On April 28, 1995, the Minister of Citizenship and Immigration ordered a reference to the Federal Court pursuant to Section 18 of the Citizenship Act, R.S.C., 1985 c. C-29 to determine whether Helmut Oberlander was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances. After a hearing before the Honourable Mr. Justice MacKay, the learned judge concluded that Helmut Oberlander did, in fact, obtain his Canadian citizenship by false representation or by knowingly concealing material circumstances within the meaning of paragraph 18(1)(b) of the Act.

You have asked me to review the evidence presented at the hearing before Mr. Justice MacKay in order to determine whether the conclusions reached by him in his reasons for judgement in law are supported by the evidence. I have reviewed the evidence presented at the hearing and his judgement and respectfully submit that the evidence does not support the conclusions reached by the learned judge.

I wish to stress that in reaching this conclusion, I have made no attempts to assess the credibility of the witnesses who gave evidence before Mr. Justice MacKay. A trial judge has the advantage, which a reviewing judge does not, of assessing the credibility of the witnesses who appear before him. There are two aspects of that assessment: the first is the reliability or accuracy of the witness's testimony; the second is its honesty. The reliability or accuracy of a witness's testimony involves a consideration of the witness's ability to observe, recall and recount the events in issue. Honesty relates to the willingness of the witness to speak the truth as he or she believes it to be.

Nevertheless, a judge who admits and relies upon evidence which is not admissible in law makes an error in law. A judge who makes an erroneous finding of fact from the evidence presented and relies upon that fact to reach a conclusion errs in law. A judge who draws an unreasonable inference from the testimony of a witness and relies upon it in reaching his decision errs in law. A judge who fails to apply the correct onus of proof or incorrectly applies it errs in law. In my view such errors in law were made in this case by the learned judge.

The judgement outlines the following historical background of Helmut Oberlander. He was born and raised in Halbstadt in the Eastern Ukraine on February 15, 1924. Halbstadt is in the portion of Ukraine that was within the U.S.S.R. in the years between the two world wars and again following German occupation from 1941 to 1944, until Ukraine reached independence in 1991. He and his family were of German Mennonite origin (Volksdeutsch) whose ancestors settled in Halbstadt 250 years earlier. [para 17]

In 1941, at the age of 17, he had completed ten grades in school and was reasonably literate in Russian, Ukrainian and German. His father, a doctor, had died when Oberlander was quite young. At the time, he lived with his mother, who was a nurse, and with his sister and his grandmother. [para 18]

After Germany attacked Russia in June 1941, German troops arrived in Halbstadt by October of that year. Before the Germans arrived, ethnic German families of the town were detained by the Russians in a fenced compound at the railway station awaiting trains to transport them to Siberia. German troops reached Halbstadt before the trains arrived and the German families were freed from the compound and allowed to return to their homes. Soon thereafter, ethnic Germans were summoned to the town hall to be registered. Oberlander, because of his facility with languages, was directed to assist which he did. [para19]

Oberlander testified that a policeman came to his home in about February, 1942 and ordered him to report in two hours to the town hall to serve with German troops as an interpreter. He believed that he had no alternative and would have been subjected to the harshest penalties if he had refused. He reported to the town hall as directed and was taken, the same day, by vehicle with two or three older Germans to Melitopol, a city to the south of Halbstadt. [para 21-23]

Oberlander then began to serve as an interpreter for the Sicherheitsdienst with Ek 10a. Ek 10a refers to the Einsatzkommando 10a, sometimes known as Sonderkommando 10a (Sk 10a) a German police unit of the Sicherheitspolizei (Sipo) and Sicherheitsdienst (SD) which was one of five similar units, special operational task squads, within Einsatzgruppe D, which in turn was one of four special units operating in eastern German occupied territories behind the Wehrmacht's front lines. [para 13, 24] He was not paid for his services.

