|14 June 2004|
Sun, June 13, 2004|
'Persecution, not prosecution'
By Peter Worthington — For the Toronto Sun
EVERY "NEW" Canadian breathed easier when the Federal Court of Appeal unanimously reversed the clause in the government's new Citizenship Act, Bill C-8, that allows revocation of citizenship and deportation of naturalized Canadians without the right of an explanation or appeal.
Upset when they failed in past efforts to prove war crimes cases in the criminal court, the feds switched to the civil courts, where "proof beyond a reasonable doubt" was replaced by the less demanding "on the balance of probabilities" that some withheld information when they entered Canada after World War II.
Records of those days have long since been destroyed, hence the "probability" factor — even though some "character" witnesses have testified they entered Canada without being asked about their backgrounds. At the end of WW II, only 18 RCMP officers were assigned to process tens of thousands of displaced persons. They were more concerned about screening communists.
The federal appeal court has restored Canadian citizenship to Helmut Oberlander, 80, of Kitchener, who was on the deportation list because, as a 17-year-old in Ukraine in WW II, he was forced to become a translator for a Nazi death unit.
Wasyl Odynsky, of Toronto, was in the same boat — forced into a Nazi auxiliary unit as a perimeter guard at a concentration camp on pain of death to his parents if he refused or ran away — as he once did, and was caught.
Two others slated for deportation against whom there is no evidence of war crimes are Josef Furman, 83, of Edmonton, and 91-year-old Jacob Fast, of St. Catharines — both Ukrainian, both stripped of citizenship without appeal, both afflicted with Alzheimer's disease and incapable of defending themselves in court.
Liberal MP Andrew Telegdi (Kitchener-Waterloo) was born in Hungary and has fought this draconian legislation on grounds that, without an appeal process, naturalized Canadians are second-class citizens.
The Oberlander and Odynsky investigations were done by Federal Court Justice Andrew MacKay, who stressed there was no evidence these men had been involved in killing or war crimes. But he felt they "probably" weren't candid when they entered Canada.
The appeal court came down heavily on Anne McLellan, deputy PM and minister of public safety, who has been an ardent advocate of the now-discredited law. That won't help her re-election hopes in Edmonton on June 28. Immigration Minister Judy Sgro inherited the bad law but, before he went into politics, Justice Minister Irwin Cotler had long been a Nazi hunter and favoured deportation without appeal.
In Oberlander's case, the appeal court said the ministers and cabinet showed no concern about his "50 years of irreproachable life in Canada," and called revocation "patently unreasonable." The government and its ministers were chastised for regarding Oberlander as a war criminal, when he "served only as an interpreter."
Retired Ontario Superior Court Justice Roger Salhany was hired to review Justice MacKay's original findings — and offered a devastating criticism that anticipated the findings of appeal court Justices Robert Decary, Edgar Sexton and Brian Malone.
"A judge who admits and relies upon evidence which is not admissible in law, makes an error in law," Salhany said. "A judge who draws an unreasonable inference from the testimony of a witness and relies upon it in reaching his decision, errs in law ... In my view, such errors were made in this case by the learned judge."
The government must now request leave to appeal to the Supreme Court of Canada, otherwise the citizenship revocation and deportation cases against aging Ukrainians of WW II must be dropped — which seems inevitable.
Telegdi, who resigned on principle as secretary to former immigration minister Elinor Caplan on this issue, has called the government's campaign "persecution, not prosecution." He has urged Paul Martin (as he tried to persuade Jean Chretien) to abandon the legislation, which he sees an affront to democracy and the Charter of Rights and Freedoms. "For me, my citizenship comes before my party," says Telegdi, whose parents survived Nazi and Soviet camps in Hungary.
As for Oberlander, he has said of his life in Canada: "The first 41 years were wonderful, the last nine years terrible."
The appeal court ruling doesn't intrude on the prosecution of those suspected of war crimes in Bosnia, Croatia and Rwanda, where evidence is available and proof required.
Mr. Oberlander's personal interests|
 The reviewing Judge was clearly wrong in finding that Mr. Oberlander's interests are "peripheral elements" and I fail to see any evidence or indication that they were considered at all. In her Report prepared without consideration of the additional submissions filed by Mr. Oberlander, the Minister states that "Mr. Oberlander raised no humanitarian or compassionate considerations in his submissions" (A.B. vol. 1, p. 41). (I hasten to observe that the words "humanitarian and compassionate considerations" do not appear in the Citizenship Act and are inappropriate as they invite comparison, and confusion, with these words as they are used and have been interpreted in other statutory instruments. I much prefer the words "personal interests" used by the Attorney General in his written and oral submissions.)
 The Minister, of course, is wrong, to the extent that submissions were eventually made in that regard. It is true that the additional submissions were attached to the Report and that one must generally assume that a decision-maker has examined all the evidence and documentation. But where the personal interests considerations are so overwhelmingly favourable to the person concerned as they are here — fifty years of irreproachable life in Canada — one should expect the decision-maker to at least formally recognize the existence of those interests. It is apparent at the face of the record that there was no balancing of the personal interests of Mr. Oberlander and of the public interest. The decision in that regard is patently unreasonable.
The War Crimes Program
 The Minister's Report does refer to the "no safe haven" policy but does not analyse why it is that Mr. Oberlander fits within the policy which, the Report fails to mention, applies only to suspected war criminals. In face of the express finding by Mr. Justice MacKay that no evidence was presented about any personal involvement of Mr. Oberlander in war crimes, one would expect the Governor in Council to at least explain why, in its view, a policy which, by its very — and underlined — words applied only to suspected war criminals, applied to someone who served only as an interpreter in the German army. I note that neither the Minister in her report nor the reviewing Judge even refer to the fact that Mr. Oberlander had asserted that he had not joined the German army voluntarily and that Mr. Justice MacKay has not made a definite finding as to whether Mr. Oberlander had been conscripted or not.
 The Governor in Council could not reasonably come to the conclusion that the policy applied to Mr. Oberlander without first forming an opinion as to whether there was evidence permitting a finding (not made by the Reference Judge) that Mr. Oberlander could be suspected of being complicit in the activities of an organization with a single, brutal purpose. The reviewing Judge took upon himself to decide what the Governor in Council had omitted to examine and decide, that EK 10a was an organization with a single, brutal purpose and that Mr. Oberlander was complicit in the organization's activities. The decision of the Governor in Council in that regard cannot be supplemented by that of the reviewing Judge. The decision of the Governor in Council is not reasonable as it fails to make the appropriate findings and relate them to the person whose citizenship was at issue.
 I would allow the appeal with costs here and below, set aside the decision of the Federal Court, allow the application for judicial review, set aside the decision of the Governor in Council and remit the matter back to the Governor in Council for a new determination. In practice, this Order means that the Minister of Citizenship and Immigration, should she decide to again seek the revocation of the citizenship of Mr. Oberlander, is expected to present the Governor in Council with a new Report which will address the concerns expressed by the Court in these reasons.
"Robert Décary" J.A."I agree.
J. Edgar Sexton, J.A."
B. Malone, J.A."
Helmut Oberlander v Attorney General of Canada, Federal Court of Appeal, 31-May-2004 decisions.fca-caf.gc.ca/fca/2004/2004fca213.shtml