Canada ( Minister of Citizenship and Immigration ) v. Oberlander

Judge Andrew MacKay
on
Helmut Oberlander

Date: 20000228

Docket: T-866-95

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

AND IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

AND IN THE MATTER of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

HELMUT OBERLANDER

Respondent

REASONS FOR DECISION

MacKAY J.

[1] In this reference by the Minister of Citizenship and Immigration, pursuant to s. 18 of the Citizenship Act¹ (the "Act"), I have determined, for the reasons that follow, that the respondent, Helmut Oberlander, was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances.

[2] These Reasons are organized under the following headings, commencing at the paragraphs noted.

para.

3 Introduction

8 The issue before the Court

17 The background: Mr. Oberlander's involvement in World War II

43 The nature of his wartime service

55 Mr. Oberlander in the post-World War II years

67 Earlier investigations of Mr. Oberlander's wartime activities

85 Canadian immigration policy after 1945

90 Security screening of prospective immigrants, 1945-54

120 Application forms for prospective immigrants in the early 1950's

127 The processing of the Oberlanders' application for immigration to Canada at Karlsruhe

150 Mr. Oberlander's evidence

175 The applicable law

189 Summary of findings of fact

211 Conclusion

Introduction

[3] The reference, filed April 28, 1995, was made at the request of Mr. Oberlander, in response to a Notice in respect of Revocation of Citizenship, dated January 27, 1995, addressed to him, advising that the Minister intends to make to the Governor in Council a report within the meaning of sections 10 and 18 of the Act and section 19 of the Canadian Citizenship Act², on the grounds

that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that you failed to divulge to Canadian immigration and citizenship officials your membership in the German Sicherheitspolizei und SD and Einsatzkommando 10A during the Second World War and your participation in the executions of civilians during that period of time.³

[4] That Notice also advised that if the Governor in Council is satisfied, upon the Minister's report, that Mr. Oberlander obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, Mr. Oberlander will cease to be a Canadian citizen on a date to be fixed by order of the Governor in Council. Further, the notice advised the respondent that he could request that the Minister refer the case to this Court and the Minister will not make a report to the Governor in Council unless the Court decides that the respondent has obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. That notice is in accord with s.18 of the Act.

[5] When this reference was initiated by a Notice of Reference filed in the Court on behalf of the applicant Minister, the Court's Rule 920 provided for basic procedures preparatory to, and for, the hearing of this matter.⁴ In accord with that Rule the Minister served and filed on May 11, 1995 a summary of facts and evidence on which the Minister intended to rely in these proceedings, a list of the witnesses, with their addresses, which she proposed to call to testify, and a list of documents, subsequently added to by a supplementary list, upon which she intended to rely.

[6] After the Notice of Reference was filed in May 1995, a number of preliminary issues were raised in this and in certain other cases which were then being considered together for case management purposes in preparation for hearings. That process was suspended when the reference proceedings in this and the other cases were ordered to be stayed⁵, a stay subsequently removed upon appeal to the Court of Appeal⁶, which decision was upheld by the Supreme Court of Canada⁷.

[7] Following reinstatement of proceedings, pursuant to an Order of Mr. Justice Noël dated December 23, 1997 the respondent filed a reply dated January 13, 1998, to the Minister's statement of fact and evidence, and an affidavit of documents. Thereafter, both a representative of the Minister and Mr. Oberlander himself were discovered orally before the hearing of this application commenced in late August 1998.

The issue before the Court

[8] After the hearing was underway, counsel for the respondent asked the Court to direct that the applicant Minister answer certain questions, earlier asked and not answered in the course of discovery, in regard to the case the respondent is expected to meet. I declined to so order, but I took this to be a request for directions defining the issue before the Court in this reference.

[9] Questions might have been raised, by a demand for particulars, or by a motion to compel answers in discovery, in advance of the hearing, for the Reasons for Order of Noël J., dated December 23, 1997, directing arrangements pursuant to Rule 920 in preparation for hearing this reference, stress the nature of the proceedings as civil, not criminal⁸. Yet, while no further steps were taken before the hearing to clarify any uncertainties in the facts alleged by the Minister, the respondent is entitled to know the case he is expected to meet. That case I then defined from the text of the documents constituting the Minister's "pleadings", subject to any submissions on the matter that counsel for either party might then raise. No submissions on the matter were then made.

[10] The purpose of this proceeding is to determine whether or not, as set out in the Notice of Reference, "the Respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by fraud or by knowingly concealing material circumstances". That determination, when made, is one of fact⁹, based on the evidence adduced in this reference. It is not subject to appeal.¹⁰

[11] The applicant does allege, as the basis for her concern, in the Notice of Revocation, that material circumstances were concealed by the respondent's failure "to divulge to Canadian immigration and citizenship officials your membership in the German Sicherheitspolizei und SD and Einsatzkommando 10 A during the Second World War and your participation in the executions of civilians during that period of time". The portion of that allegation concerning the respondent's "participation in the execution of civilians", is not reflected in any of the facts alleged in the Minister's Summary of Facts and Evidence.

[12] That Summary, which must be taken to include all of the facts the applicant hopes to establish by evidence in this case, does not include any reference to personal commission by the respondent of atrocities or war crimes or his personal involvement in "the execution of civilians" or in criminal activities. Nor does it include any reference to his involvement in aiding and abetting others in the commission of criminal activities, in any sense comparable to "aiding and abetting" as those terms are used in s. 21 of the Criminal Code for Canada, R.S.C. 1985, c. C-46. Thus, in my view the Minister does not seek to establish by evidence that Mr. Oberlander was personally involved in the commission of atrocities or war crimes or criminal activities, or in aiding and abetting, in any criminal sense, others engaged in criminal activities. I affirm for the record that no evidence was presented to the Court about any personal involvement of the respondent in criminal activities or war crimes.

[13] The Minister's Summary of Facts and Evidence does include reference to allegations that the respondent joined the Sicherheitspolizei and SD and Einsatzkommando 10A ("Ek 10a")¹¹ in or about October 1941, that he served with it in German-occupied eastern territories from 1941 to 1943 or 1944, and during that time the unit he served with was involved in criminal killing of civilians. This is the basis of the Minister's concern about false representation, or fraud or failing to disclose material circumstances, that is, Mr. Oberlander's association with a certain German police unit that participated in criminal killing of civilians in World War II. That association is specified as "membership", in the Notice of Revocation and as repeated in the Minister's Summary of Facts and Evidence, in S.S. organizations and in a unit, Ek 10a, known to have been engaged in criminal killing activity.

