Irving "was warned from most responsible quarters that his book contained libels on Captain Broome ... To make [the book] a success he was ready to risk libel actions ... Documentary evidence .... showed that [Irving] had deliberately set out to attack Captain Broome and in spite of the most explicit warnings persisted in his attack because it would help sell the book." The court labeled Irving's conduct as "outrageous and shocking." Irving's misrepresentations did not end with the publication of his book. According to Cesarani, in 1979, a German publisher had to pay compensation to the father of Anne Frank after printing the German edition of Irving's book, Hitler's War. Irving had claimed that Anne Frank's diary was a forgery. Irving claims that according to his "research", the Holocaust is greatly exaggerated. (He was recently quoted in the K-W Record as saying that the number of Jews who died in concentration camps was "of the order of 100,000 or more.") But during the 1988 trial of pro-Nazi publisher Ernst Zundel, he was forced to admit under cross-examination that he hadn't even read all of Eichmann's 1960 trial testimony. (In this testimony, Eichmann admitted that Nazi leaders discussed the so-called "Final Solution to the Jewish problem''-- extermination, in 1942.) In November 1991, a reporter from the Independent showed that Irving omitted crucial lines from a translation of Goebbels' diaries -- lines that would have contradicted his theory that Hitler knew nothing about the extermination of the Jews. Irving's record is clear: he is not an historian, and he has made false statements and been forced to apologize for them. As Andrew Cohen, reporter for the Financial Post, has said, "David Irving should be denied credibility." 4. Eustace Mullins According to analyst Chip Berlet of Political Research Associates, Mullins is quite simply, "the most vicious anti-Semite on the face of the planet." Eustace Clarence Mullins, born in 1923, is the author of a biography of Ezra Pound (a copy exists in the University of Waterloo library). But he is also the author of numerous truly bizarre tracts published by small Christian publishers. Some of these, like the excerpt recently posted and then removed by Kitchener store owner Rothe, are critiques of the banking system. Berlet says, "Mullins masks his anti-Semitism with a critique of the [U.S.] Federal Reserve System." In a 1952 book, Mullins wrote a book blaming Paul Warburg, Bernard Baruch, and other U.S. Jews for drowning Americans in debt. According to Mullins, The Federal Reserve Act of 1913 put the nation's banking reserves in the hands of the "Jewish International Bankers" for the purpose of carrying out a plan for world dictatorship. In a 1955 article entitled, "Jews mass poison American children", Mullins claimed that the polio vaccine, invented by Jonas Salk, was a poison because it contains live polio germs. Other books depict Jews as parasites, living off their gentile hosts. In what has to be one of the most bizarre of Mullins' beliefs, it has been reported by L. J. Davis that Mullins has claimed that the phrase "Have a nice day" is a code for Jews to begin killing Christians. Mullins' writings have been adopted wholesale by violent extremists in the US, such as the Posse Comitatus. Should we not be more than a little worried to see those writings appearing in the window of a store in Kitchener? 5. Fred Leuchter Rothe sells the "Leuchter report" in his store, a book purporting to be an engineer's refutation of the existence of gas chambers in Poland. (David Irving also uses Leuchter's report to support his claims.) What Rothe will not tell you, however, is that Fred Leuchter is not an engineer. Rothe also won't tell you that, according to the Boston Globe, Leuchter admitted to illegally collecting 20 pounds of building and soil samples in Poland, and that Leuchter's ``analysis'' has been thoroughly rebutted in a report by French pharmacist Jean-Claude Pressac. Pressac "noted that Leuchter never looked at documents in the Auschwitz Museum, and failed to study German blueprints of the gas chambers." Leuchter is a self-described expert in the construction of execution machines. With his false credentials, he convinced authorities in several states in the U.S. to let him construct execution machinery for their prisons. But in 1990, according to the New York Times, his misrepresentations began to unravel. The Attorney General of Alabama questioned his expertise. Illinois terminated his contract after determining that his machine for injecting cyanide would cause prisoners unnecessary pain. Then, in October 1990, Leuchter was charged with fraud in Massachusetts. It was revealed that he had only a bachelor's degree in history, and was not licensed to practice engineering in Massachusetts. In June 1991, to avoid a trial in which he would surely have been convicted, Leuchter admitted that, "I am not and have never been registered as a professional engineer", and that he had falsely represented himself as one. Under the consent agreement, Leuchter agreed to stop "using in any manner whatsoever the title 'engineer'", and to stop distribution of the Leuchter report. Despite the agreement, one can still obtain copies of the report from Rothe's store in Kitchener. According to the Boston Globe, Leuchter was deported from Britain in 1991. Leonard Zakim, a spokesperson for the Anti-Defamation League of B'nai Brith, said, "Leuchter's admissions of lying to promote his business in violation of Massachusetts law should serve to discredit Leuchter wherever he travels." **[See comments on Leuchter after this article] 6. Paul Fromm Paul Fromm claims to be the director of a group called "Canadian Association of Free Expression". While the name sounds innocuous, the truth is darker. According to investigative journalist Russ Bellant, Fromm helped found the Canadian neo-Nazi organization Western Guard. In a 1983 interview with a Toronto Star reporter, Fromm was caught