JURI Committee Meeting

STANDING COMMITTEE ON JUSTICE AND HUMAN RIGHTS

COMITÉ PERMANENT DE LA JUSTICE ET DES DROITS DE LA PERSONNE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, April 28, 1998

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[English]

The Chair (Ms. Shaughnessy Cohen (Windsor—St. Clair, Lib.)): I apologize for my lateness.

Today we are still on estimates, and we have at the request of the Reform party Neal Sher, an adviser to the Department of Justice, and John Sims, assistant deputy attorney general for citizenship and immigration, Department of Justice.

It's nice to see you again. Do you have a brief?

Mr. John Sims (Assistant Deputy Attorney General, Citizenship and Immigration, Department of Justice): Madam Chair, if the committee permits, I will make a brief statement for about five minutes. I believe Mr. Sher then expects to make a brief opening statement as well.

The Chair: Thank you. Go ahead.

Mr. John Sims: My functions and responsibilities as the assistant deputy attorney general for citizenship and immigration law include having overall responsibility for the government's World War II war crimes program within the Department of Justice.

I am pleased to have this opportunity to address the standing committee to talk about Neal Sher's work with the Department of Justice and to answer any questions you may have in this regard. I would also welcome any questions on any other aspect of Canada's war crimes program if the chair thinks it would be appropriate to get into it today.

I shall be brief. I know you are here today to talk to Mr. Sher, but I thought it might be helpful for you if I were to explain in a few words why we decided to hire a consultant at all, why we picked Mr. Sher, what we have asked him to do, and perhaps as important what he is not doing.

Canada's war crimes program has recently made considerable headway. Building on many years of hard work, we have put together a strong team and an effective, fair program. We met the commitment to start 12 revocation of citizenship and deportation cases by March 1997. We have in fact now started 14 cases, and we have said we hope to continue this pace into the future.

We have done more than merely start cases. Four cases have already gone to trial, and five more trials will take place by December of this year. Two men have elected not to contest the government's case against them. We have our first judgment in the case of Bogutin, and we expect the second judgment in the case of Vitols soon. All this represents an unprecedented level of activity for the war crimes program in Canada.

While we think we have made significant progress, we also know that time is short and mistakes are high. Only a few years remain in which to deal with people in Canada who were engaged in reprehensible conduct during World War II. This is where our consultant comes in. If an outside expert could make our team even stronger and the program more effective, we wanted to enlist that person.

Having decided we could benefit from having an expert's help, we had to find the right person. Ours is a highly specialized business. There aren't many people anywhere in the world with the right mix of skills and experience. One obvious source of people with the qualifications and expertise we need is the United States government Department of Justice Office of Special Investigations, OSI. This led us to Neal Sher.

Since you are going to be asking Mr. Sher about his qualifications, I won't take any time now to list them for you.

I will close these brief remarks by describing what Neal Sher's job entails and what it does not.

Mr. Sher is a consultant to but not an employee of the Department of Justice. We retained him to give advice to the senior justice officials responsible for war crimes work. These are primarily Paul Vickery, the director of the war crimes and crimes against humanity section, and me.

From time to time, as the need arises, Mr. Vickery or I can call upon Mr. Sher for advice. That can be very valuable. OSI and Mr. Sher have been there before. OSI started this work many years ago, and some years before Canada did. They have already seen many of the same problems we are seeing now for the first time.

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As I said, time is short. If, say on three or four days a month, which is all Mr. Sher's retainer works out to be, we get wise advice from an expert who keeps us, to take a simple example, from reinventing legal arguments that have already been developed by others, then in my view it is an excellent arrangement.

Since I've seen some pretty erroneous speculation in the media about what people think Mr. Sher is doing, let me quickly list a few of the things he's not doing.

He is not the boss of the war crimes unit, nor does he investigate cases, question witnesses, act as court counsel, or decide on our litigation strategy. In fact, Mr. Sher doesn't decide anything. He's an adviser. We value his advice, but in the end we make our own decisions.

Madam Chair, I hope this brief overview will be helpful to you as you begin with the members your discussions with Mr. Sher. I look forward to any questions you may have later.

The Chair: Thank you.

Mr. Sher.

Mr. Neal Sher (Adviser to the Department of Justice): Madam Chair, it's indeed a pleasure and an honour to appear before this standing committee. It's a pleasure and an honour also to have been asked to assist the crimes against humanity and war crimes unit and Mr. Sims' office in their work.

Presumably I was retained by the ministry of justice because of my 15 years of experience at the Office of Special Investigations. The office literally started from scratch. I joined that office soon after its creation and served there for 15 years, 11 years of which I was the director.

As John Sims just briefly outlined, my expectation, my belief, my hope is that I will be in a position to share with the office and with Mr. Sims some of what I learned during my tenure at the Office of Special Investigations. Anything they can learn from me, learn from the experience that the U.S. government had, to help them in their very important and time-pressured mission, I think could be very useful and it's something I'm most eager and pleased to share with them.

OSI has an excellent track record. As John Sims noted, it was created many years before this office was created. Denaturalization proceedings, deportation proceedings, and watch listing of those Nazi persecutors who may have unlawfully come to America or who are now trying to come in—to the extent my work and experience there added to that record of success, I'm quite proud.

I should also note that during my tenure at OSI, I of course became quite familiar with the types of cases the Canadian office is investigating and bringing forward. When I was the head of OSI, I worked on a fairly regular basis with the people who then had responsibility for this effort, so I know the types of cases that are involved in the present investigations and inquiries: concentration camp guards, and members of units, such as the SS, police, and para-military organizations, involved in atrocities and persecutions.

The problem of uncovering and pursuing Nazi persecutors is certainly not unique to the United States; it's not unique to Canada. Those very people who committed the crimes, committed the acts of persecution that are at issue, fled post-war Europe and went all over the world. Many came to America, many came here to Canada, and many went to Australia. The problems in investigating these cases are not unique to any one western country. In many instances people who are being investigated by your office here in Canada served in the same units as the people I investigated and the OSI in America today is pursuing.

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Hence, because of this experience, I think I have some familiarity with the type of evidence that is needed and the difficulties and the techniques used in gathering that evidence, which is scattered all over the world.

These were crimes that were committed many thousands of miles away. Witnesses are literally all over the world. I have dealt with the documentary evidence, which comes from a variety of sources from eastern Europe, central Europe, western Europe, and the United States. The testimonial evidence comes from all over the world.

I have some familiarity with the archives. I have worked with the historians here. The chief historian for the unit in Canada was someone I originally hired to work for the OSI in the United States when she was living in Germany. I also have familiarity with a lot of the personalities of the people all over the world who are engaged in this work.

The experience the OSI has had and I have been involved with gives us an appreciation and an understanding for some of the arguments that undoubtedly the effort here is going to encounter regarding the reliability of evidence that came, for example, from the former Soviet Union. I have dealt with that evidence. I have dealt with German prosecutors who have dealt with that evidence. We have tested it. We are familiar with the allegations that have come out over the years that KGB supplied phony documentation. These are all arguments that may or may not come to light in this country and in this effort, but there certainly is that possibility. I am familiar with them.

I also know that after the collapse of the U.S.S.R., the war crimes unit here in Canada was granted full access to archives overseas in the former Soviet Union. I am very pleased to know the researchers are taking full advantage of these very important opportunities.

Hence, I think the inherent difficulties of proof that can arise in these cases are something I have had a lot of experience with. I recognize that the decision on the reliability, admissibility, credibility, and the weight to be given to any piece of evidence is something ultimately your courts will make, just as in the United States it was up to the American courts. I can share with the office, I can share with this distinguished committee, the experiences that OSI had with Soviet sourced evidence; in fact, that experience was universally very good. Courts routinely accepted that evidence. We tested the evidence scientifically. Not one incident of phony or fabricated documents was uncovered.

I even interrogated and debriefed former KGB officials who defendants in our cases claimed knew that the Soviet Union was submitting phony documents. We were told and our courts were told that this witness actually himself fabricated these documents. When we spoke to him and later deposed him with defence counsel cross-examining, it became clear that contrary to what was alleged by defence counsel, he confirmed that the evidence provided by the former Soviet Union was indeed legitimate, that he knew of no instance in which phony documents were sent to the west to be used in trials—an experience that was confirmed to me by the chief prosecutors in Germany, who for many years, commencing in the 1950s and 1960s, relied on Soviet sourced evidence and found it to be 100% reliable.