[14] Ultimately, this association of Mr. Oberlander must be established and it must also be established that this was falsely misrepresented or knowingly concealed by the respondent when he was admitted to Canada as a landed immigrant. If those are established it is urged for the Minister that under s-s. 10(2) of the Act Mr. Oberlander would be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances.

[15] In written submissions after the close of evidence, on behalf of the Minister it is specified that the ultimate issue is whether Mr. Oberlander obtained citizenship by false representation or fraud or knowingly concealing material circumstances. That accords with the Court's direction during the hearings.

[16] Resolution of that issue before the Court is complicated, in review of the circumstances under which Mr. Oberlander came to Canada, by the lack of most documentary evidence relating to his application and his admission for permanent residence. That lack arises from the destruction of immigration files and records by or on behalf of the Government of Canada, including records relating to Mr. Oberlander's immigration. That destruction was effected under general government policies for destruction, after a fixed time, of records which are not considered likely to be required for any particular purpose.¹² In this case the only direct evidence of the circumstances concerning the immigration from Germany to Canada in the spring of 1954 by Mr. Oberlander and his wife, as immigrants to Canada, 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)¹³. That last form was maintained by the Immigration Department as a record of the Oberlanders' arrival and landing in Canada as permanent residents, on May 13, 1954 at Quebec, as signified by the Canada Immigration stamp entered on the form.

The background: Mr. Oberlander's involvement in World War II

[17] Mr. Oberlander was born in 1924 and raised in the town of Halbstadt, as it was known before the Second World War to the local community of Volksdeutsche, that is persons of German descent, in southeastern Ukraine. His forebears had lived there for more than 250 years, having originally come to settle there as members of a German Mennonite community. The town lies north of Melitopol in eastern Ukraine, and it was also then known, as it is now, as Molochansk or Molo…ansk,¹⁴ the name used then and since by its substantial Russian and Ukrainian populations. It is apparently also referred to as Halberstadt, a name used after German occupation in 1941, as appears from some of the documents produced in evidence. The town 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 the German occupation from 1941 to 1944, until the independence of Ukraine in 1991. Through the 1930's the enforced Sovietization of Ukraine meant great hardship for many people, including, it is said, the families of Mr. and Mrs. Oberlander. Many people suffered further in the period under German occupation and again after the subsequent return of Soviet forces.

[18] The respondent's father, a doctor, had died when Mr. Oberlander was quite young. Thereafter he lived with his mother, who was a nurse, and with his sister and his grandmother, until he was 17 years of age. By the summer of 1941 Mr. Oberlander had completed ten grades in school, initial years in the German language and then after 1937, in Russian, the language required in Ukrainian schools by Soviet decree. In the result, after ten years of school, Mr. Oberlander was reasonably literate in both German and Russian, as well as Ukrainian.

[19] After Germany attacked Russia in June, 1941 German troops arrived in Halbstadt by October of that year. Mr. Oberlander's testimony is that before the arrival of the German army in Halbstadt the adult men of German origin had been taken by the Russians. He believed they had been taken to Siberia. Shortly before German troops arrived, ethnic German families of the town, including Mr. Oberlander and his family, were detained by the Russians in a fenced compound at the railway station, awaiting trains to take them to the east. Before trains arrived to transport them, German army troops reached Halbstadt and the German families were freed from the compound and permitted to return to their homes. Soon thereafter ethnic Germans were summoned to the town hall to be registered and in that process Mr. Oberlander, because of his facility with languages, was directed to assist. This he did. He says that he was also involved for some time, until about the end of the year, in reconstruction and cleaning up damage near the city hall in the town.

[20] The evidence is not consistent about circumstances and the time when Mr. Oberlander was taken by German authorities to serve as an interpreter with German forces. There was no conscription of non-Germans to serve with the German army¹⁵. It is suggested that Mr. Oberlander went voluntarily. His own evidence is that when a local authority, whom he believes was a policeman, came to his house, he says in about February 1942, to order that he report in two hours to the town hall to serve with the German troops as an interpreter, his mother was very upset. She was told that the war would soon be over, that his service was required and was due because the Germans had freed him and the family. Mr. Oberlander believed that he had no alternative and would have been subject to the harshest penalties had he not gone as ordered. He does not agree that he went voluntarily in the sense of a decision made without compulsion. He reported to the town hall as directed and the same day he was taken by vehicle, with two or three other, older ethnic Germans, to Melitopol.

[21] The Minister's evidence, based in part on the evidence of John Huebert, is that Mr. Oberlander commenced serving as an interpreter in October 1941. Mr. Huebert, who testified at the hearings, was also from Ukraine, where he was born in 1917, in the village of Ladekopp, a few kilometres from Halbstadt. His forebears were Mennonites from Holland and he grew up speaking Mennonite and Russian. His evidence is that he too was taken by the Germans, in his case to be a chauffeur of vehicles, in October 1941, and thereafter he served, driving a truck, with Ek 10a, the same unit with which Mr. Oberlander served as an interpreter. Huebert had previously served as a truck driver with the Russian army, which he left when his vehicle broke down as the German army approached. He had then returned to his home at Ladekopp and only a few days later, probably in early October 1942, he was taken to be a driver for the Germans with Ek 10a.

[22] Mr. Huebert recalls that the day he was taken by the Germans from his village to Halbstadt, Mr. Oberlander was already there, at Halbstadt, with the Germans, and that they travelled from Halbstadt towards Mariupol, which lies east of Melitopol. Huebert also recalls that in early May 1942 he and Oberlander had together driven, by one motorcycle with a side car, some 400 km from Taganrog, where they were then stationed, to their respective homes, on leave for 14 days, and thereafter they returned together, by motorcycle to Mariupol and then by truck to Taganrog. Mr. Oberlander does not recall that journey.

[23] The respondent testified that he was ordered to serve as an interpreter and he left home in February 1942, a date he traces from family recollections. His family members recalled that he left home to go as an interpreter about one month before his mother moved away from Halbstadt in March 1942. In these proceedings he is clear in his recollection that he did not, after leaving, ever return to Halbstadt. It is unlikely that he travelled to Halbstadt with Mr. Huebert at least at the time Huebert suggests, in May 1942, since this would have been after Mr. Oberlander's mother and family had left the town.

[24] In my opinion, these differences about the timing and the circumstances of his commencing service as an interpreter are not significant for the ultimate issue. The evidence is clear that he did serve as an interpreter for the Sicherheitsdienst (SD) with Ek 10a. He admits that service.