Oberlander served as an interpreter for SD from the time he was ordered to report until the remnants of that unit were absorbed in a regular army unit in late 1943 or 1944. He then continued, not as an interpreter, but as an infantryman. [para 43-50, 94-96]

The learned judge found that there was no evidence that Oberlander participated in any of the atrocities committed against civilians by Ek 10a. [para 197]

In late 1943 or 1944, Oberlander moved with German forces south to Poland where he was wounded. In April 1944, he became a German citizen with his mother and sister. His army unit was then moved to Yugoslavia and from there to Torgau, a town south of Berlin to assist in the defence of the capital from the advancing Russian army. As the war was ending, he and others moved west to surrender to American forces. He was interned in a British P.O.W. camp from May to July 1945 and then released to be engaged in farm labour. On his release, he was given a certificate of discharge from the German army. He continued to reside at Hannover in West Germany and later at Korntal where he was reunited with his family. There he met his wife and they were married in 1950. [ paras 198-200]

In April 1952, Oberlander and his wife applied to be accepted as immigrants to Canada. [para 200 ] For some time thereafter, they heard nothing from Canadian immigration officials. Eventually, they were notified to attend for a hearing before Canadian officials and did so on August 14, 1953. At issue is whether he was asked by a Visa Control Officer at that hearing about his wartime activities and whether he knowingly gave false information or knowingly concealed material circumstances.

(1) That Oberlander was a member of a special unit of the German Army that was prohibited from obtaining permanent residence and citizenship in Canada at the time of the application for a visa;

(2) That Oberlander knew that he was a member of a prohibited army unit of the German Army;

(3) That when he applied for immigration to Canada, he was asked by a Visa Control Officer ( V.C.O.) about his wartime activities:

(4) That Oberlander deliberately concealed from the V.C.O. his wartime activities with intent to mislead .

The learned judge found that Oberlander was assigned to the Einsatzkommando 10a (Ek 10a), sometimes also known as Sonderkommando 10a, a German police unit of the Sicherheitspolizei (Sipo) and Sicherheitsdienst SD. [para 192] He also found he was not a member of the Sipo or SD although he wore a uniform of the SD from the summer of 1942 until Ek 10 was merged with army units in late 1943. [para 194].

Notwithstanding that finding, he goes on to conclude that he was a member of Ek 10a because he was an auxiliary, serving the SD as an interpreter from the time he was ordered to report until the remnants of that unit were absorbed into a regular unit in late 1943 or 1944. In short, what he is saying is that even though Oberlander was only an interpreter for the SD and not a member, he was still a member of the SD because he served their purposes even though his services were not given willingly. [paras 53, 195]

This finding was made despite Oberlander's evidence that he was not even considered a regular interpreter because of age and the fact that he did not receive pay as did others. Moreover, the judge's conclusion is in stark contrast to the evidence of Dr. Manfred Messerschmidt, who was called by the Minister as an expert historian on the policy of Hitler and the Nazi Regime on the eastern front. Dr. Messerschmidt gave evidence about auxiliary police operations in eastern occupied territories. He testified that Oberlander could not have been a member of the SS and/or the SD because of his age (he turned nineteen on February 15, 1943) and up to and including April of 1944 because he was not a German citizen. He testified that what Oberlander was called or what uniform he wore was irrelevant. The learned judge simply ignored this important evidence.

The judge's reasons also ignore the evidence of John Huebert, who was also a German Mennonite born and raised in the Ukraine and who was a driver and chauffeur with the Red Army from 1939 to 1941 until his capture by the Germans. He said that when he obtained German citizenship in 1944, he was drafted into the SS and was given a blood tatoo indicating he was now an official member of the SS. Oberlander does not have, nor has ever had, a blood tatoo.