It is these sorts of experiences I suppose I have been very privileged to have had over the years, and I am hopeful they will be of use to the unit here.

I think my reputation at OSI was that I was a tough prosecutor but a fair one. I understood the importance of the cases. I also understood, as do the people now running the office, the time pressures that are involved. There is only a limited window of opportunity, for the obvious reasons, to pursue these cases. I know some people took issue with an expression I used and one that got into the media; the expression was “having a fire in the belly” in terms of the prosecution effort. That is a very simple phrase, which means that those who are engaged in this work understand the importance of it and that time is of the essence. But it also means you do it properly; that goes without saying.

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I should say that in my tenure at OSI, I closed hundreds upon hundreds of cases that will never see the light of day, even though in a vast majority of those cases, the vast majority, I had very good reason to believe the individual was involved in Nazi-sponsored persecution, was involved in atrocities. But I also recognized that my obligation as a prosecutor meant that I would not bring a case unless I thought I could win it, and hence I closed cases.

I'm familiar generally with other contentions that have been made about how OSI operated. One thing I would add in terms of how we pursued our mission is this. We brought a case, I personally signed a complaint and personally prosecuted the case against a Jewish couple, a Jewish guard at a concentration camp who had lost his first family before his eyes. Yet the evidence was such that we believed he did not deserve American citizenship because of acts he had engaged in. We brought that case, and we stripped this person of citizenship.

We investigated as well, and we have put on the watch list, Japanese alleged war criminals.

I'm not an expert in Canadian law and Canadian procedure. I would be foolish to pretend to be. I know there are similarities between your system and the system I am trained in.

As John Sims mentioned previously, my role is to advise, to make suggestions, to express views and opinions as to how the American experience, which is a very extensive experience, might be of benefit to the effort here. Mr. Vickery, Mr. Sims, and the others are of course free to disregard what I say, not to take my advice, listen to it, or what have you. They also know that time is certainly of the essence.

I know there are a lot of questions that might want to be asked, but I have also read materials that have been sent to me and I know have been circulated to members of Parliament. Regarding some of the criticisms about my being hired, it would be foolish for me to pretend I don't know about these. It didn't really surprise me, quite frankly; in fact, I commented and joked to John Sims that it made me feel like a much younger man, because I was under criticism 15 years ago, when I was at OSI. It comes with the territory, and one expects it. I've read the correspondence.

Most of the focus I think is on the Demjanjuk case. But there also is an underlying attack against the approach the government now is using, which is that of denaturalization and deportation. I of course fully agree with and endorse that approach. It is one that the United States has been engaged in since 1979. It is also one that the U.S. courts have routinely and regularly found to be acceptable under our law.

As to Canada, I would note simply that the Deschênes report of almost a decade ago identified not just the criminal trial approach, but also stated as an appropriate and fully justified approach that of denaturalization and deportation.

Particularly, the most recent decision, the Bogutin case to which Mr. Sims alluded, suggests to me that your court system here, your judiciary, has also said that approach is appropriate under your laws. John Sims is of course much more the expert in that, and perhaps specific questions can be addressed to him.

Turning to Demjanjuk, which I know is an issue that has been raised, I thought it was important for me to address it upfront and head-on. That case has been extensively reviewed by many courts in the United States, and in particular there have been in-depth reviews of the way in which the matter was handled by the prosecutors. The prosecutors in that case were a combination of lawyers from my former office, OSI, and the United States attorney's office in Cleveland, Ohio, where Mr. Demjanjuk resides. Attacks had been made against those lawyers, including some who worked at OSI during my tenure, as both the deputy director and the director of OSI.

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As to the conduct of the federal prosecutors, some time in 1992 a federal trial judge, Thomas Wiseman, was specifically appointed as a special master, appointed by the court of appeals for the sixth circuit, which sits in Cincinnati. Judge Wiseman's mandate—he's a full-fledged federal trial judge—was to fully explore the allegations of misconduct and improprieties on the part of those who prosecuted the Demjanjuk case in the United States. His role, his charge, was to make factual determinations and recommendations as to any potential course of action that should be followed.

Judge Wiseman has a reputation, had then and still does, as a very tough and experienced trial judge who has also in the ranks of federal prosecutors a reputation for putting the government to its task. He conducted an extraordinarily unique and extensive inquiry, which lasted for over a year and a half, in which testimony was taken in front of him, depositions were taken. I gave a deposition. It wasn't in front of a judge, but a deposition was taken by Demjanjuk's attorneys, documents were turned over, and derogations were propounded. It was really extraordinary.

Judge Wiseman in 1993 issued a 210-page decision, which can be made available. I don't have copies—it's quite extensive—but it's a matter of the public record. He addressed head-on the principal allegation made by Demjanjuk, which was essentially—and I'm making this as concise as I can—that the prosecutors acted fraudulently and in bad faith, essentially in not turning over to Demjanjuk information that would have been useful and helpful in his defence.

Judge Wiseman found, as a trier of fact who saw the evidence, saw the demeanour of the witnesses, that there was no fraud on the part of the government. He found that the government attorneys at all times acted in good faith. Specifically, he found, and I'll quote now:

The individuals who composed the team which prosecuted Mr. Demjanjuk acted in good faith. They did not intend to violate the Rules or their ethical obligations. They were not reckless; they did not mistake facts or the law as they understood them, and did not make statements in ignorance while aware of their ignorance. Although they were blinded to what we may now perceive to be the truth, they were not wilfully blind.

Those were the findings of the trier of fact. Now he certainly acknowledged, and we all acknowledge, that mistakes were made during the course of that litigation, and Judge Wiseman in his decision gives explanations for that, such as the convergence of several offices, the fact that OSI was newly established, and other problems between various components of the justice department. He sets all of it out.

Obviously I wish the mistakes that were made had never been made. Also, and equally obviously, as the head of the office I bear a certain overall responsibility for everything that happens within the office. One has to take the good with the bad.

I would note, though, that Judge Wiseman, as to my conduct, didn't even mention me and considered me and others to be basically less significant witnesses. He did not demand that we testify in front of him.

The essence of the problems that arose in the Demjanjuk prosecution had to do with protocol, with the statements of former Soviet prisoners who served at the Treblinka death camp. Those statement were not turned over to Mr. Demjanjuk, although they had been given to the U.S. government in a different case in the 1970s. I first saw those protocols, as Judge Wiseman points out in his decision, in 1991, well after Demjanjuk was in Israel, in conjunction with a Freedom of Information Act request.

I would say that even Demjanjuk's lawyers in their briefs to the court, their arguments to the court, both oral and written, did not personally attack anything I had done. And the Office of Professional Responsibility in the U.S. Justice Department rejected any suggestion that I personally had acted improperly. Indeed, they rejected all allegations that anyone at OSI or anyone else who prosecuted the case had acted improperly.

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Judge Wiseman's decision, the 210-page factual determination and legal recommendations—he recommended, by the way, that nothing further be done with the case, that there was sufficient independent evidence, even if Demjanjuk was found not to be Ivan the Terrible at Treblinka, to strip him of citizenship.

That recommendation went up to the court of appeals, the court that had appointed him. The court accepted the factual determinations that Judge Wiseman had made that there was no fraud on the part of any of the lawyers, that the attorneys acted in good faith.

Nevertheless, the court ruled that it was indeed a fraud upon the court, finding that even though none of the individuals violated any of their obligations, there was a reckless disregard for the truth—their words. I was not very pleased with that, of course. That should come as no surprise.

I was also troubled, as were many people, by the conclusion that even though they found that no individual had acted recklessly or fraudulently, there was a fraud on the court. It seemed to be an oxymoron that you had what a lot of people described as “good faith fraud”, a concept in the law I was totally unfamiliar with.

So I respectfully disagree with but of course accept what the court has said, and there are many others in the same category. As recently as February 1998 there was a column in the Chicago Law Bulletin by a criminal defence lawyer taking issue with that. A professor from Northwestern law school wrote a lengthy article in Hastings Law Journal in 1994. Professor Alan Dershowitz, congressmen in the United States House of Representatives, the Anti-Defamation League—all were critical of that decision.

In any event, that decision is there and it stands, and and I wish that the mistakes they cite had never taken place. Within the last month or so Demjanjuk's citizenship has been restored essentially on the strength of the finding of the sixth circuit, which I just mentioned. However, that judge, Federal District Court Judge Paul Matia from Cleveland, in his ruling—he adopted the findings of the sixth circuit—made it very clear and left the door wide open for the U.S. Justice Department, based upon the non-Treblinka evidence— He invited the government to continue to pursue the case against Demjanjuk.