[25] Hearings in this matter included testimony from another, in addition to Messrs. Oberlander and Huebert, who had been taken from the local population to serve with Ek 10a. John Huebert, from the same area of Ukraine as the respondent, as we have seen, claims to have served from October 1941 with that unit. Nikolai Siderenko, a Ukrainian, originally from Taganrog and in recent years living in Donetz, had been serving with the Russian army at Novorossiysk until that city fell to the Germans in the fall of 1942. Soon after his capture and detention as a prisoner of war, he was ordered by his German captors, with other prisoners, to serve as an auxiliary policeman with Ek 10a. At that time at least, he did not speak German but he and other Ukrainians served as auxiliary police, guarding the premises and property of the unit and serving as local police to protect the unit or portions of it, wherever they were sent. Both Messrs. Huebert and Siderenko remember Mr. Oberlander serving as an interpreter with Ek 10a, including certain matters or incidents which Mr. Oberlander does not recall. Further, he did not recall, at the hearing of this matter, either Mr. Huebert or Mr. Siderenko as former fellow auxiliaries with Ek 10a. In my opinion both Messrs. Huebert and Siderenko were credible witnesses, though Mr. Huebert's testimony, because of language difficulties for him, was not consistently reliable.

[26] When they first joined the unit all three of them, Oberlander, Huebert and Siderenko, were unaware of the designation of the unit or of its function in exterminating those perceived by the Germans as enemies. Huebert says he learned the name of the unit as Sonderkommando 10a in Taganrog. Siderenko claims not to have known its designation as Ek 10a perhaps until after he was captured and then interrogated by the Russian KGB after the war. Mr. Oberlander claims not to have known the unit's designation until he was interviewed by a German consular officer in 1970 in Toronto, in relation to a trial then underway in Munich of Dr. Christmann, one of the wartime commanders of Ek 10a. I find Mr. Oberlander's ignorance of the name of the unit with which he served for one and a half years or more, to be implausible, as I explain in assessing his evidence.

[27] Mr. Huebert, as a truck driver, came to know of the killing activities of the unit, indeed he witnessed some executions, by shooting, first at Taganrog. Later at Krasnodar he saw people forced into a gassing van operated by Ek 10a as an execution chamber. He acknowledged he had driven German officers to pick up local civilians who were interrogated and he believed were later executed. Mr. Siderenko, soon after his service as an auxiliary began, observed Jewish persons summoned to meet and then marched or trucked away, and from reports of others accompanying them he learned that the Jews had been killed. He also witnessed the massacre of civilians, by German troops serving in his unit, in a Belarus village in 1943, in the course of anti-partisan operations. Mr. Oberlander was not seen by Messrs. Huebert or Siderenko at any assemblies of victims or any of the killing activities they witnessed.¹⁶ He claims not to have witnessed any of these killing activities and not to have been involved in any, but he could not have been unaware of this function of the unit. Indeed, he acknowledged that at some time while serving with Ek 10a he was aware of its execution of civilians.¹⁷

[28] Evidence of the record of Ek 10a was provided to the Court by Dr. Manfred Messerschmidt, an internationally recognized military historian, accepted as an expert witness, with expertise in respect of the German attack on the Soviet Union and the conduct of police units behind the front lines in the occupied territories. Before his testimony I heard argument about the admissibility of his evidence and of the historic wartime documents upon which it was based. The Court ruled that documents certified by historians or archivists in accord with the Canada Evidence Act¹⁸ as documents prepared in the ordinary course of the activities of German army and other German authorities during World War II, were admissible. Further, as a trained and recognized historian, Dr. Messerschmidt's opinion evidence based on these documents and his own research, was admissible. I excluded as evidence portions of his written report and any testimony, based upon archival reports of investigations or prosecutions of others, in the U.S.S.R. or in Germany. There was no evidence of the nature or circumstances of those prosecutions or investigations,¹⁹ thus there is no basis for assessing reliability of any such reports. Their admission, in circumstances unknown to the respondent who had no opportunity to question witnesses who were referred to in reports, clearly would be prejudicial, in my opinion.

[29] Dr. Messerschmidt's evidence included reference to the background, organization and functions of four Einsatzgruppen ("EG") designated A, B, C and D, operating under direction of Reinhard Heydrich, acting under Reichführer-SS Heinrich Himmler, in supervision of special police forces, with responsibility for ideological warfare and police action in occupied territories in the east, behind the army's front lines. One of their principal tasks was the elimination, by executions, of perceived enemies of the German Reich, in particular, communist leaders, Jews, Gypsies and others in all the eastern territories occupied by the Germans.

[30] The report of Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV, October 1946 - April 1949, sets out the Opinion and Judgment of the Tribunal in regard to some 22 surviving leaders of Einsatzgruppen operations in the east, including SS General Otto Ohlendorf, commanding EG D. The opinion describes in graphic terms the enormity of the crimes committed by the Einsatzgruppen A, B, C and D. It also notes that among other offences charged and established in the case of Ohlendorf and others was membership in the SS, an organization which, with the SD and others, was declared to be criminal by the International Military Tribunal in 1946 and by Article II of Control Council Law No. 10.

[31] The Einsatzgruppen, and their operational sub-units, known as Einsatzkommandos or Sonderkommandos, were initially formed from members of various police forces from within Germany, including the SD or Sicherheitsdienst which was the internal security service of the SS, the Sipo or Sicherheitspolizei or Security Police of the SS, the Waffen SS or fighting arm of the SS, the Kriminalpolizei or Criminal Police, and some Gestapo. German police manpower was bolstered in the occupied territories, by Volksdeutsche or others, who were ordered or enlisted to serve as auxiliaries, as Messrs. Oberlander, Huebert and Siderenko were, working with the Einsatzkommando units.²⁰ Ek 10a was one of five commando or operational units within Einsatzgruppe D ("EG D"), the latter being the smallest of the Einsatzgruppen with somewhat more than 500 men including auxiliary personnel²¹.

[32] Reports from EG D which operated in the south, in the Ukraine and elsewhere, show that by mid-December 1941 more than 55,000 people had been killed²² and by April 1942 more than 91,000²³. Ek 10a, one of the units within EG D, by its own reports to police headquarters in Germany, had carried out substantial execution activities, in Melitopol, in Berdjansk, Mariupol and Taganrog, and then in the summer and fall of 1942 at Rostov and Krasnodar, and in the area of Novorossiysk,²⁴ among other places. By the time there was a change of commanders of Ek 10a in August 1942, when Dr. Christmann succeeded Seetzen, the unit's first commander, its operational area, extending east to Rostov, but not then south to Krasnodar or Novorossiysk, was said to be "free of Jews"²⁵. Only later did Ek 10a move south from Rostov to Krasnodar, where large scale executions were committed, and then on to Novorossiysk. While the unit was at Krasnodar it is reported by a post-war German judicial inquiry that some 7,000 civilians were executed.²⁶

[33] Mr. Oberlander's evidence is that he served with different units, of different sizes, as he was moved from place to place. That is not inconsistent with the operational pattern of Ek 10a which apparently moved in various sub-units from place to place as its operations carried on. From his home at Halbstadt Mr. Oberlander was taken to Melitopol, and after two or three weeks there he moved on to Mariupol and thence to Taganrog, where the unit, Ek 10a, was based from late October to the spring of 1942. He says that when he arrived there Taganrog was close to the front and the city was under continuing air attack as it was a major transit area for the exchange of German forces, with those rested for a few days relieving those fighting at the front.