dissembling. He said he "never had any connection" with the Western Guard, but the Star account revealed that Fromm himself had had a letter published in the Star in February 1973 that stated "... in May, 1972, many members, myself included, left the Western Guard...". Asked to explain the discrepancy, Fromm said in a Star interview that it was "a matter of semantics". In Julian Sher's 1983 account of the Ku Klux Klan, Fromm is reported as saying that belief of a supreme race "is a good idea." Remarks like this caused him to be kicked out of the federal Progressive Conservative Party. In September 1991, the Star reported that Fromm was ejected from a Toronto meeting on race relations after he blurted out, "Scalp them," while a native Canadian was speaking. In April 1992, the Star reported on Fromm's 1990 speech before the Heritage Front, a neo-Nazi organization advocating white supremacy. According to the Star, Fromm told the neo-Nazi group, "We're all on the same side." Fromm later claimed in a Star article that he hadn't known about the Heritage Front's neo-Nazi views. But Bernie Farber of the Canadian Jewish Congress disputes this. "He had to know," Farber said. "There was a Nazi flag with swastikas, about 10 feet long and 5 feet tall, just to his right. Furthermore, just a few months after the Star article came out, Fromm spoke again before the same group." 7. Conclusions Although the holocaust "revisionists" and their defenders claim to be in pursuit of the truth, the record says otherwise. Although some claim to be advocates of free speech, their real goal is a regime that would deny free speech, and more, to Jews and other minorities. It is easy to dismiss Rothe, Irving, Leuchter, Mullins, and Fromm as kooks. But according to statistics compiled by the League for Human Rights of B'nai Brith, anti-Semitism in Canada is at its highest level in a decade. There were 251 reported incidents of harassment and vandalism against Jews in Canada in 1991, up 42% from two years earlier. The reader may feel that anti-Semitism is only a distant threat. But consider this: many of the sources I sought in preparing this article are listed as ``missing'' in our University library. Some articles had been ripped out of magazines. Others books, though still on the shelves, I found to contain anti-Semitic or pro-Nazi graffiti. To repeat a saying attributed to Edmund Burke, "The only thing necessary for evil to triumph is for good men to do nothing." For Further Reading: Julian Sher, "White Hoods: Canada's Ku Klux Klan", New Star Books, Vancouver, 1983. James Ridgeway, "Blood in the Face", Thunder's Mouth Press, New York, 1991. Russ Bellant, "Old Nazis, the New Right, and the Republican Party", South End Press, Boston, 1991. Steve Mertl and John Ward, "Keegstra: The Trial, The Issues, and The Consequences", Western Producer Prairie Books, Saskatoon, 1985. James Coates, "Armed and Dangerous: The Rise of the Survivalist Right," Hill and Wang, New York, 1987. About the author. Jeffrey Shallit, who is not Jewish, is associate professor in the computer science department at the University of Waterloo. CODOH comments on Shallit's comments about Leuchter: Rothe sells the "Leuchter report" in his store, a book purporting to be an engineer's refutation of the existence of gas chambers in Poland. (David Irving also uses Leuchter's report to support his claims.) What Rothe will not tell you, however, is that Fred Leuchter is not an engineer. Fred Leuchter is self-trained in the extremely arcane field of execution equipment, and before smears such as Mr. Shallit's had their effect he worked for numerous state prison systems in the United States on the repair, upgrading, and replacement of said equipment. He has done work on gallows, electric chairs, gas chambers, and in fact is the inventor and builder of not only the automatic equipment used for lethal injection but also determined the type and sequence of the four drugs used to insure maximum comfort and a certain, painless death when physicians refused to offer any assistance in this area. At the second Zuendel trial in Canada, the judge recognized his expertise, and ruled that he was an engineer by virtue of experience and demonstrated ability, and therefore he would be allowed to testify as an expert witness regarding gas chambers. In some other areas, such as crematories, he was not allowed to testify. Rothe also won't tell you that, according to the Boston Globe, Leuchter admitted to illegally collecting 20 pounds of building and soil samples in Poland, and that Leuchter's "analysis'' has been thoroughly rebutted in a report by French pharmacist Jean-Claude Pressac. Pressac "noted that Leuchter never looked at documents in the Auschwitz Museum, and failed to study German blueprints of the gas chambers." The legality of the collection process has nothing to do with the validity of the analyses of same. This is but another example of the attempts to heap all possible negatives because of the damage his investigations have done to the accepted myths regarding non-existent gas chambers. His sample analyses have, in fact, been independently verified by the later work of both a Polish government commission, Austrian engineer Walter Leuftl, and the inarguably qualified German chemist, Germar Rudolf. Shallit does not indicate if Pressac indicates what relevance the "documents in the Auschwitz Museum" might have on the matter. Given that much of what is on display at Auschwitz are reproductions with obvious liberties taken to closer match wartime accounts, a fact only admitted in the last few years, one would have to be wary of whatever they purport to claim is documentation. And the plain fact is that no "German blueprints of the gas chambers" exist. What does exist are blueprints of the various Krema (crematoria) which supporters of gas chambers claim were "code worded" to hide the actual use to which they would be put. These blueprints do exist, and nothing on them supports the