There has been no public announcement by United States Attorney General Janet Reno, but there is absolutely nothing to suggest— All the information that I have gleaned leads me to say that I would be extraordinarily surprised if the U.S. government does not take up the judge's clear invitation to pursue the very serious charges against Demjanjuk.

Since the Demjanjuk case, as we all know, has been central to the claims that have been raised in conjunction with my appointment to help Mr. Vickery and Mr. Sims, I think it is important to look at the context and the overall background of the Demjanjuk litigation. I think the starting point there is the decision that set him free, and that was the July 1993 decision by the Supreme Court of Israel, five distinguished jurists.

The Israeli Supreme Court found they had what they described as gnawing doubts that Demjanjuk was Ivan the Terrible. I would say, however, that as the evidence came out during the appeals process that ultimately led the court to have these gnawing doubts, the Israeli prosecutors, a very distinguished cadre of attorneys, including the Attorney General of Israel, retreated not one iota from their belief that he was Ivan the Terrible, based upon the very powerful testimony of the survivors from Treblinka.

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The Israeli Supreme Court accepted the lower Israeli trial court factual determinations and the identifications made by the Treblinka survivors that Ivan Demjanjuk was the person they knew to be Ivan Grozny or Ivan the Terrible, who manned the gas chambers at Treblinka. They accepted those findings. But they also noted that during the pendency of the appeal, which took a number of years, the Israeli prosecutors, the same people who never retreated from their contention that he was Ivan the Terrible—not the defence, but the Israel prosecutors—found documents in the former Soviet Union—by the time the appeal was heard the Soviet Union had collapsed—and witness statements suggesting that the man known as Ivan the Terrible was one Ivan Marchenko.

Based on that, even though there are a lot of questions and curiosities about the name Marchenko, not the least of which is that when Demjanjuk applied to come to America, on his visa application he swore to American immigration authorities, and later when he came to America and when he saw the social security application, that his mother's maiden name was Marchenko.

When this came out in Israel, he said it was a lie, that he made that name up out of whole cloth. Since this came up in the appellate procedure there was no basis on which to get into these facts, but it was, as the Israeli prosecutors noted in their summations, quite curious. And there were other people who lived in the outskirts of Treblinka who identified Demjanjuk as the man they knew as Marchenko.

In any event, there were enough questions, enough of these gnawing doubts, as the Israeli Supreme Court said, that they could not convict him beyond a reasonable doubt of being Ivan the Terrible at Treblinka. If anyone thinks that was a finding that Mr. Demjanjuk was innocent or a man not with blood on his hands, all one has to do is to read the Israeli Supreme Court decision. They could not have been clearer. They could not have been clearer as to his role in the Holocaust, in the final solution of the so-called Jewish problem.

The Israeli tribunal confirmed the lower court findings that he was a member of the wachmanner, a wachman, a guard at an infamous unit that trained in Poland. In the words of the Israeli Supreme Court, this Trawnicki unit was established for one purpose—to study and teach its members how to exterminate, annihilate, destroy, and bring about the final solution of the Jewish problem.

The judges also confirmed that Demjanjuk served at the mirror image of Treblinka death camp, the Sobibor death camp, and was a guard in Germany toward the end of the war at the Regensbürg and Flossenbürg concentration camps, and also cited the documentation from the Soviet Union and West Germany that he served at the Maidanek concentration camp in Lublin, Poland.

It's important to understand what it meant to have been a wachman at Treblinka or Sobibor. That was known as Aktion Reinhard. In a period of less than two years, nearly two million Jews—maybe 1.7 or 1.8 million— And only Jews were destroyed at Sobibor, Belzec, and Treblinka. That was the only reason those camps existed. They weren't slave labour camps. They weren't work camps. They were factories of death. Jews arrived and within two hours they literally were smoke.

These camps were of course run and headed by SS officers, but auxiliary wachmanner, many from eastern Europe and many of whom were former Soviet Red Army POWs like Demjanjuk, who was from Ukraine— There were fewer than 400 wachmanner who served in a period of a year and a half at these three camps, who did nothing day in and day out except destroy 1.8 million people. If someone worked at Treblinka, Sobibor, or Belzec, they had one job, and that was to kill Jews.

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The Israeli Supreme Court determined that at a minimum, Demjanjuk worked at Sobibor. What's the evidence of that? The evidence first and foremost was what has become perhaps one of the most scientifically tested and analysed documents in the annals of western jurisprudence, and that's the Trawnicki document, a card issued to Demjanjuk with his photo, handwriting, and biographical data on it, including his father's name, place and date of birth, and an SS ID number—1393.

The original of that document was brought to the United States for forensic testing, and it was tested. Demjanjuk's lawyers had an opportunity but chose not to test it. It was brought to Israel, where it was tested by some of the world's leading experts. The photograph went through a very dramatic testing to show that it was indeed a photo of Demjanjuk. That document posted Demjanjuk to Sobibor in March 1943.

Demjanjuk admitted that he had a blood-type tattoo under his left arm. Historians say, and there's no dispute over the fact, that only members and affiliates with the SS got that blood-type tattoo. Demjanjuk admitted that he had the tattoo, admitted he cut it off, but came up with a story that nobody believed as to how he got it. When I say no one, I mean every judge who saw it.

There were the same types of statements that ultimately led to his exoneration on the Treblinka charges, testimonies from former Sobibor guards that identified Demjanjuk as having served at Sobibor. Documents from West Germany surfaced during the appeal in Israel, and these confirmed his service at Sobibor and three other concentration camps.

When he applied to the United States, in addition to saying that his mother's maiden name was Marchenko, which he disclaimed later on, he was asked where he was between 1934 and 1943. He said he was a farmer in a place called Sobibor, Poland. I would venture to guess that most maps don't even have Sobibor on it. It's such a small place. It was known for one thing—the destruction of Jews. But for the death camp there, no one ever would have heard of Sobibor.

In the United States and in Israel, Demjanjuk came up with several different versions as to why he claimed Sobibor as where he was. The courts, in particular the Israeli Supreme Court, rejected it out of hand and said there is only one reason for someone to put down Sobibor on their application, and that is because they were there.

I am confident that the United States government is going to continue to pursue Demjanjuk, and with good reason. I thought it was important because so much of the material that I've seen, that I know you have received, focuses on Demjanjuk, and I think it is not unimportant to keep it in the proper context.

I will close my remarks by reiterating that I am now a private lawyer in Washington, but one of the things I am most proud of is to work with your prosecutors and offer whatever help might be useful to them. I would add that I've been most impressed with the vigour I've seen among staff members of the office here. It's reminiscent of the atmosphere I found at OSI, and to me that's very heartening. I look forward to helping them in any way possible, and I now look forward to receiving your questions.

Thank you.

The Chair: Thanks, Mr. Sher.

I'll just put my colleagues on notice that I have a couple of questions. I hope you'll be generous with your time, or I'll just gavel you.

Go ahead, ten minutes.

Mr. Jack Ramsay (Crowfoot, Ref.): Mr. Sims, thank you for being here. I may have a question or two for you as we go on

Mr. Sher, I thank you for coming.

Mr. Neal Sher: It's my pleasure.

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Mr. Jack Ramsay: Of course I originated the request that you appear here because of a significant number of letters, faxes, and e-mails received by my office from individuals concerned about your appointment to the Canadian Department of Justice, and you have covered some of those concerns.

The majority of these concerns have centred upon individual cases handled by the Office of Special Investigations, or OSI. I understand, as you've indicated in your opening remarks, that you were the director of that unit for some eleven years and were attached to that unit for some three to four years before that. I also understand that the main function of the OSI, which is and was part of the U.S. justice department, was to deal with the suspected Nazi war criminals living in the U.S.A.

The majority of the concerns reaching my office centre upon the denaturalization of John Demjanjuk and his extradition to Israel to stand trial for the crimes committed by Ivan the Terrible, who was a guard at the Treblinka extermination camp in Poland. It is reported that close to 900,000 men, women, and children, mostly Jewish citizens, were put to death at that camp. Ivan the Terrible operated one of the diesel engines that pumped gas into the hermetically sealed chambers after the victims had been crowded into them, and was reported to be a sadistic and vicious individual.