[34] After the Germans captured Rostov, east of the border of Ukraine, on the Don River at the east end of the Sea of Azov, Mr. Oberlander moved there with some element of Ek 10a. His evidence is that he remained there for three or four weeks, spent almost entirely as a solitary guard armed with a rifle, to protect against pilfering, a cargo of grain and sunflower oil on a barge in the river. Thereafter, from Rostov he moved to Krasnodar where the whole unit was stationed for one or two months. From there he was sent with a small advance party though not the first, he says, to Novorossiysk where he remained for some six months. There he was engaged in his first major action against partisan groups, action for which he was armed with a submachine gun. His name appears in a unit order, of Einsatzkommando 10a, as one of the interpreters designated to serve with an army unit acting against partisans. He was later awarded a medal, the War Service Cross Second Class, which by his testimony he had little interest in, although he says it was for rescuing two wounded German soldiers after Russian forces landed near Novorossiysk and attacked German forces.

[35] By early 1943 the Russian counter offensive was underway. Mr. Oberlander and the group he was with from Ek 10a moved, ahead of advancing Russian forces, to the Crimea where, at Kerch they were again involved for about three months in fighting against armed partisan forces. From there they were moved by truck and train, with others, to the area of Mozyr, in Belarus. Of passing interest is Siderenko's testimony that the Ek 10a group he was with in the Crimea was not actively engaged in anti-partisan or other police action activities for some three months before they were moved to Belarus.

[36] Einsatzgruppe D apparently did not remain as a separate police unit but elements of it, including Ek 10a, were sent to Belarus where, as part of a group that came to be known as combat group Bierkamp they were engaged in anti-partisan operations in the latter part of 1943. Mr. Oberlander's evidence is that before arrival of his unit at Mozyr he was flown to a German anti-partisan headquarters base in marshy country, which was probably the area known as the Pripjet marshes, and there he spent his full time, for some three or four months, listening to and monitoring Russian radio signals to and from and among major partisan units, and reporting on this frequently to his superiors at the base. He says he did not participate in other ways in actions against partisans in Belarus. The men of Ek 10a operated there in conjunction with the 11^th SS Cavalry division, a unit of the Waffen SS, in these operations²⁷, particularly after May 1943 when the combat group Bierkamp was disbanded.

[37] From Belarus, Mr. Oberlander moved later in 1943 or early in 1944 with the remnants of Ek 10a, now apparently integrated with others, either as a part of Ek 6 or, as Mr. Oberlander claimed at the hearing, in a regular army unit, to the former Poland in the area near Lemberg, now Lviv in western Ukraine. He claims the unit he was with in Poland was of the army, that it was not an SS unit. There he was engaged in protection of military installations from partisans and in actions against them. He was wounded while there and spent a few weeks in hospital in early 1944.

[38] At the beginning of April, 1944 he went on leave. His mother and his sister were both then living at Gnessen. He joined them at Litzmannstadt where his mother's application for herself and her family to become naturalized German citizens was processed. They succeeded in meeting the standards for citizenship and thereafter became German citizens. Mr. Oberlander's explanation is that his mother was concerned to qualify for any German pension or other benefits which might become available if Mr. Oberlander were killed after he was made a naturalized citizen, as was then facilitated for Volksdeutsche from the occupied territories seeking resettlement, particularly those who had served with the German forces, and their families. Mr. Oberlander's name was included in a letter to the SS and Police Leader in the district of Lublin, with the names of others having proven themselves, whom it was urged should be granted German citizenship, in accord with a decree by the Führer for acquisition of citizenship by Volksdeutsche serving with German forces. At all events, the family was processed together, on the same day, April 6, 1944, at Litzmannstadt.

[39] Documents from that occasion were in evidence, from German archives, and they were described in the testimony of Dr. David Marwell, an expert witness on the resettlement and naturalization process for ethnic Germans from eastern occupied territories. He is an historian, formerly Chief of Investigative Research of the Office of Special Investigations in the United States Department of Justice, former Director of the Berlin Document Centre, and now Associate Director of Museum programs at the U.S. Holocaust Memorial Museum.

[40] I return to these documents in discussion of evidence before the Court about Mr. Oberlander's status or association with Ek 10a. First, I complete his story of his involvement from April 1944 until the end of the war.

[41] He returned to his unit, no longer Ek 10a, in Poland after he had qualified for German citizenship. From then on or even from an earlier date Mr. Oberlander recounts that his service was as a regular soldier in an army unit. As the Russian troops continued to advance, his unit was moved from Poland to Yugoslavia where they guarded vital properties against partisan attacks and occasionally went on "search and destroy" operations against the partisan forces operating under Tito. From Yugoslavia he and others retreated by way of Vienna to Germany. He was not able to recall, in these proceedings, the route, or the means of travel used en route to Germany except that he believes they went via Vienna.

[42] He ended up at Torgau, south of Berlin, with a mixed group, known to him only as the Holz Battalion, apparently named after its commander. Since then he has had a document from the Holz Battalion, provided to him shortly before its surrender in 1945, a certificate typed on a card-size paper, which identifies him, by name and date of birth, with his place of birth "Giesen", as a non-commissioned officer, and as a member of the combat group "Holz", adding that he has been on duty since April 23, 1945. Just before the German surrender, he says he was put in charge of some wounded and some older men and they moved westward to surrender to American forces. Soon after their surrender they learned that the area they were in was to become subject to Soviet occupation and with a large group of other prisoners of war, Mr. Oberlander walked further west, ending up near Hannover, in the zone thereafter occupied by British forces, where he and others were held in a major P.O.W. camp. Thus ended Mr. Oberlander's war service.

The nature of his wartime service

[43] Two aspects of that service require further review, his work with Ek 10a and other German forces, and the status or association he had with those forces.