With the greatest respect, his conclusion is confusing particularly in view of the uncontradicted evidence of the Minister's expert, Dr. Messerschmidt, and the testimony of John Huebert and Oberlander. One is either a member of an organization or one is not. The fact that one may be forced to do the bidding of an organization does not make them a member. His reasoning is even more confusing at paragraph 54 of his judgement. He concludes that although there were formal requirements for membership in the SD, in the Sicherheitspolizei and in the SS, there was no such evidence of any such requirement for membership in the Ek 10a. What he did not seem to understand is that Ek 10a was the designation for a particular unit of the SD. It was not a separate and distinct unit. His reasoning would mean that the janitor at the police station is not a member of the police force in a formal sense but he is still a member because he provides a service to the police. In my respectful view, this conclusion is simply unreasonable.

It was incumbent on the Minister to prove that if, as alleged by the Minister, he was questioned by a V.C.O. about his membership in a unit prohibited from entry into Canada, he knew that he was a member of the prohibited unit and deliberately concealed that information when questioned about it. Oberlander did not consider himself to be a member of SD nor did the witnesses called on behalf of the Minister consider him to be a member of SD. Therefore, it is difficult to understand how Oberlander, who did not consider himself to be a member of the SD and was not considered to be a member by an expert on the subject, or a witness who was actually a member of the unit, can be said to know he is a member of the unit at a critical time, namely, the date of his interview. It is only the finding by the judge after the fact (and almost 50 years later) that makes Oberlander a member of the unit.

It is necessary to outline briefly the immigration admittance policy and practice that was in place in 1952-54. Following the War, the Canadian Government decided to increase immigration up to pre-war levels. In September 1950, a prohibition was abolished against admission to Canada of German nationals, who, until then, were still formally classified as enemy aliens and inadmissible. [para 89]

By the early 1950's, immigration increased dramatically to a point where the system was overloaded. Exhibit R-22 is a letter to the Commissioner dated 1-3-51 and notes an anticipated 150,000 immigrants for the year and a backlog of 10,000 applicants. Canada's position with Germany was rapidly changing and its attitude towards Russia, a former ally, was changing because of suspected communist infiltration.

Policy in relation to security screening evolved within the Security Panel, an interdepartmental committee of senior public servants, formed in 1946, chaired by the Secretary of the Cabinet, which reported directly to the Prime Minister. [para 92] From 1946, the RCMP, then responsible for security operations within Canada, was assigned that responsibility in relation to applicants for permanent residence in Canada. [para 93] By 1948, there were 11 officers serving in Germany as security officers, known as Visa Control Officers (V.C.O.s).

The general procedure in place in Germany in the 1950's does not seem to be in dispute. A prospective immigrant would apply for immigration by completing an application form. Up to and including April of 1953, the application form required no history as to employment and military service. After April, 1953, the form contained a questionnaire as to such history for a period of 10 years. It is significant to note that the trial judge found that the Oberlanders applied for immigration in April 1952. [para 124]

A paper screening process would then take place to determine if the person was suitable to come to Canada. If suitable, a copy of the application form would be provided to the V.C.O., who would then commence security checks. Inquiries would be submitted by a Green Form to thirteen different agencies, including the Berlin Documentation Centre. Once the Green Form was returned, those cleared for security would be called in for an interview. They would be required to bring their X-rays with them.

The interview generally consisted of three stages. The first was a medical examination and X-ray review; the second (stage B) involved screening by the resident RCMP officer; the last was a civil examination by the Immigration Officer who was the only person with authority to grant a visa. During this period there seemed to be some tension between the RCMP and the Immigration Department over the final decision regarding the issuance of a visa. Exhibit R-12, a letter dated September 29th, 1952 from S/Inspector G.H.Ashley to Inspector W.H. Kelly makes reference to the fact that the Immigration Department has overruled the Stage B Officer and issued visas to proposed immigrants.

Exhibit R-21 dated June 19, 1953 sets out the rejection criteria that was in place at the time. This document indicates that the Security Panel on May 15th, 1952 reached the following decision in regards to persons who would be refused entry into Canada.