On the basis of evidence produced by the OSI attorneys, John Demjanjuk was determined by the courts to be Ivan the Terrible. He was denaturalized and extradited to Israel to stand trial. He was convicted of murder and sentenced to death. The Israeli Supreme Court overturned the conviction and freed Mr. Demjanjuk. However, he spent some seven years in prison, according to my understanding.

On November 17, 1993, the sixth circuit court of Ohio determined that OSI attorneys procured Demjanjuk's extradition as a result of prosecutorial misconduct that constituted fraud upon the court.

I think that it's necessary, because of the time that you've taken dealing with that case, just to read from the decision of the United States court of appeals for the sixth circuit. This panel of judges was headed up by Chief Judge Merritt, Circuit Judge Keith, and Senior Circuit Judge Lively.

They state in this decision that the extradition order of Demjanjuk to Israel was based solely upon the district court's findings that Demjanjuk was Ivan the Terrible. The special master you referred to, Judge Wiseman, considered six specific claims by Demjanjuk that acts and omissions of OSI attorneys described therein constituted prosecutorial misconduct or fraud on the court.

This panel of three judges stated this:

In each case the master found that government attorneys had failed to disclose or produce documents or other materials that should have been subject to disclosure or production under outstanding discovery requests—

And they say:

Finally, and most significantly, as early as 1978 or 1979 the government had information from official sources within the Soviet Union indicating that there were two Ukrainian operators of the gas chambers at Treblinka—Ivan and Nikolai—and that “Ivan Grozny” was a man named Ivan Marchenko, not Ivan Demjanjuk.

On page 26 of their judgment, they state this:

The OSI attorneys acted with reckless disregard for their duty to the court and their discovery obligations in failing to disclose at least three sets of documents in their possession before proceeding against Demjanjuk ever reached trial.

They refer to the Fedorenko protocols. The Fedorenko protocols they describe this way—and it was in the possession of the OSI in 1978:

This evidence— including the statements of two former Treblinka guards, Malagon and Leleko— both name a man other than Demjanjuk as the notoriously cruel “Ivan the Terrible” who ran the motors of the gas chambers.

Also accompanying this evidence was a list of guards transferred out of the Trawnicki, Poland, training camp on which Demjanjuk's name did not appear. They also refer to the Polish government's list of guards at Treblinka, which is called the Polish main commission list. It was in possession of the OSI by 1979. They state that:

This evidence consists of an article published by the Polish Main Commission, —which partially lists names of known guards at Treblinka. The name Ivan Marchenko appears on the list. Demjanjuk's name does not appear on the list.

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Then they add this, which is very disturbing to me:

At the time the OSI received this list— it already had Leleko's statement identifying “Nicolai” and Marchenko as two different people who operated the gas chambers. (Nicolai was identified in documents later received from the former Soviet Union sources as Nicolai Shalayev, who gave a statement in 1950 that he and Marchenko were the two gas chamber operators.

That evidence was in the hands of the OSI attorneys in 1979, before they began their legal action against Demjanjuk.

I would like to conclude by reading further from their judgment. They said this:

Thus, we hold the OSI attorneys acted with reckless disregard for the truth and for the government's obligation to take no steps that prevent an adversary from presenting his case fully and fairly. This was fraud on the court in the circumstances of this case where, by recklessly assuming Demjanjuk's guilt, they failed to observe their obligation to produce exculpatory materials requested by Demjanjuk.

For reasons set out herein we vacate the judgment of the district court and the judgment of this court in the extradition proceedings on the ground that the judgments were wrongly procured as a result of prosecutorial misconduct that constituted fraud on the court.

It is clear to me that you still think that Mr. Demjanjuk is Ivan the Terrible. In fact, I have a note here that you made the statement that he was a mass murderer after your appointment to the Canadian justice department. Is that true? Do you still feel that Demjanjuk is Ivan the Terrible?

Mr. Neal Sher: Mr. Ramsay, I don't think anything I said here today was to the effect that I believe he is Ivan the Terrible. What I said was that anyone reading the decision of the Supreme Court of Israel, the very decision that turned him free— It is quite clear they considered him to be a guard. They found him to have been a guard at Sobibor; they found him to have been a guard elsewhere. To have been a guard at those places ipso facto meant to have been involved in mass murder. That is what I said.

I accept the ruling of the Supreme Court of Israel; that is the final adjudication. As far as I am concerned, the determination as to whether he was Ivan Grozny, Ivan the Terrible, at Treblinka has been finally adjudicated, and that is where the matter rests. I accept what the Israeli Supreme Court said. There are many people who thought that, based on their other findings, they should have kept him in prison, but in terms of the findings on whether or not he was Ivan the Terrible, that is the final decision, which I accept.

Mr. Jack Ramsay: Did you make the statement to the news media that you considered him to be a mass murderer?

Mr. Neal Sher: I consider him to have been involved in the Holocaust. To have been a guard at Sobibor was to have been a participant in mass murder.

Mr. Jack Ramsay: Okay, thank you.

I have one other case to deal with. Can I deal with it now?

The Chair: I'll come back to you.

Mr. Jack Ramsay: Thank you.

The Chair: Mr. Mancini.

Mr. Peter Mancini (Sydney—Victoria, NDP): Mr. Sher, I am going to follow up a little bit on Mr. Ramsay's questions. With regard to the Demjanjuk prosecution, you are a consultant to the Canadian government. You are a lawyer in private practice in Washington. Are you also a consultant to your own government in further prosecutions of Mr. Demjanjuk? You've indicated here—

• 1635

Mr. Neal Sher: The answer is no.

Mr. Peter Mancini: Okay. You indicated you're confident the government would continue to prosecute.

Mr. Neal Sher: That's my sense.

Mr. Peter Mancini: With regard to being a consultant to the Canadian government, roughly how many times have you been called upon in the last three or four months by the Canadian government for advice?

Mr. Neal Sher: There are a number of ongoing matters that I have discussed with Mr. Sims and Mr. Vickery that brought me here. I've met with them and with members of the staff. I do some work back in Washington; I do some work here. I've also spent quite a bit of time preparing for this.

So on the last number of trips, John, I don't know how many there were. The last two or three trips have focused on the issues we anticipated would be raised.

I don't think, quite frankly, since this is a public hearing and there are members of the press, that it would be appropriate for me to disclose some of the specific things I'm working on, but we are in communication. As I say, there are issues where there is a significant overlap with what I had done at OSI and what the ministry here is doing.

Mr. Peter Mancini: I'm not asking you to talk about specific cases you're involved in. Mr. Sims indicated, and I'm going by my memory here, something like three days a month on consultation.

Mr. Neal Sher: I've been in Ottawa three or four days per month. I've also done some work back in my office in Washington, etc., but that's how it's averaged out.

Mr. Peter Mancini: So it would be in Ottawa three days a month with other consultation on the phone—

Mr. Neal Sher: Yes, that's right.

Mr. Peter Mancini: Mr. Sims, perhaps I'll go to you, because you indicated you're prepared to answer the questions, and I'm glad you are.

What is the cost to the Canadian government of the consultation so far? Can you indicate to me what's anticipated, what's budgeted for?

Mr. John Sims: We have a contract, sir, that is open-ended, but with a ceiling. When we call upon Mr. Sher he keeps accounts and sends them to us. He's an American attorney and he is billing us at the rate of $200 an hour, which is the fee the Canadian government pays a senior counsel of Mr. Sher's stature. There's a ceiling of $75,000 in this account.

Mr. Peter Mancini: I could say $200 American or $200 Canadian, but I won't.

The Chair: You aren't billing right, Mr. Sher?

Mr. Neal Sher: Considerably higher—

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): American funds—

Mr. Neal Sher: Yes.

Mr. Peter Mancini: Mr. Sher, as Mr. Ramsay, I've received numerous pieces of correspondence, particularly from the Ukrainian community. You've indicated you are aware of the concerns of that community, so I'm going to give you an opportunity perhaps to put this on the record. What can you say to those people who are so concerned that perhaps there might be an overzealous prosecution of people in that community?

Mr. Neal Sher: I would not have a concern for that if I were a member or a leader of that community, seeing the way in which the office is operating and has operated, seeing the standards they apply. It's important to understand, and this is not limited to any particular ethnic community, that anyone who has been prosecuted or who has been brought up on charges who comes from any particular community should not be viewed as a condemnation, of course, of that entire community.