[44] Mr. Oberlander describes his duties variously, with no involvement in any of the more brutal or criminal activities of Ek 10a. When first taken from his home to Melitopol he was told to clean the boots and see to repair and cleaning of the Germans' uniforms, and cleaning their premises, tasks he continued to carry on from time to time. He worked with the kitchen staff, usually non-German auxiliaries, and he went on forays for food, other necessaries and fuel, to surrounding farms and communities, for the element of the unit with which he was serving. He worked with the Russian speaking auxiliary police who served with the unit. On occasion he registered ethnic Germans. He dealt with auxiliary drivers with the unit's motor pool, dealing with supplies, spare parts and gasoline. He interpreted for his German officers with local authorities. While at Taganrog he searched for and recorded locations of the graves of German soldiers for proper reburial in military cemeteries. While in Taganrog he also organized local entertainment for German troops on their rotation leave from the front lines, and he helped to oversee certain construction projects for the unit's accommodation. His radio monitoring activity in Belarus apparently reflected earlier experience he had with the unit first at Taganrog and later after it had become engaged in significant anti-partisan action. While at Novorossiysk he worked with German medical teams seeking to promote public health measures.

[45] Initially he had no weapon, except for a rifle on the occasion of his guarding of the barge cargo at Rostov. Later he had a pistol, and a submachine gun when he was engaged in anti-partisan activities. Those activities became more a part of his duties at Novorossiysk, at Kerch in the Crimea, and after his return to Poland from Belarus. From then on he acknowledges he had a rifle, and his duties he says then were those of a regular soldier engaged for the most part in guarding against partisan attacks and in searching out partisans.

[46] He admits to his involvement as an interpreter in occasional interrogation sessions when German officers questioned those detained as suspected of anti-German sentiments or activities.²⁸ Mr. Huebert, who witnessed executions by shooting and the parading of persons to the mobile killing vehicle for gassing victims used by Ek 10a, had no recollection of Oberlander or any other auxiliary interpreter being involved directly in those activities. Mr. Siderenko, who witnessed the assembly of Jews at Novorossiysk and their being marched or trucked off, ostensibly to be "re-settled" but really to be executed, as he was later advised, had not observed any auxiliary interpreter on those occasions, or later at the slaughter he had witnessed in the Belarus village. The absence of auxiliary interpreters on these occasions may be explained by the inclusion in the unit of Russian speaking Germans who came from Germany, regular police force members who also served as interpreters.

[47] Mr. Siderenko testified he had observed Mr. Oberlander serving as an interpreter on two occasions. Once, when Siderenko and a colleague were permitted to intervene at an interrogation of a woman to represent that she was not a Jew, their representations were made through Oberlander as interpreter, and these succeeded in release of the woman. On the other occasion Mr. Siderenko was himself interrogated in relation to an attempted escape by a captured Russian general. Siderenko's explanation, delivered he says through Oberlander, was accepted and he was not punished. These incidents Mr. Oberlander did not recall when he testified in this proceeding, and as earlier noted he did not recall Mr. Siderenko as an auxiliary member of Ek 10a.

[48] I accept Mr. Oberlander's description of his work within Ek 10a without determining, since there is no need to do so, whether it is a full and fair description of his activities from the time he was taken as an interpreter at Halbstadt until he left Belarus for Poland, in late 1943 or early 1944.

[49] His status with Ek 10a, in my opinion, is clear. He was not a member of the Sicherheitspolizei or the SD in a formal sense. Both were organizations of the SS, i.e., the Shutzstaffel, the special organization begun within the National Socialist, or Nazi, Party to promote its political and social goals. It will be recalled that the Sicherheitspolizei was a general security police force of SS personnel, and the SD was a special security service, initially responsible for internal security of the SS itself. Both assumed wider roles in the police actions in the bitter ideological warfare waged by the Germans in the eastern occupied territories, and both the SS and the SD were declared to be criminal organizations under Control Council Law No. 10, Art. II, para. I(d) and by the International Military Tribunal.²⁹

[50] Mr. Oberlander wore a uniform or parts of a uniform of the SD, with SD symbols. He was referred to in the Medal Bestowal List of Army High Command 17 as "SS-Mann",³⁰ a term by which he was also described in one of the documents from the naturalization process at Litzmannstadt in April 1944.³¹ Those documents³² also list that among documents submitted for his naturalization was an "assignment book, No. 012418, issued 25.3.44 by Sipo and SD, FP No. 35979"; they note concerning Mr. Oberlander "Relocated. Field Post No. 35979 on 3.10.41 from Molotschansk", that his work history is "Sicherheitspolizei and SD - SS-mann and interpreter from 1941 to present".

[51] Those documentary descriptions might lead one to conclude, as Dr. Marwell suggested, that Mr. Oberlander was a member of the Sicherheitspolizei and SD were it not for the very clear evidence of Dr. Messerschmidt, the Minister's expert witness on auxiliary police operations in eastern occupied territories.

[52] By Dr. Messerschmidt's testimony it was not possible for Mr. Oberlander to be a member of the SS, or of the Sicherheitspolizei, or of the SD. Only citizens of Germany, not Volksdeutsche as Mr. Oberlander was until 1944, could be members of the SS or its internal organizations.³³ Even though they wore SD uniforms and were referred to as SS-men and were subject to SS police jurisdiction and control, indigenous interpreters drawn from ethnic German communities in the Ukraine were not members of the Sicherheitspolizei and SD. The term SS-Mann was apparently used generally as a description to include one who was a member of the SS in a formal sense or one who was not a member but an auxiliary, with the equivalent rank of private, serving with an SS unit.³⁴

[53] While he was not a member of the SS, or of its special security forces, the Sicherheitspolizei and SD, Mr. Oberlander was an interpreter, an auxiliary, serving the SD or others within a police unit, that is, Ek 10a, that was under the control of the SS. He says that he was not paid, but he was supplied a uniform by the summer of 1942, he lived, ate and travelled with the unit serving it and its members, even if that were by routine chores and as an interpreter. Whether he later served with other Einsatzkommando units, as was suggested from reference to his field post number appearing in the 1944 naturalization documents from Litzmannstadt, need not be determined. The evidence and his description of his role as an interpreter does not include any activity directly involved with Ek 10a's worst and most heinous operations. In his testimony Mr. Oberlander denied that he was ever a member of the SS, that he ever participated in execution of civilians or anyone, or that he assisted in such activity or that he was even present at executions or deportations. Yet Mr. Oberlander, by his testimony, acknowledges that he served as an interpreter with the SD³⁵, that the police unit was referred to as SD, and that after serving for some time he did know of its executions of civilians and others. He knew also its "re-settlement" practice for Jews, though he professes not to have understood the meaning of the latter as executions, until later³⁶, at Krasnodar. In all the circumstances, it is not plausible that he remained ignorant of the executions of Jews and others, as a major activity of the men with whom he served, until he was in Krasnodar.