"(b) Former members of the Waffen S.S. except:
i) German nationals who joined before the age of 18, when there are reasonable grounds for believing they were conscripted or joined under coercion.
ii) Volksdeutsche formerly residing in German occupied territory, whether they were subsequently naturalized Germans or not, when there are reasonable grounds for believing they were conscripted or joined under coercion.
iii) Volksdeutsche and other nationalities who were resettled and naturalized German before joining, when there are reasonable grounds for believing that naturalization was not of their own choosing, and reasonable grounds for believing they were conscripted or joined under coercion."

This exhibit further states that the Security Officer in Karlsruhe had the enclosed information on hand and the letter must be kept secret.

Clearly, Oberlander fell within the exception in Exhibit R-21 and was not in a category which would have required the Visa Control Officer to exercise his discretion in such manner as to exclude him.

For some reason, Inspector W.H. Kelly decided to challenge the rejection criteria established by the Security Panel and submitted a list of rejection categories different from those in Exhibit R-21. The rejection category would automatically reject former members of the SS, the Sicherheitsdienst, the Abwehr and the Gestapo. In his testimony at the hearing, he said that his differences with Ottawa were resolved when he submitted a statement of reasons for rejection. He said that the rejection criteria were sent to the V.C.O.'s in the field for application.

The learned judge concluded that since there was no record of any objection by Ottawa, the criteria sent to the V.C.O.'s in the field must have been acceptable to the Security Panel [para 100]. In reaching that conclusion, the learned trial judge should have been aware of the contents of Exhibits R-1 and R-3 that were entered at the hearing. He seems to have ignored them. Exhibit R-1 is a memorandum dated February 2nd, 1956 from the Deputy Minister of Citizenship and Immigration to the Minister confirming that the Security Panel in 1951 and again in 1952 agreed that in the case of the Waffen SS, there should be no automatic rejection of those who did not join this body voluntarily. Exhibit R-3 is a memorandum dated February 24th, 1956 to (or from) the Deputy Minister concerning the misunderstanding between the Department and the RCMP with respect to the basis on which former members of the Waffen SS, SD and SA were to be dealt with. It goes on to state that since 1952, automatic exclusion has not been applied in the case of former members who did not join voluntarily. Therefore, the conclusion by the learned judge that the Security Panel did not object is clearly contrary to the evidence that was before him.

Inspector Kelly and two former V.C.O.'s, Donald Cliffe, who was attached to Karlsruhe from 1953 to 1954 and William Poole, had been introduced to the work of a security officer at Karlsruhe for two weeks in June 1954. Over the objections of counsel for Oberlander, they were permitted to testify about their experiences as security officers applying the Kelly criteria, even though their terms and sites of service in 1952-54 at Karlsruhe were not where and when Oberlander's application was considered and his visa to come to Canada was considered. [para 104] They testified as to the screening procedure outlined earlier and said that a security officer always conducted an interview and there was no exception.

The learned judge's reasons for admitting the evidence were as follows:
"Clearly, even if they were not at Karlsruhe at the time here significant, they were experienced in the operating process for considering immigrant applicants in the early 1950's" [para 104]

While such evidence may have been marginally admissible only to show background, it was not admissible to prove that Oberlander was actually interviewed by a V.C.O. and asked about his wartime activities. The evidence had no significant probative value of this critical issue. However, once admitted, the learned judge proceeded to use the evidence as proof of that critical issue, and, to reject the evidence, not only of Oberlander, but of his wife and of Peter Buffe. Mr. Buffe testified that he also applied for immigration in late 1951 or early 1952 and was interviewed in Karlsruhe in June 1952. He recalled that he was interviewed by one gentleman and was never asked any questions about his wartime activities. With the greatest respect to the learned judge, he erred in relying upon the evidence of Kelly, Cliffe and Poole as evidence that Oberlander was asked about his wartime activities by a V.C.O.