• 1640

Canada, as the United States, is a nation of immigrants. Certainly in the United States—and I can't speak to Canada, but I'm sure it's the same experience—each and every ethnic community, any group of immigrants from eastern Europe, central Europe, western Europe, Asia, South America, all over, has made significant contributions to their new-found homelands. And I know that's the case in Canada. The notion that because a particular individual happens to be a member of an ethnic group under no circumstances should be viewed as a condemnation or as an attack against that other group.

That was a point I tried to stress in the United States when I was the head of the office. It's very important, and frankly it should go without saying, but sometimes things have to be stressed, and I would stress that.

Mr. Peter Mancini: Mr. Ramsay has referred to the judgment in the Demjanjuk case. Sadly, no nation has exclusive ownership of wrongful convictions. In this country we've had our share. Are you familiar with—and I know they're outside the war crimes area—the Marshall inquiry and the Morin inquiry in this country?

Mr. Neal Sher: Which inquiry, sir?

Mr. Peter Mancini: The Marshall inquiry into a wrongful conviction in the criminal justice system, or the Morin inquiry in this country.

Mr. Neal Sher: I'm afraid I'm not.

Mr. Peter Mancini: They're outside the war crimes area.

Thank you. Those are my questions.

The Chairman: Thanks. Peter MacKay.

Mr. Peter MacKay: Thank you, Madam Chair.

Mr. Sher and Mr. Sims, we appreciate your appearance here today.

Mr. Sher, you've made, in my opinion, a very compelling case for another prosecution perhaps of Mr. Demjanjuk. However, as have my colleagues, I have received a number of documents that indicate there were, at best, some indiscretions exercised by OSI, which was under your control at the time. And even in the language you used today when you spoke of winning a case, you spoke of your personal involvement and commitment to some prosecutions. You mentioned the phrase “a fire in the belly”, or aggressiveness. In one of the documents I saw the phrase “imaginative law enforcement techniques”.

Like you, I'm a former prosecutor, although not nearly a prosecutor of your experience. However, in Canada one of the fundamental principles I was always told to operate under was the obligation to be fair and impartial and to always disclose what would be potentially exculpatory evidence.

My colleague Mr. Mancini has mentioned a number of cases in Canada that resulted in inquiries—the Morin inquiry, David Milgaard was another, and one in Nova Scotia of Donald Marshall.

I'd like to ask you a little bit about your familiarity with Canadian law and charter implications in particular. How much briefing or experience have you been given to prepare you for the advice that you are in turn providing to our Department of Justice officials?

Mr. Neal Sher: I'm glad you asked that, because it gives me an opportunity to stress and perhaps make clear something that had not been made clear in my initial presentation, although it might have been alluded to.

The term “imaginative law enforcement techniques”, and what have you— Imaginative thinking is something I look for in any junior attorney I hire to work for me now; that's just something that is very useful. Having said that, and having said that, yes, you want someone who has a commitment to the prosecution, it also goes without saying that one has to abide by whatever rules govern the standards of conduct of a prosecutor. This leads me to the second part of the question.

I will be very candid. I am not familiar with charter implications. I am not thoroughly familiar with what the standards are of disclosure and discovery. I think I have a general sense of it. As Mr. Sims mentioned in his statement, those are precisely the types of issues I have no intention of getting involved in. I wouldn't deign to offer advice. That is something only the Canadian prosecutors can decide. I might have an interest and be curious as to what they're doing, but that's certainly nothing I would even dream of rendering advice on.

• 1645

Mr. Peter MacKay: Mr. Sher, I guess—

The Chair: Excuse me, Peter. Mr. Sims signalled that he wanted to say something.

Mr. John Sims: Thank you, Madam Chair.

Mr. MacKay, Mr. Sher has just made the point that I was going to emphasize. At the end of the day, we make the decisions and bear the responsibility for compliance with Canadian law, including the charter. I think Mr. Sher has given the rest of the answer I would have given.

The Chair: Go ahead, Mr. MacKay.

Mr. Peter MacKay: All right. Mr. Ramsay has gone through a great deal of factual information. You have rebutted some of that in your opening statement. One question that I am still left with, and one that troubles me, is the allegation that you did not reveal evidence that was to the contrary. And this is aside from your statements with respect to other information that may be available about a different role that this individual, Demjanjuk, might have played.

But what do you say to the suggestion that there was information in your possession while at OSI that was discarded, was put in a dumpster outside a building somewhere, and was not revealed or not disclosed to the accused or his attorneys?

Mr. Neal Sher: I think it's important that you're raising this dumpster issue. It's very understandable that there can be a blending and a confusion of several different aspects.

The gravamen of the problems that were raised in the Demjanjuk case, which led to, Mr. Ramsay, what you read from in the court of appeal's decision, had to do with the non-disclosure by the prosecutors of essentially several statements that were obtained in 1978, I think, frankly, before OSI was created. OSI wasn't created till 1979. There were some documents that were turned over to the justice department and eventually came into the possession of OSI in a different case, documents that weren't turned over in the case you're talking about.

That is the bottom line. Judge Wiseman, the finder of fact, said they should have been turned over, but he said there was no intent to defraud, no intentional effort to conceal. Mistakes were made. And I wish those mistakes had not been made. Would it have been better if they had been turned over? Absolutely. There's no contention about that.

I intentionally decided not to come here and talk about my specific role or lack of role, but suffice it to say that decisions—and I think those of you who are lawyers know about it, and you were a prosecutor, Mr. MacKay—about what documents to turn over, certainly under the American system, are made day in and day out. They are of the most routine nature. As the head of the office or the deputy, let me say that we would have 30 cases going at any time, and discovery was an ongoing process. The lawyers would not necessarily bring it to the front office's attention unless there was something a bit unusual. Under the American system, one side asks questions and asks for documents and the other side responds in a variety of ways.

So none of that came to my attention. I learned about these critical documents in 1991, after everything had taken place. Do I wish they had been turned over in 1978, 1979 or 1980 or whenever? Absolutely.

Mr. Peter MacKay: Finally, Mr. Sher—I appreciate what you're saying—I must say, and I think you would agree, that prosecutors don't approach all of their cases with the same eye to detail, as much as we might like to.

And I would suggest that the nature of the types of cases that you obviously were involved in prosecuting was of such a serious nature that as much as a terrible miscarriage of justice can arise from information not being disclosed in this country, an equally troubling scenario can arise when information is not disclosed and the person is in fact guilty. And yet, because of the exclusionary rules that result in certain cases, a guilty person goes free because of the handling of the case. So there are two potentialities for disaster.

• 1650

Mr. Neal Sher: I agree completely with you. There's nothing to disagree with in what you say. That's exactly why there are rules of discovery and why there are obligations. I agree.

I don't know if I can be any clearer about it. Mistakes were made. I wish they hadn't been made.

Mr. Peter MacKay: All right. Thank you.

The Chair: Thanks, Mr. MacKay. Now Mr. Telegdi.

Mr. Andrew Telegdi (Kitchener—Waterloo, Lib.): Thank you, Madam Chair.

Mr. Sims, one of the concerns I've had recently in terms of our taking in of refugees and immigrants from war-torn countries is that we do adequate investigation as to whether or not we're admitting any war criminals from the current strife. I have expressed my concern that not enough resources are being allocated in that regard.

I certainly hope you are battling for that in your area.

Mr. John Sims: I am, sir. When we turn to the modern period, the burden shifts somewhat to the Department of Citizenship and Immigration. The Department of Justice and my group are certainly heavily involved, but the responsibility for a system that is sufficiently alert to spot war criminals among people claiming, for example, convention refugee status, or coming in via some other fashion, lies in the first instance with the Department of Immigration.

As you may know, the Minister of Citizenship and Immigration is at the very moment undertaking a serious top-to-bottom review of the entire immigration legislation. I'm sure one of the issues on her agenda is a concern of the type you've just mentioned.

So we're certainly very aware of the problem.

Mr. Andrew Telegdi: Thank you. I raised that because we know it's very difficult to deal with, particularly those kind of cases, and particularly with the passage of time.

Mr. Sher, in terms of justices the OSI has dealt with, and in the case of Ivan the Terrible in particular, what comments do you have regarding Judge Gilbert Merritt of the sixth circuit court of appeals, who moved to extradite Ivan the Terrible to Israel, and the subsequent comments he made about the OSI?

Mr. Neal Sher: I think I've tried to deal with them in both my comments and my responding to some inquiries by Mr. Ramsay.

His rulings speak for themselves. I do not necessarily agree with the legal conclusion he draws from the facts, which everyone accepts, but that is the statement the court made, and it stands.