[54] In my opinion, the circumstances preclude any conclusion other than that Mr. Oberlander was a member of Ek 10a in any reasonable interpretation of the word "member". While there were formal requirements for membership in the SS, in the Sicherheitspolizei, and in the SD, there is no evidence of any such requirement for membership in Ek 10a, whether in its police elements or its auxiliaries, except selection to serve its purposes. Mr. Oberlander was selected, he served as an auxiliary with the unit and he lived and travelled with men of the unit. Its purposes he served, even if that service were not willingly given. Ek 10a, a police formation, was a unit under direction of the SS, from Berlin. Throughout his testimony he referred to the group he served with as "the unit". I find that while serving he belonged with the Ek 10a unit as a member. That is among allegations of the Minister in the Notice of Revocation and in the Summary of Facts and Evidence presented by the Minister in May 1995, which outlined the case upon which the notice was based.

Mr. Oberlander in the post World War II years

[55] From May 1945 Mr. Oberlander lived in a large British camp for German P.O.W.'s south of Hannover, for some two months. Food was in short supply and when opportunity arose for men prepared to work on farms to be released from the camp, he applied. Like other applicants he was examined by a doctor who certified him fit for farm work and who, he testified, examined him to ensure he did not have the "blood tattoo" worn by those who were members of the SS. Having no tattoo and having been found fit, he was examined by German officers, working with British officers, and a form for his discharge from the camp and from the "HEER", i.e. the German army, was then typed up. That form was delivered with him and others to the mayor of a village near Hannover where they were housed in the local school and worked on neighbouring farms until the school was required in the fall and their labour was no longer required. He was then permitted to leave, with the Certificate of Discharge earlier completed on July 26, 1945, then delivered to him.

[56] The information included in the Certificate³⁷ identifies the person concerned, Mr. Oberlander, by his proper names, date of birth and with his place of birth as Halbstadt, without naming the country. The certificate bears his signature, as he testified. It also includes as his "civil occupation" the word "LANDARBEITER", i.e. a farm or agricultural worker, and it states his home address as "Haufstrasse, Burgdorf, Celle, Lüneburg", that is, in the town of Burgdorf, a town located fairly close to Hannover. The certificate sets out that the person to whom it refers was discharged on 26 Jul 1945 from the "HEER", i.e., the Army, on the form where instructions in English were for insertion of "Army", "Navy", "Air Force", "Volksstrum", or "Para Military Organization". That information may have come from Mr. Oberlander, though it is typed on the form and he testified it was completed by a clerk, not by him. Nevertheless, he essentially acknowledged in cross-examination³⁸, that when farm workers were wanted and those accepted would be released from the camp, where food was always in short supply, he provided information that would facilitate his release, including as his home address the address of a friend at the camp who agreed he might work on the farm of the latter's family in the area. He also noted that at that time he had no home address and did not know where his mother and family were.

[57] Two other documents, completed in 1947, relating to Mr. Oberlander, were produced at trial, from German archives. One is a card, printed on both sides, described as one produced under the German de-Nazification program resulting from the Law of March 5, 1946 regarding Liberation from National Socialism and Militarism, a law adopted by the Allied Control Council for Germany. The document, a postal card, issued by the Public Prosecutor at Leonberg on 11/11/47 to Mr. Helmut Oberlander, student, at his then address at Korntal, states that "Based on the information in your registration form, the law of March 5, 1946, ... does not affect you".

[58] The second document is a "Meldebogen" or registration form provided for under that same law of March 5, 1946. It bears Mr. Oberlander's signature and it is dated Sep. 19, 1947 at Korntal. It is completed with his birth date, it omits his birth place, and indicates his places of residence since 1933 as Halberstadt from 1933 to 1941, Wehrmacht [Armed forces] from 1942 to 1945 and Hanover from 1945 to 1947. In response to the question "Were you ever an enrollee, candidate, member, supporting member of the a. Nazi Party, b. General SS, c. Waffen SS, d. Gestapo, e. SD (Sicherheitsdienst)" and a number of other organizations, the form is completed with "no" after each organization, even though an asterisk after "SD (Sicherheitsdienst)" indicates a footnote that directs, as translated in English, "Also list secondary work here, e.g. agent", or in lieu of "agent" perhaps the translation should be "informer" as counsel for Mr. Oberlander submitted. In response to a question about "Membership in the Wehrmacht [Armed Forces], police formations, Reich Labour Service..." and "Exact designation or formation", the form has inserted upon it the entry "Infantry Regiment 159". It indicates his highest rank attained as "O.Gefr.", an abbreviated rank which the translator indicates is about the rank of lance corporal. Finally, in response to a question for "Information about your main occupation, income and assets since 1932", the form includes entries that in 1932, 1934 and 1938 he was a "Student", in 1943, "Wehrmacht" and 1945, an "Employee".

[59] With the close of the farming work in the fall of 1945, having been provided with his Certificate of Discharge, Mr. Oberlander had moved to Hannover. There he worked at a canning factory, repairing roofs of buildings, until he learned in 1947 that his mother, and sister and grandmother, were living in Korntal, near Stuttgart. He was able to join them and thereafter, the reunited family moved into one room, an apartment of sorts. He applied for admission to a construction school, and after passing examinations, was admitted. He finished his studies as a certified construction engineer in 1952. In Korntal he had met and, in 1950, married his wife, and they lived with his family after he had finished fixing up a storage room for his wife and himself. There were five people then sharing two rooms, with a makeshift kitchen, and toilet facilities two floors below.

[60] By 1952, when he was finishing his studies, relatives of his wife, who had moved to Canada in 1948, seemed to be getting well-established. Mr. and Mrs. Oberlander were in contact with them and one, in Kitchener, arranged employment for him if he were to come to Canada. The Oberlanders testified that they attended a presentation on Canada at a Canadian office in Stuttgart in 1952. After considering the matter further, in April of that year, they completed and submitted an application form to emigrate to Canada. An affidavit by Mrs. Oberlander's cousin, in Waterloo, Ontario, indicating he had secured a job for Mr. Oberlander and an undertaking to assist them on arrival in Canada, sworn a year later, on May 1, 1953, was suggested by counsel for the Minister as evidence that Mr. Oberlander's application was filed in 1953, but I am not persuaded of this. The affidavit was said by Mr. Oberlander to have been received a year after his application was made and to have been taken by him to Karlsruhe for his interview on August 14, 1953.

[61] They heard nothing from Canadian officials for more than a year after filing their application. Meanwhile, Mr. Oberlander's work as a construction engineer and his work with architects was beginning to develop. He had acquired a car, but adequate housing was still not available and he and his wife continued to live with his family in the small two-room apartment. Then, by a form letter, undated in the translation provided to the Court, but said by Mr. Oberlander to have been received about June 1953, he was advised that the application to immigrate to Canada was accepted and if he were able to comply with civil and medical requirements "You and your family members shall be granted a visa". He was invited to bring specified documents, including a valid passport or travel document, chest x-ray photographs taken as directed, a police certificate, and discharge papers if he had served in the German or another army, and to appear on August 14, 1953 in the afternoon from 2 p.m. to 4 p.m., at the Canadian Immigration office at Karlsruhe. That he did, accompanied by Mrs. Oberlander.

