National Post | Jan. 10, 2004 | Adrian Humphreys

Deportation of accused Nazi halted

Cabinet may have violated rights, ministers may have had conflict of interest: judge

Cabinet secrecy and possible conflict of interest by two senior Cabinet ministers could lead to the restitution of Canadian citizenship to an accused Nazi war criminal, according to an Ontario court judge's ruling.

Justice Robert Reilly, of the Ontario Superior Court, said he may restore citizenship to Helmut Oberlander, 79, if he finds a 2001 federal Cabinet vote that stripped the retired developer of his status for lying about his Nazi past also violated the man's constitutional rights. The ruling halted deportation proceedings until the matter is settled in court.

Judge Reilly singled out Anne McLellan, who was the minister of justice at the time and is now Minister of Public Safety, and Elinor Caplan, who was minister of citizenship and immigration but who is not now in Cabinet, as being in potential conflict of interest if they participated in the Governor-in-Council decision.

The ruling this week in Kitchener, Ont., could see government officials faced with the prospect of choosing between breaking Cabinet secrecy or allowing a man they have fought to deport for almost a decade to remain in Canada with full rights as a Canadian.

Government officials are considering their options and will decide next week whether to appeal Judge Reilly's ruling, said Jean-Pierre Morin, spokesman for Citizenship and Immigration.

The ruling adds another twist to Mr. Oberlander's fight to remain in Canada and could delay resolution of the matter for years.

The government contends Mr. Oberlander emigrated from Germany in 1954 and obtained citizenship here in 1960 only through lying or knowingly concealing his membership in the Einsatzkommando 10A, a Nazi squad that executed civilians during the Second World War.

His case was referred to the Federal Court of Canada in 1995.

After legal delays and appeals -- including an issue that went to the Supreme Court of Canada after "clearly ill-advised and inappropriate communications" between a government official and the court, says Judge Reilly in his ruling -- the Federal Court found Mr. Oberlander worked as an interpreter for the squad.

It also found that he "probably" misrepresented his association with the group.

After that ruling, Ms. Caplan, then the citizenship minister, recommended to the Governor-in-Council that Mr. Oberlander's citizenship be revoked, court documents say. The Governor-in-Council, a committee of the federal Cabinet that by convention requires a quorum of four ministers, issued the revocation order on July 12, 2001.

Judge Reilly said Mr. Oberlander's concerns over Cabinet secrecy -- and a lack of answers presented to him in court -- had sufficient merit to warrant a full hearing on the matter.

"What actually went on before the Governor-in-Council remains largely unknown," Judge Reilly writes in his 28-page ruling.

"No information is given with respect to which ministers or how many ministers constituted the tribunal. Indeed, the material ... permits the inference that the Minister of Citizenship and Immigration, and perhaps the Attorney General of Canada as well, sat as members of the Governor-in-Council in deciding whether to revoke Mr. Oberlander's citizenship.

"If these ministers did indeed 'preside' as part of the tribunal, as members of the Governor-in-Council deciding the issue, then they were involved in a clear conflict of interest," he writes, seeming to take issue with ministers directing the prosecution of an individual through the courts and immigration hearings also taking part in non-judicial governmental actions against them.

"I can think of no consequences, apart from a sentence of several years imprisonment in a penitentiary, which would be more significant to a responsible citizen than the loss of that citizenship," Judge Reilly writes.

Mr. Oberlander, represented by Eric Hafemann, contended the deep secrecy violates the principles of fundamental justice guaranteed under the Charter of Rights and Freedoms.

The government, represented by Donald MacIntosh, said the process was sufficiently fair, with Mr. Oberlander allowed to make written submissions.

Mr. MacIntosh argued the principle of Cabinet confidentiality is an integral part of Canada's system of government and takes precedence over any right to personal appearances or making information on its discussions public.

Alexander Swann, spokesman for Ms. McLellan, said he could not comment on the case since it is still before the courts. He would not say whether Ms. McLellan was a part of the Cabinet deliberations. She could not be reached for comment.

Keith Landy, president of the Canadian Jewish Congress, said he is disappointed by the ruling and urged the government to appeal it. "By implication, what this is doing is imposing a judicial-style approach to Cabinet consultations and deliberations -- and it is clearly not a judicial body," he said.

"He is saying the rules of natural justice and judicial-style hearings should apply to the Cabinet and clearly that is not what the executive branch of government is all about. Cabinet confidentiality should be preserved because that is the very nature of Cabinet decision, allowing the government to speak with a single voice on so many important issues.

"It could result in absurd situations," Mr. Landy said.

Ernst Friedel, of the German-Canadian Congress, praised Judge Reilly's finding, saying, "We are pleased. It's important to see that our justice system does work."

Andrew Telegdi, the Liberal Member of Parliament for Kitchener-Waterloo, said the ruling supports his position that the courts, not politicians, should revoke citizenship.

"I'm really glad that the judge has raised concerns. You cannot have people's liberties determined by politicians because they're going to make political decisions."

Diane Ablonczy, citizenship critic for the Canadian Alliance, agreed citizenship decisions are best left to the courts rather than politicians meeting in secret.

� National Post 2004