Mr. Andrew Telegdi: I had assumed you agreed with his rulings and with expediting Ivan the Terrible to Israel.

Mr. Neal Sher: Of course we agreed with it. The problems that came up did so subsequent to that.

Mr. Andrew Telegdi: Afterwards, he's quoted as saying—and if I'm wrong in my quotes, you correct me—that:

Today we know that they—the OSI, the prosecution in the case and the State Department—lied through their teeth. Even then they knew without a doubt that Demjanjuk was not Ivan the Terrible, but they hid the information from us. I am sorry that I did not have the information at the time. If I did, we would never have ruled in favour of his extradition to Israel.

Mr. Neal Sher: Now I see where you're getting that from.

He did make those comments, but not in the decision. He made those comments, if I'm not mistaken, in November 1997, in a very extraordinary interview with an Israeli newspaper, talking about a case that is still open, which is rather unusual for a Court of Appeals judge, or any judge.

Frankly, I don't know whether the quotes attributed to him are accurate, because again, it's coming through a newspaper.

Some hon. members: Oh, oh.

Mr. Neal Sher: No offence to anyone.

• 1655

The Chair: No offence taken.

Mr. Neal Sher: It is rather extraordinary for a United States judge to make comments like that to a newspaper. That is number one.

Number two, the notion that the Justice Department and the State Department lied through their teeth is rather extraordinary, because there's no finding of that by any judge who has reviewed it, including the court of appeals panel that reviewed Judge Wiseman.

So these are comments that Judge Merritt has made subsequent to that. He's made a lot comments subsequent to that to the media, which is a bit unusual. I will leave it at that.

Mr. Andrew Telegdi: We all have—and particularly members around this table—our experiences with the press, so certainly, it's a good point.

We have had terrible revelations in the hearings held by Judge Kaufman on the Guy Paul Morin case. I hope you do take some time to review that. It really calls for a fundamental review of the judicial system. No doubt this committee will deal with it. Perhaps we should be taking action against prosecutors who do not do their jobs or police officers who do not do their jobs.

What was the position of the OSI regarding Ivan the Terrible once the Israeli Supreme Court found him not guilty?

Mr. Neal Sher: At that point, the matter was being handled at the highest levels in the U.S. Department of Justice. The Attorney General, Janet Reno, was involved, with her staff, in how to deal with that case.

Attorney General Reno had determined that based on the Israeli Supreme Court findings and all the evidence, Demjanjuk should not be allowed to come back to America—because of the independent evidence. Judge Merritt and his court disagreed, and Demjanjuk came back to the United States, where he is now.

The next determination to be made is the one to which I also alluded, which is whether to renew proceedings against him based on the non-Treblinka evidence. As I said, all indications are that it will in fact be pursued.

Mr. Andrew Telegdi: Thank you very much, Madam Chair.

The Chair: Mr. DeVillers, you had a question.

Mr. Paul DeVillers (Simcoe North, Lib.): Yes, thank you, Madam Chair.

My question deals with the decision that Mr. Ramsay was quoting from in the Demjanjuk case, where the court is in effect saying there was prosecutorial fraud on the court. Has there been any investigation? Under U.S. law, would there be any possibility of a criminal investigation if that were the finding of the court?

Mr. Neal Sher: There wasn't any suggestion of any criminal activity, but I would suggest that the inquiry, which was handled in the first instance by Judge Wiseman, was as thorough and as complete as any investigation imaginable. It was also handled internally by the Office of Professional Responsibility, which said there was no need to discipline any of the lawyers.

Mr. Paul DeVillers: And that's under your law association regulations?

Mr. Neal Sher: That's right.

Mr. Paul DeVillers: That's my second question. Have there been any disciplinary actions taken against any of the prosecutors?

Mr. Neal Sher: Not that I'm aware of.

Mr. Paul DeVillers: Nor against yourself, I assume?

Mr. Neal Sher: No.

Mr. Paul DeVillers: Thank you.

The Chair: Thank you, Mr. DeVillers. Mr. Ramsay.

Mr. Jack Ramsay: Thank you, Madam Chair.

I have just a couple of points. I want to deal with another case, Mr. Sher, but I do have just a couple of points here. In the description you gave of the Demjanjuk case in your opening statement, points you made are refuted, certainly by Mr. Yoram Sheftel, the Tel Aviv lawyer who became the lead defence counsel for Mr. Demjanjuk. In his book, this book I have here, when he describes what happened it certainly refutes your approach to certain points.

Mr. Neal Sher: The fact is—

Mr. Jack Ramsay: If I just might finish—

Mr. Neal Sher: Yes.

Mr. Jack Ramsay: He indicates that there were over 85 documents eventually filed with the Supreme Court in Israel supporting the fact that Demjanjuk was not Ivan the Terrible.

• 1700

Also, it was clear, according to what Mr. Sheftel has told me, not only from my conversation with him but from what he has placed in this book, that it was his efforts initially— followed up on the American program 60 Minutes, which went to that little village outside of Treblinka and found witnesses who clearly depicted that Ivan the Terrible was this fellow Ivan Marchenko.

Mr. John Sims: But that—

Mr. Jack Ramsay: What I want to do, though—and we could argue all day about that and we won't get anywhere—

Mr. John Sims: I think one point—

Mr. Jack Ramsay: Please. I just have a very short time with you. You're going back to the States and we're never going to probably see you again. Of course Mr. Sims will, but probably we won't as a committee—

I want to ask you this: I was in touch today with a senior agent of the Office of Professional Responsibility who confirmed to me that the OSI attorneys, including yourself, are under investigation as a result of complaints of misconduct in the Artukovitch case. They tell me that the investigation began in approximately 1989 and is very close to being concluded. It is a very long investigation. Some of the complaints of misconduct are very serious. He confirmed as well that whether these complaints will be found valid or not, nevertheless these are what they are: the fraudulent use of false affidavits, perjury on the part of yourself.

Are you aware of this investigation? Secondly, I don't want to ask you to comment on it, inasmuch as I was advised that although the investigation is nearing its end, it is still ongoing, but I would invite any comment you think is proper for you to make before this committee.

Mr. Neal Sher: Sure.

First, there are several comments I'd like to make about Mr. Sheftel's book. You talk about 85 documents that eventually found their way into the Israeli Supreme Court. The overwhelming majority were documents that came to light from the former Soviet Union during the pendency of the appeal. There was no allegation of those documents we had at OSI. Mr. Sheftel wrote a book. He is Mr. Demjanjuk's very colourful defence lawyer.

I think it is fair to say, and I know from having spoken with him, that the characterizations and even the factual depictions of how the evidence was gathered certainly the Israeli prosecutors could take serious exception to. We can leave it at that.

As to Artukovitch, Andrija Artukovitch was a man the United States government had been pursuing since either the late 1940s or the early 1950s.

Mr. Jack Ramsay: If I may, Mr. Sher, my question to you was are you aware of the investigation—

Mr. Neal Sher: Of course I am.

Mr. Jack Ramsay: —being conducted by the office of—

Mr. Neal Sher: Yes, I know. I am.

The Chair: You know, you pose a question and it works like this: you're stuck with the answer. He's getting to it. The same for everybody else.

Mr. Neal Sher: You raised the case of Andrija Artukovitch, who was a very notorious individual—he's now dead—and it is important to have some context. But in answer specifically to your question, yes, of course I'm familiar with the allegations that his son has levelled against OSI, and even a specific one, a serious one, he levelled against me personally. I am more than happy to address it.

Andrija Artukovitch was the Minister of Interior and the Minister of Justice of the Nazi puppet state of Croatia. He was known as the Himmler—anyone who knows the history of Nazi Germany knows who Himmler was—of Croatia, the Himmler of the Balkans. Since early on, when he came to America under admitted false pretences, which he acknowledged, the United States was trying to deport him.

We filed deportation proceedings—I don't precisely know when—during the midst of which the Yugoslavian government—this was before the break-up of Yugoslavia—sought his extradition and filed papers. There was an extradition hearing. He in fact was extradited and put on trial, convicted and sentenced to life in prison and then he died. He was rather elderly.

• 1705

He was responsible for signing decrees creating the concentration camps, the infamous one at Jasenovac outside of Zagreb. He signed decrees taking away—and his son acknowledged this in interviews—the property of Jews, which is a clear-cut war crime. He was probably the highest-ranking alleged Nazi criminal ever to come to the United States, or perhaps anywhere in the west, quite frankly.