In a criminal case, the Crown is required to prove guilt beyond a reasonable doubt. This onus has a long tradition in English and Canadian legal history. Any doubt about the onus of proof was put to rest in the celebrated case of Woolmington v. Director of Public Prosecutions [1935] A.C. 462 where Viscount Sankey L.C., in clear and unequivocal language, stated:
"Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defense of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The issue for determination by the Court in this case was defined by Section 18(1)b of the Citizenship Act. That issue was whether Oberlander "obtained citizenship by false representation or fraud or by knowingly concealing material circumstances." The learned judge acknowledged that the onus of proof rested upon the Minister. He then turned to the onus of proof by the Minister and applied, not the criminal standard of proof, but the civil standard - proof on a balance of probabilities. In doing so, he relied upon the decision of a colleague, McKeown J. in Canada Minister of Citizenship and Immigration v. Bogutin (1998), 144 F.T.R. 1(T.D.) Apparently, that standard of proof has been subsequently applied in Katriuk (1999), 156 F.T.R. 161 (T.D.) and in Kisluk (1999), F.C.J. No. 824 (T.D.)

The proceedings in this case, although not criminal in a strict sense, are similar in nature. Indeed, McKeown J. in Bogutin recognized that he " must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered." Careful scrutiny of the evidence against Oberlander is necessary because the events described by the witnesses called by the Minister happened almost fifty years ago. Yet, the learned judge seems to have imposed the onus of strict proof, not upon the Minister, but upon Oberlander and the witnesses called on his behalf. Their testimony about matters in which they were directly involved was rejected because of frailty of memory while the evidence of the Minister's witnesses was totally accepted even though they were testifying about events of which they had no direct knowledge.

The learned judge recognized that resolution of the issue before the Court was complicated by the lack of most documentary evidence relating to Oberlander's application and admission for permanent residence. Immigration files and records by the Government of Canada, including records of his immigration were destroyed under a general policy for destruction, after a fixed time, of records which were not considered likely to be required for any particular purpose. The only direct evidence of the circumstances concerning Oberlander and his wife's immigration from Germany to Canada in the spring of 1954 is the evidence provided by the Oberlanders themselves except for a record known as Canadian Immigration Card ( Landing Card) Imm. 1000 (Revised 1.4.53). This form was maintained by the Immigration Department as a record of the Oberlander's arrival in Canada as permanent residents at Quebec on May 13, 1954. [para 16]

The learned judge then went on to make the following critical findings of fact:
(1) That Oberlander and his wife applied for a visa to Canada in April 1952 in Karlsruhe and not in the spring of 1953 as contended by counsel for the Minister; [para 125]

(2) That Oberlander and his wife used an O.S.8 form dated "Rev-15-12-50" which did not ask specific questions about his wartime activities and movements; [para 126]

(3) That this form, if completed honestly, would have provided sufficient identification for a security officer to prepare a green form to seek information from other sources that would provide a basis for interviewing Oberlander; [para 126]

(4) That Oberlander and his wife were interviewed by immigration officers in August 1953 in Karlsruhe;

(5) That Oberlander was asked by a V.C.O. about his wartime activities at that interview and deliberately concealed them; [174]

(6) That notwithstanding Mrs. Oberlander's evidence that she was present with her husband during their interview by the immigration officer and her husband was not asked any questions about his military service during the war, her evidence was not credible, not in the sense that she was untruthful, but because her memory was not independent. [para 136] He reached this conclusion because after the Oberlanders were interviewed by the RCMP in January, 1995, she and her husband discussed what took place at Karlsruhe in 1953 to try to remember together that occasion. He recognized that this was normal but the result was that her evidence was not that of an independent witness. With the greatest respect, it is not uncommon for witnesses to an event to meet, review documents and attempt to recall events in the past. This does not automatically result in the rejection of their evidence for lack of independence. However, if what the judge was saying was that her evidence was not independent because she was the wife of Oberlander, the judge was repeating a stereotypical myth about the testimony of wives, which the courts have consistently rejected.