[62] At Karlsruhe, after submitting their documents to a receptionist, and waiting for a time, the Oberlanders say they were separately examined by medical doctors. Then they were interviewed together by another Canadian official who asked when they wanted to go to Canada, noting that the medical approval stamped by the examining doctor on their passports was valid only until December 14, 1953. Because that did not provide time to complete his commitments in construction work and to wind up their affairs in Germany, and suspecting there would be little construction activity in Canada in the winter, Mr. Oberlander and his wife decided to postpone departure until the following spring. They were advised they would have to produce new x-rays in the spring, for the medical approvals, based in part on the x-rays, were valid only for four months after August 14.

[63] I will return to consider in more detail, their testimony concerning the processing of their applications to emigrate to Canada. First, I complete the story of their coming to Canada and settling here.

[64] On February 23, 1954 the Oberlanders returned to the Canadian office in Karlsruhe and submitted new x-rays to the receptionist. After waiting, they say that their family passport was returned to them, stamped with a visa, and with a deadline for travel to Canada to arrive by June 23, 1954. They say they were not interviewed again but were told a letter would be sent to them with instructions to prepare for and to arrange transport to Canada. Those instructions they followed. They travelled to Bremerhaven where they boarded a ship bound for Canada and they landed at Quebec City on May 13, 1954. There they submitted a form earlier provided to them, regarding their landing, which was in evidence as the Landing Card, earlier referred to³⁹; they showed their passports and they were admitted to Canada without any questioning. Curiously, Mr. Oberlander's Landing Card indicates his place of birth as "Halberstadt, Germany" an error which the applicant Minister's representative in discovery acknowledged must have been made by immigration staff who completed the Landing Card when they had before them his passport which lists his place of birth as "Halberstadt, Ukraine".

[65] From Quebec the Oberlanders travelled to Kitchener, Ontario, where, through Mrs. Oberlander's relatives, employment of Mr. Oberlander in construction work had been arranged. Since 1954 they have established their home and their family. In 1960 they applied for and were granted Canadian citizenship. Over the years since their arrival, Mr. Oberlander's work in commercial, apartment and housing development has apparently made a major contribution to the development of the Kitchener-Waterloo region.

[66] While little was said in testimony or argument about Mr. Oberlander's application for, and the grant to him of, Canadian Citizenship, I note for the record that documentary evidence includes a copy of his Application for Citizenship⁴⁰ dated January 12, 1960, and a copy of a Description and of a Certificate of Citizenship⁴¹ for him, dated April 19, 1960. The application contains no request for a declaration by the applicant that he or she is of good character. The only reference to that requirement for citizenship appears in the decision of the County Court Judge, who, having examined the applicant, checked off on the decision form that he found him to be of good character. He checked as well that he found Mr. Oberlander to have been lawfully admitted to Canada for permanent residence.

Earlier investigations of Mr. Oberlander's wartime activities

[67] Following their arrival in Canada two other investigations relating to Mr. Oberlander's wartime activities were undertaken prior to this proceeding, the first by German authorities and the second as a preliminary to this revocation proceeding.

[68] In 1970 Mr. Oberlander was asked by a German lawyer, through the German Consulate in Toronto, to appear in Toronto and be interviewed in relation to charges under investigation in Munich, Germany, against a former commander of Ek 10a during the 1942-43 period, Dr. Christmann. Mr. Oberlander responded reluctantly but he agreed and was then interviewed, apparently by a German consular officer. A statement was then prepared from his interview, which Mr. Oberlander signed as his statement.⁴² He testified at this hearing that at the time of the interview he did not remember the names of the unit's commanders and that he did not know until that interview that the unit he first served with was known as Ek 10a. He says that he did then learn the charges under investigation by German authorities concerned the wartime activities of Dr. Christmann, one of the unit's commanders, whose name he said he did not, at that time recall, and others. A list of those to be investigated included his own name, as appears from the opening description of the document that he signed as his statement. His understanding from German authorities is that following the investigation the file was closed.

[69] Mr. Oberlander's statement signed by him at the Consulate in Toronto, in its English translation, is dated 24 June 1970 and is identified at its beginning, as follows.

In the

preliminary investigation against [X]...and 15 other former members of the Einsatzkommando [Operational Task Squad] 10 a for suspected murder or being accessories to murder (NSG) [...National Socialist Crimes of Violence]

pending at the Regional Court [Landgericht] Munich I -- The Senior Public Prosecutor [Oberstaatsanwalt] -

File No.: 22 Js 202/61

the accused Helmut O b e r l a n d e r appeared today.

The identity of the accused was verified by presentation of the Canadian passport No. FK 050282, issued on 8 May 1969 by the Department of External Affairs in Ottawa, Province of Ontario, Canada.

After the accused had been informed in accordance with section 136, Code of Criminal Procedure (StPO) about the offence of which he is accused, and had been instructed as to his rights, he declared:

...

[70] The statement then identifies Mr. Oberlander, and sets out his biographical background and a brief description of his activities during the war years, after the German army freed his family at Halbstadt in the fall of 1941. The statement is signed by Mr. Oberlander, and by the consular officer who interviewed him. I note that included in the documents submitted in this proceeding by the Minister is a copy of the decision, in German with some pages translated to English, rendered by the Regional Court at Munich, in March 1981, whereby Dr. Christmann was convicted of murder, and sentenced to prison, for his aiding and abetting in two mass executions in the Krasnodar area in late 1942 or early 1943.

[71] In cross-examination of Mr. Oberlander in this proceeding counsel for the Minister raised several questions about this statement, in the main questioning why certain matters stated or acknowledged by the respondent in discovery or at the hearing of this reference were not referred to in the statement. Mr. Oberlander's repeated response was that he had given a voluntary statement about his wartime experience as he remembered it at the time, and the statement appeared to satisfy the consular officer who interviewed him. There is no other evidence of this investigation or about the circumstances of the interview, of the questions asked, directions given or the purposes sought to be met, except for Mr. Oberlander's, and his signed statement. What is set out in the signed statement may be considered here in evidence, since it is a statement said by Mr. Oberlander to have been given voluntarily and signed by him.