After he was extradited, his son, who is a very devoted and a very loyal son, filed complaints about the way in which the case was handled during extradition. He made some specific allegations that among volumes and rooms full of documents there were some old statements by people who had given subsequent statements that might have been inconsistent. He claimed there was some impropriety with that. This is one of the issues being investigated by the Office of Professional Responsibility, to which you made reference a moment ago.

The son also made the allegation that I committed perjury, that I lied to a federal judge when I gave testimony in 1985 or 1986—I've forgotten exactly when—to the effect that when I went, with my boss and another head of a companion office that handled extraditions, to Belgrade in 1984 or 1985 to discuss this matter, I had somehow given false testimony or misleading testimony to the judge when I said we were not pressing the Yugoslavs to demand extradition, which we weren't.

Now, he made the allegation. Anybody can make an allegation. For 32¢ American, you put it in an envelope, you make the allegation and then it gets leaked.

I was very concerned about that. I was interviewed and I frankly spoke to the people at the Office of Professional Responsibility. I don't know what their ultimate report is going to be, but they have told me specifically that the allegation against me is totally unsubstantiated. Well, that's what they said, against me directly, because it was such a personal attack. That's what I've been assured of over the last several years.

When they're going to issue a final report, if they're going to issue a final report, frankly, sir, your guess is as good as mine. But the allegation against me—I want this clear, because the son is making these allegations—was determined to be not one iota substantiated.

Mr. Jack Ramsay: Okay. I have one question for Mr. Sims.

Mr. Sims, were you aware of this ongoing investigation surrounding the Artukovitch case and Mr. Sher at the time the department retained him? Were you aware of this ongoing investigation?

Mr. John Sims: No.

Mr. Jack Ramsay: Did you make any inquiries with the Office of Professional Responsibility—that's the unit within the U.S. Justice Department—concerning any ongoing investigations surrounding Mr. Sher?

Mr. John Sims: No.

I knew of the fact that the Demjanjuk case had been referred to that office, and we had been assured that, as Mr. Sher has testified today, that matter had been disposed of. I had not heard of the Artukovitch case until a few days ago and had no reason at the time we were exploring the possibility of retaining Mr. Sher to imagine there was a case pending before the Office of Professional Responsibility. So I certainly made no inquiries and only learned of the case a few days ago.

Mr. Jack Ramsay: Had you known, would you have made those inquiries?

Mr. John Sims: I might, indeed. As I understand from what you've said today, Mr. Ramsay, the case is still pending. My first question, of course, would have been to Mr. Sher, to find out from him what he knew of the case. I've just heard the answer he gave, which seems to indicate to me that the matter's going to be disposed of. Depending on how that inquiry might have gone with Mr. Sher, I might indeed have made that other call. But it didn't come up because I didn't know about it.

Mr. Jack Ramsay: Okay.

How much time do I have?

The Chair: You're over ten minutes right now, and I don't know who else has questions.

Did you have any other questions, Mr. Mancini?

Mr. Peter Mancini: No. I'll pass it on to Mr. MacKay.

The Chair: Okay. Mr. MacKay.

Mr. Peter MacKay: Thank you, Madam Chair.

• 1710

Mr. Sher, since you left OSI you've been in private practice. Can you tell us whether you are contracted out or are currently working for any other political associations, either inside or outside of Canada, that might create an appearance of conflict of interest?

Mr. Neal Sher: No.

Mr. Peter MacKay: Okay.

With respect to your work, your contractual obligations here, can you tell us thus far whether your focus and the Canadian justice department's focus has been on pursuing war criminals only from World War II, or is it broader than that?

Mr. Neal Sher: Just World War II.

Mr. Peter MacKay: Okay.

Can you tell us, without going into specifics or names, how many individuals you might be presently pursuing?

Mr. Neal Sher: Oh, I think Mr. Sims is in a better position to discuss what the unit has on its investigative caseload.

Mr. Peter MacKay: Mr. Sims, can I ask you the same question with regard to the approximate number?

Mr. John Sims: Mr. MacKay, the Minister of Justice and the Minister of Citizenship and Immigration have promised that an annual report will be prepared and tabled each year, beginning this year, and that the first such report will be tabled this spring. It's their commitment that inventories and caseloads and so on will be set out in that first report. That's going to be coming within the next several weeks.

Mr. Peter MacKay: But surely you're in possession of that knowledge. I'm asking you just a general question about the numbers you're pursuing and I guess the scope. Are we talking about all war criminals in this country?

Mr. Sher has indicated his focus has been World War II. Is your unit looking beyond World War II? Are you looking beyond any particular nation or conflict that has resulted in the potential for war crimes?

Mr. John Sims: Certainly Canada's war crimes policy, which is that there shall be no safe haven in this country for people engaged in reprehensible conduct in time of war, applies everywhere. It applies no matter the country in which the incident or the persecution took place and it applies regardless of the time period involved.

In answer to an earlier question, I might have gone on to say that with respect to modern war crimes, for example, the Department of Justice, playing a supporting role to the Department of Citizenship and Immigration, has successfully deported more than 90 individuals who have come in after the Second World War from a wide variety of countries. It's certainly not limited to Europe. They come from Africa, Central America and so on.

So the policy applies everywhere. The office is investigating a case now that is an old case but not a Nazi case, per se. It's too soon to know whether all the evidence will meet the tests that have to be met before we can successfully launch the case, but over the course of this calendar year I believe we're likely to see another case, from an incident that took place decades ago, brought forward for revocation and deportation.

So the scope of the program has tended to focus, of course, on wrongdoing associated with the Nazi regime, but the policy certainly applies much more broadly. If evidence is available in respect of these other matters, these cases will be developed and brought forward.

The numbers will be set out in the report, which is coming within the next several weeks.

Mr. Peter MacKay: I appreciate your answer on the scope. Again, I'm not asking for specific numbers, per se. If I wanted to hear the answer in a timely fashion, I'd ask the minister.

I'm asking you, sir, if you can give us a ballpark number of cases that you're pursuing in this country. That shouldn't be hard. I mean, you're certainly aware of the number.

Mr. John Sims: Fourteen cases have been started. Cases come in various stages of development and preparation. We prepare them at the rate of approximately two cases in preparation and investigation for every case that successfully passes the screens and standards that have to be met in order to put a case forward.

• 1715

Ministers have talked about maintaining the pace that has been set with respect to the World War II program. It's approximately the rate that has been set since 1995, which is approximately four cases a year. So we're looking at twice that number in an advanced state of preparation with approximately four cases coming forward each year. That's in the immediate offing down the pipe. Beyond that, I think it gets speculative as to whether a case moves from an early stage of preparation to an advanced one. Again, the details will be spelled out in the annual report that's coming out in the next several of weeks. I think that gives you a sense, Mr. MacKay.

Mr. Peter MacKay: Thank you, Mr. Sims and Madam Chair.

The Chair: Thank you, Mr. MacKay. Mr. Maloney.

Mr. John Maloney (Erie—Lincoln, Lib.): I just have a short question.

Mr. Sims, we've had Mr. Sher with us for approximately five months. Have you benefited from his counsel? And without perhaps breaching any confidentialities, could you explain how?

Mr. John Sims: The short answer is yes, indeed, we're benefiting. Sometimes it's important to know that the efforts we're making are in the same league and of the same standards as efforts that were made by OSI in some of its successful cases.

For example, I think Mr. Sher in his testimony explained that in many cases the organizations or units with which we're concerned and investigating are similar to ones that he has a great familiarity with. He's therefore familiar with the kinds of evidence that can be adduced and places one might even look. For example, have we considered and exhausted inquiries in a certain archive in a certain area? That kind of advice is very valuable. So the short answer is yes, it's been helpful. Yes, it's been valuable. I expect it to go on being helpful and valuable.

Mr. John Maloney: How long do you think Mr. Sher will be with us?

The Chair: He will be with us for 320.5 hours.

Mr. John Sims: The chair is joking, but there's a factor of arithmetic involved. I look forward to several more months, at least the current year and perhaps beyond, in which we can continue to benefit from Mr. Sher's advice and counsel.

Mr. John Maloney: Thank you, Madam Chair.

The Chair: Thank you. Mr. Mancini.

Mr. Peter Mancini: I have two quick questions, please, Madam Chair. I am cognizant of the time and that you have some questions yourself.