(7) That the evidence of Peter Buffe, who also applied for immigration in late 1951 or early 1952 and who was interviewed in June 1952 and who recalled that he was interviewed by one gentleman who asked him no evidence about his wartime activities should be rejected because it did not reflect the process of interview which he found was established at Karlsruhe for dealing with applicants seeking to come to Canada. [paras 148-149] The judge also rejected his evidence because he could not recall a medical examination on the day he attended for an interview. Although there was evidence that a medical examination was usually conducted on the same day, there was no evidence that it was mandatory.

(8) That Oberlander's evidence was not reliable because of many inconsistencies or implausibilities in his evidence. [para 152] The first implausibility was that he did not know the term Einsatzkommando 10a until he was interviewed and signed a statement for German authorities in Toronto in 1970. [para 153] In that statement, he said that he did not know the name of the unit. The learned judge concluded that since Oberlander was well educated and one of his tasks was to interpret orders and it was highly implausible that he did not know the name of the unit before 1970 as Ek 10a. [para 155] The judge also found it implausible that when interviewed by German authorities in 1970, he did not know the names of the commanders of the unit with which he served. [para 156] With the greatest respect, the learned trial judge was not present at the interview in 1970, does not know how and in what manner Oberlander was questioned and therefore exceeds his role as a judge in assessing the credibility of the responses made by Oberlander when interrogated thirty years ago. Moreover, the judge recognized that memories fade over time and the events in question occurred almost thirty years earlier.

The learned judge commented on the fact that there were inconsistencies in the manner in which Oberlander recalled events of long ago with the testimony he gave at the hearing. Yet he also recognized that events happened long ago and that memories fade. It is not unusual for someone to have forgotten events that occurred long ago and to have his memory refreshed by viewing documents and attempting to reconstruct those from memory. This practice is frequently used by witnesses (usually police officers) and their evidence accepted by the court.

(9) Therefore Oberlander must have been asked about his wartime activities and deliberately concealed them.

As noted earlier, the learned trial judge concluded that Oberlander must have been asked questions about his wartime activities because of a process that he found had been put in place by Inspector Kelly whereby a V.C.O. was required to ask such questions.

The reasoning of the learned trial judge is as follows. The V.C.O.'s were supposed to question all applicants for a visa about their wartime activities. Although none of the three RCMP officers who testified had any personal knowledge about whether V.C.O.'s actually questioned Oberlander or Buffe about their wartime activities, they must have done so because their instructions were to do so. If Oberlander or Buffe, who was found to be an honest witness, say they were not questioned, then they must have been mistaken. Moreover, the testimony of Mrs. Oberlander, who was present when her husband applied for a visa, must be discounted because her testimony is not independent.

I have some difficulty with this method of reasoning. The learned trial judge comes to the conclusion that there was a process of interview established at Karlsruhe by immigration officers in 1952 and 1953 which involved asking an applicant for admission to Canada about his wartime activities. He reaches this conclusion, on the basis of direct evidence from the specific immigration officers who were present at the time, and who recalled interviewing Oberlander and/or Buffe, but because of a process that he found that had been put in place by senior officers, none of whom conducted any interviews. Having found that such a process had been introduced, he then concludes that if any applicant says that he was not asked about his wartime activites, then such applicant must either be deliberately untruthful or mistaken because it conflicts with his conclusion that a process was in place. In short, no applicant who says he was not asked about his wartime activities can ever be believed because the judge found that a process of asking about wartime activities had been implemented and therefore it must have been followed in all cases.