gas chamber theory--none of the special provisions one would expect, such as sealing, gas introduction equipment, forced air circulation of the closed room(s) or adequate ventilation are indicated. After a particularly traumatic cross-examination by the attorney for Prof. Robert Faurisson, during which Pressac became incoherent to the point of tears on the stand, he has retreated from any active defense of his extremely flawed work, and it is no longer cited by top-level historians. His alleged refutation of challenges to the existence of gas chambers is a huge embarrassment of a book now trotted out only by lay people such as Mr. Shallit, and professional promoters of the gas chamber myths. With his false credentials, he convinced authorities in several states in the U.S. to let him construct execution machinery for their prisons. Leuchter presented no false credentials. It is common for self-trained individuals, particularly in fields for which no academic accreditation exists, to advertise or present themselves as Leuchter did--an "execution engineer." His expertise in that field is amply demonstrated by work experience. Shallit's comments are based on the events following Leuchter's appearance in the Zuendel trial. A New York based group called Holocaust Survivors and Friends in Pursuit of Justice brought action in Massachussets based on an obscure and never tested state law saying that people working in areas involving public safety could not present themselves as engineers unless they were licensed as such by the state. Of amusing and revealing relevance is the fact that the charge was brought and supported by a judge that designing execution devices qualifies as working in an area involving "public safety"!! Surely this is close to the height of doublespeak. (See "The Execution Protocol" by Trombley, Crown Publishing 1992) But in 1990, according to the New York Times, his misrepresentations began to unravel. The Attorney General of Alabama questioned his expertise. Illinois terminated his contract after determining that his machine for injecting cyanide would cause prisoners unnecessary pain. The Alabama warden's actions were in response to Leuchter's having testified against the Florida prison system when an inmate brought suit against her electrocution sentence on the basis that the antiquated equipment there constituted cruel and unusual punishment, which it demonstrably did. The Alabama produced letter to other wardens warned them that if Leuchter tried to sell them equipment and they refused to buy, he might wind up testifying against them. This libelous and career threatening action might have brought great financial penalty on him and the state of Alabama were not Leuchter by this time a sufficient pariah who saw no hope of getting a fair shake in court. The comments regarding Illinois describe only an excuse given which has no basis in reality. Then, in October 1990, Leuchter was charged with fraud in Massachusetts. It was revealed that he had only a bachelor's degree in history, and was not licensed to practice engineering in Massachusetts. In June 1991, to avoid a trial in which he would surely have been convicted, Leuchter admitted that, "I am not and have never been registered as a professional engineer", and that he had falsely represented himself as one. Under the consent agreement, Leuchter agreed to stop "using in any manner whatsoever the title 'engineer'", and to stop distribution of the Leuchter report. See comments above about this charge. Leuchter did not at any time advertise himself as a "professional engineer" but only as an "execution engineer." He never "falsely represented himself as one" as Shallit states. It is not even illegal for him to advertise and work as an execution engineer unless one would seriously make the case that this involves public safety. It is not illegal in Massachussets to work and advertise as an engineer in a great many areas. Shallit's comment is based on surmise which is in turn based on ignorance of the terminologies and their meanings. The difference between "professional engineer" and "engineer" is not a trivial distinction. The title "Professional Engineer" (Massachussets equivalent "licensed engineer" in other locations "state certified engineer") is that used to legally certify documents as correct, and the certifier must in many states (but far from all) have certain qualifications (which vary) to do this. Such a certification places all liability on the certifying engineer for any errors, and absolves others of blame for implementing his mistakes--hence the legal importance. In Massachussets, it only applies to projects involving public safety, quite a stretch for Leuchter's expertise, which is directed toward insuring rapid death! Leuchter does not distribute his report, other entities do that. Trombley makes no mention of the report in his account of the case, only the matter of the use of the title engineer, which has nothing to do with the report since the report has nothing to do with work in Massachussets. Leonard Zakim, a spokesperson for the Anti-Defamation League of B'nai Brith, said, "Leuchter's admissions of lying to promote his business in violation of Massachusetts law should serve to discredit Leuchter wherever he travels." A typical ADL smear tactic, Leuchter's credibility is in no way discredited by the Massachussets/New York travesty of justice. A biased court surrounded by several hundred screaming demonstrators made a ludicrous interpretation of a law and applied it against an unpopular defendant. None of this has a thing to do with the scientific data contained in that report, data later supported by several other sources whose qualifications no one argues. Leanard Zakim's statement is pure and hateful propaganda intended to silence those who threaten his livelihood. David Thomas, 2/28/97 CODOH can be reached at: Box 439016/P-111 San Diego, CA, USA 92143 Comments from Fred Leuchter Dear David Thomas, Your remarks