First, Mr. Sims, the issue that was referred to by Mr. Ramsay was the complaints before the Office of Professional Responsibility, if I have that correct. You indicated in your answer to Mr. Ramsay that you were not aware of that at the time of hiring Mr. Sher as a consultant but you became aware of it I think you said a few days ago. Under what circumstances did you become aware of this, and has that information been passed on to the minister?

Mr. John Sims: I first became aware of it when Mr. Sher and I were talking about his appearance today. My colleague here has a thick binder of materials, and somewhere in there, the name was mentioned and he brought it to our attention.

I'd like to emphasize that the context in which Mr. Ramsay asked the question was whether I would have gone off and made such an inquiry. Again, the starting point certainly would have been a question to Mr. Sher: what's the nature of this? We heard his answer today. That's a complete answer. It sounds as though it's well in hand. So I'm not alarmed to have learned only in the last couple of days about this case. It seems to me that it's sitting there and is likely to be disposed of.

Mr. Peter Mancini: The second question—

Mr. John Sims: I'm sorry. No, I have not informed the minister.

Mr. Peter Mancini: Okay. I have one other question. This is something I should perhaps know. In terms of the war crimes unit, are there provisions for the accused to be provided with legal counsel? Is there any funding for the accused to receive legal counsel?

I'm thinking particularly of a letter you've probably seen that was in the Globe and Mail. It was from a young woman who was the daughter of someone who was accused. As a former legal aid lawyer, this is always of some concern to me.

Are there provisions for the accused to be provided with counsel?

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Mr. John Sims: There's no special arrangement that I'm aware of. Certainly the individuals with whom we've been dealing since 1995 have all had counsel, but I don't know of any specific—

The Chair: I can help you. There was a prosecution in Windsor, and the Ontario legal aid plan covered it.

Mr. Peter Mancini: Okay. Thank you. Those are the questions I had, Madam Chair.

The Chair: Okay, go ahead, Mr. Ramsay.

Mr. Jack Ramsay: Just as a note, I got this same quote from Judge Merritt that my colleagues quoted. He said “Today we know that they—the OSI, the prosecution in the case and the State Department—lied through their teeth”. I was interested in your response, that the courts have not found this. It was outside the court.

On page 5 of the court's decision that I have been referring to this afternoon, they point out very clearly that “We are required to accept the master's findings of fact unless clearly erroneous”.

So if Judge Merritt felt that Judge Wiseman was generous in his findings— I spoke with Judge Merritt and asked him very bluntly and plainly whether Judge Wiseman's report was a whitewash. He said it could only be concluded partially, if at all. I think he said “partially”. When I inquired into it further, he pointed out that perhaps it could be interpreted that Judge Wiseman's conclusions were generous.

I would like to ask you, Mr. Sher, how did you know that Peter MacKay was a former crown prosecutor?

Mr. Neal Sher: He told me.

Mr. Jack Ramsay: Oh, he told you.

Mr. Neal Sher: But I'd like to ask something. I want to make sure I heard you right. You spoke with Judge Merritt, who discussed this case with you.

Mr. Jack Ramsay: He discussed the question that I asked him directly.

Mr. Neal Sher: You spoke directly with Judge Merritt?

Mr. Jack Ramsay: Yes, I did.

Mr. Neal Sher: He called Judge Wiseman's decision a possible whitewash?

Mr. Jack Ramsay: No. I asked him if it was a whitewash, and he responded—

Mr. Neal Sher: Did you come away with the conclusion that he thought it was a whitewash?

Mr. Jack Ramsay: No, I have my own conclusions.

Mr. Sher, I'm not here to answer your questions.

Mr. Neal Sher: I understand, but it's just very unusual for a judge to make comments. That's why I was a bit taken aback by this.

Mr. Jack Ramsay: You know this is a very serious matter, and I've been asked by people to look into various aspects of it. I have done that, and I've taken an awful lot of time to do that.

This is the final point I want to make. I want to be absolutely fair with you, Mr. Sher, but I'm concerned when I read in the paper that you make a statement that Mr. Demjanjuk is guilty of mass murder when no court has determined that. I'm very concerned about that. If I might just finish that line of thought, our duty, at least part of it on this committee, is to protect our rule of law and the presumption of innocence. Now, when I hear someone make that kind of a statement, I ask myself: where is there evidence of a respect for the presumption of innocence when you declare someone to be a mass murderer and no court of law has made that determination?

Mr. Neal Sher: I have several points.

I'm not precisely clear as to what quote that was attributed to me you're referring to, but my recitation today, and frankly elsewhere, about the role Mr. Demjanjuk played in the Hashoah, the Holocaust, comes directly from the determinations, findings, and opinion of the Israeli Supreme Court. This was the decision that gave him his freedom.

That was the thrust of my opening remarks about Demjanjuk: what the courts found he was in, what units he was in, and where he had served. I had said that to have been a guard at Sobibor was to have participated in a program that annihilated hundreds of thousands of Jews. I think that is an historical fact that is well confirmed by the Israeli Supreme Court decision. That is what I am alluding to.

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Again, I would reiterate that it is the very decision by the very judges who had an annoying doubt—in their words—about Mr. Demjanjuk. It was very interesting. I would recommend reading it to anyone who is interested in this case. If one looks at the final sentence of the Israeli Supreme Court decision, which says that they had a doubt and were overturning his conviction, it does not refer to Demjanjuk as defendant Demjanjuk or appellant Demjanjuk or Mr. Demjanjuk or Ivan or John Demjanjuk; it refers to him—and this is extraordinary—as “Wachman Demjanjuk”, wachman being the word for the people who worked at these death camps. This is very significant.

Mr. Jack Ramsay: But with the greatest respect, the Supreme Court of Israel would have been one of the toughest courts of any country to have made that decision. They didn't find him guilty of anything, and yet you are drawing from their conclusions the justification for making the statement that Demjanjuk was a mass murderer. If someone wants to make that statement, that's fine, but you are an attorney and for 12 years you ran the OSI. We should be able to expect from you a respect for the presumption of innocence, and, with the greatest respect, I do not see it in that comment.

Mr. Neal Sher: I am repeating nothing more than what the Supreme Court of Israel has said: that to have served as a guard, to have been one of the bachman at Sobibor was to have participated in the annihilation of hundreds of thousands of innocent Jews. That is what the Israeli Supreme Court said. That's what historians have said. They've said that about Demjanjuk, and I am saying nothing more than that. It has nothing to do with presumptions or anything of the sort. He is a free man today, and I accept the final decision of the court, but part and parcel of that final decision are the findings to which I have made reference this afternoon, sir.

Mr. Jack Ramsay: I thank you for that.

I just have one final comment—

The Chair: No, Mr. Ramsay, that's it. You're done.

Mr. Jack Ramsay: Can't I even say goodbye to the man?

The Chair: Yes, you can say goodbye. Say goodbye to the folks, Jack.

Some hon. members: Oh, oh.

Mr. Jack Ramsay: You're being cruel, Madam Chair.

The Chair: I know. I'm mean.

I just want to try to clarify a couple of things.

Mr. Jack Ramsay: It's 5.30, Madam Chair.

The Chair: The bells are not ringing yet. Just be quiet.

I read the decision of the Israeli Supreme Court, and what I understood, and what maybe isn't being made clear, Mr. Sher, was that the decision was an isolated one. The doubts were based upon the question of his identity. What I think some people in the room are forgetting is that if you're charged with assaulting Fred Smith and you're found not to have assaulted Fred Smith but to have assaulted John Doe, you can't be convicted because you weren't charged with assaulting John Doe in the first place.

In this case, the way I read it was that they found that he was a camp guard, that camp guards did those things, and that he had therefore participated in some of the vilest acts in history, but they weren't satisfied that he was the person whose crimes he was being tried for. Is that correct?

Mr. Neal Sher: Yes.

The Chair: Over the course of this, I also just want to be clear on your role within the department. If you're not dealing with substantive law or procedure—actual courtroom stuff—I take it your expertise is in what kinds of evidence can be obtained, how to get it and how to package it for court. Is that it?

Mr. Neal Sher: Yes.

The Chair: Okay. Finally—and this is only for personal interest, and I can talk to you about this later if you have time—in the course of your history, because I see you've done other related things, have you come across information about Raoul Wallenberg at all?

How's that for a segue?

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Mr. Neal Sher: Yes, I have—perhaps a bit more than the average person.

The Chair: Maybe we could talk about that afterward. I have a private member's bill.

Mr. Neal Sher: It would be my pleasure.

The Chair: Thanks.

This meeting is adjourned.