Such reasoning not only conflicts with logic, it fails to understand a fundamental rule of evidence. A fact in issue may be proved by direct evidence or circumstantial evidence. In a case such as this, evidence by the specific V.C.O. officer who allegedly asked Oberlander about his wartime activities is admissible as direct evidence of that fact. An example of circumstantial evidence to prove the fact in issue would occur if the specific V.C.O., who allegedly interviewed Oberlander, had no specific recollection of asking him about his wartime activities but was able to say that it was always his usual practice to ask an applicant about his wartime activities and to give examples of the questions asked. It would be open for the court to infer from the officer's evidence of his usual practice that he probably asked pertinent questions. Such evidence in a Canadian court could even be accepted over the direct testimony of a witness who said that the questions were not asked, although it would be incumbent on the court to give compelling reasons why the evidence of the witness should be rejected.

There was no evidence by the V.C.O. who is alleged to have interviewed Oderlander who said that he asked him about his wartime activities and he gave false or misleading evidence. Similarly, there was no evidence by the V.C.O. who is alleged to have interviewed Oberlander who said that it was his practice to ask everyone about his wartime activities and that if Oberlander had revealed them, he would have been rejected. Most importantly, there was no evidence to even identify a V.C.O. in any documentation on August 14, 1953. There was nothing more than the evidence of three former RCMP officers who had no personal knowledge of any interview that took place between Oberlander and the V.C.O. All they could say was that a V.C.O. was supposed to follow such a procedure. There was no direct or circumstantial evidence that one had, in fact, done so.

On the other hand, there was direct evidence by Oberlander and his wife who was present during his interview that he was not asked about his wartime activities. There was also circumstantial evidence from Peter Buffe who was interviewed around the same time as the Oberlanders that he was not asked about his wartime activities from which an inference could be drawn that Oberlander was not asked about his wartime activities. The evidence of all three was rejected because it conflicted which the evidence of certain RCMP Officers and Immigration Officers who were not even familiar with the facts in issue, but who merely spoke about a process that they had instructed be implemented but could not establish was implemented in every case.

Evidence of the establishment of a process is not evidence that is was implemented unless there is direct evidence by a witness who can attest to the fact that he observed it implemented. Such evidence may be considered circumstantial evidence from which an inference can be drawn that it was probably implemented. The value or weight of that evidence will depend upon the period of time when it was observed to be implemented, the lack of any exceptions to the process and whether it was implemented during the relevant period.

However, none of the evidence relied upon by the judge meets this minimum requirement. The evidence relied upon by the judge would never be relied upon in a Canadian court of law to establish that something happened. It would be considered as no evidence at all. What makes the judgement in this case more perplexing is that the learned judge relied upon this evidence to reject the direct evidence of the Oberlanders and the circumstantial evidence of Peter Buffe that they were not interviewed about their wartime activities. Taken to its logical conclusion, what the learned judge seems to be saying is that no witness who came forward and said that he was never asked about his wartime activities by a V.C.O. officer could ever be believed because he found that there was a process in place for asking every applicant questions about his wartime activities and, therefore, questions must have been asked in every case although there was no evidence to support that it was actually done.

In the Minister of Citizenship and Immigration v. Vitols (F.C.T.D., Sept. 23, 1998, T-310-97), which also involved an allegation that Vitols obtained citizenship by false representation or fraud or by knowingly concealing material circumstances, Mr. Justice McKeown refused to find that Vitols had even been interviewed by an RCMP officer in the absence of direct evidence that an interview took place. With the greatest respect to Mr. Justice MacKay, this is the proper approach to the evidence, which should have been applied in this case. In my respectful view, it would be unfair to treat Oberlander differently than Vitols.

In summary, it is my opinion that the finding of the learned judge is not supported by the evidence and is unreasonable for the following reasons:

(1) The finding that Oberlander was a member of Ek 10a in the face of the evidence was unreasonable;
(2) There was no admissible and reliable evidence that Oberlander was ever questioned about his wartime activities by a Visa Control Officer and concealed them.

All of which is respectfully submitted

Hon. Roger E. Salhany, Q.C.