[72] The statement is a relatively bland review of Mr. Oberlander's experiences during the war. He denies in the statement that he knew the name of his unit, indeed he also denies twice that Sonderkommando 10a or Einsatzkommando 10a were names known to him. Unknown to him also was Einsatzgruppe D. He also denies he had any medal except a wounded-in-action badge, and further, he denies he had been subjected to a denazification process. He states, with regard to the matter under investigation:

The unit to which I was assigned in 1942 (underlined by hand) was a motley crew (underlined by hand). I no longer remember to which organizations the members of that unit belonged. I don't think they were SS people. I do not know how long the unit existed as such. I was repeatedly on loan to other units, when these needed an interpreter. The entire unit, too, was constantly assigned to different combat groups. In addition, the individual members of the unit were often transferred. In that way there were constant changes. I want to note once again that the names EinsatzKommando 10a or Sonderkommando 10a are completely unknown to me (underlined by hand). As far as I know, my unit did not have that name.

[73] After describing some of the services he performed as an interpreter, and two occasions when he was in hospital, the statement notes that he was on leave several times, including one visit to his family in Halbstadt, the date of which he did not remember. He notes that he did not know who the leader of his unit was. The statement notes that he cannot remember the individual places where he went except for Taganrog, and it later refers to Rostov and his guarding of a barge, but he cannot remember Krasnodar or other places because Russian places had no name signs and he had no map. In his statement he denies knowing anything of the execution of Jews or mentally or physically disabled people by his unit and affirms that he did not observe anything himself, and no one told him anything about that at the time. He denies knowing anything about the execution of Jews in Rostov, or in Taganrog, or of the extermination of Soviet citizens in Krasnodar.

[74] Both the statement of 1970 and the evidence in this proceeding have come some years after the events. It is perhaps not surprising that through the process of preparation for this hearing, after having had the Minister's documents, Mr. Oberlander's testimony differs in some important details from the 1970 statement. Both are similar in one respect. That is, the professed longtime ignorance of Mr. Oberlander in the 1970 statement, during his service with Ek 10a in the war years, about the atrocities committed by men of the unit with which he served. In the statement of 1970 he professed to know nothing of the execution of Jews or physically or mentally disabled people by his unit. He acknowledged in cross-examination that he did come to know of the executions of civilians by the unit probably when they were at Krasnodar. While he took no part he acknowledged that he knew of executions of civilians after interrogation by his unit, he knew of the activities for "re-settlement" of Jews, and he knew the work of an advance unit of Ek 10a that "arrived first in the city [Novorossiysk] which looked after the settlement of the Jews, before the main unit arrived"⁴³. His 1970 statement includes another matter of interest. In response to queries he states (in the English translation):

The alleged order by ... according to which every member of the squad [Kommando] had to participate in an execution at least once, is unknown to me. I personally had no rifle (underlined by hand) and have never participated in any execution (underlined by hand).⁴⁴

I note the statement deals only with his early life and service with the unit, Ek 10a, the matter apparently of interest in the German investigation and later trial of Dr. Christmann.

[75] The second investigation occurred on January 25, 1995, when R.C.M.P. officers, with an interpreter, without any prior notice, called on the Oberlanders at their home in Waterloo, Ontario, and asked to talk to him. They advised they were from the R.C.M.P. war crimes unit, and that they wanted to interview him about some documents they wished to show him. His testimony is that when they assured him that he would not be charged with war crimes, he agreed to talk with them in the absence of his lawyer, but he refused to agree that the interview could be taped by them. On at least four occasions, recorded in the officers' notes of the interview, Mr. Oberlander expressed concern that he should consult a lawyer, but the officers continued their questioning, and only after the interview did they suggest that it might be wise for him to contact a lawyer. Notes were taken by one of the officers. Those notes were introduced and relied upon by the interviewing officers who testified at the hearing of this matter. I note that there had been no caution to Mr. Oberlander at the time of the interview that anything he said, and notes of that, might later be used as evidence in formal legal proceedings.

[76] Mr. Oberlander says that he was excited or upset by the officers' reference to the possibility of his deportation from Canada, a reference made after the interview was well underway and confirmed again at the end of the interview, which he recalls took over two hours. Though the notes indicate the officers stated at the end of the interview that any decision about his situation would be made by the applicant Minister, and that they did not know what that decision would be, I note that the Notice of Revocation in this matter, on behalf of the Minister, was dated only two days later, following the interview.

[77] The process smacks somewhat of unfairness. Particularly is this so where the testimony of investigating police officers concerns an interview when, without advance notice, the person interviewed is questioned about events and documents from some 45 or 50 years earlier, no warning is given that anything he says may be used in evidence against him, and his comments that he needs a lawyer are ignored until after the interview is over.

[78] At the hearing of this matter serious objection was not raised to the evidence of the investigating officers, and I admitted their testimony. Certainly it is relevant, and the only issue is the weight to give any conflicting evidence introduced in this way.

[79] I note that in the course of preparations for this hearing, since it is a civil rather than a criminal process, Mr. Oberlander, as ordered by the Court, was subject to discovery examination. Any evidence from that examination which is said to constitute admissions or to be contradictory to Mr. Oberlander's evidence at the hearing was read into the record and is before this Court, as in the usual civil case. While the Minister's case, in my opinion, must be established primarily on the testimony and documents adduced at this hearing and through discovery, the evidence of the investigating R.C.M.P. officers cannot be ignored.

[80] There are two matters of interest in the evidence of the investigating officers. The testimony of Inspector Watson is, in part, as follows, based on notes he made by hand at the time of the interview.⁴⁵

Sergeant Goguen says: What is being said is that you weren't open about your past when you came to the country. Sergeant Goguen: Who did you talk to at immigration? Mr. Oberlander confers with his wife and said: You were there with me and there was a medical. I was asked for my rank. I was asked to raise my arm and to see if I had a tattoo. He raised his arm. He had no tattoo. Mr. Oberlander: That was it. Five minutes and he said out.

...

...Sergeant Goguen: You had an interview before you came?

Mr. Oberlander: Five minutes. Sergeant Goguen: They asked if you had rank. Mr. Oberlander says yes. And I took that to mean yes, they had asked the question about rank.

Later the interview, as Inspector Watson testifies, continued as follows:

I asked: You saw an advertisement and you put in an application? He goes on: We had relatives here, right? Meaning, Canada. We were refugees. Mother, grandmother, wife and I lived in two rooms, no bath or washrooms. We were fleeing the Russians. This was in Korntal. This was near Stuttgart. There was a housing shortage. We thought Canada was a good place. We had relatives here who said if you worked hard you would succeed. We didn't mind so we filled out an application.

I asked -- then Mrs. Oberlander: Where we filled this out I don't remember. We didn't hear anything so we went on with our lives. Then we heard something, got an invitation to come to Bremerhaven to get processed. I have here that Mr. Oberlander appears confused. And I said the process? The question about the process?

He goes on: There was a camp for immigrants in Bremerhaven. We went there. We had to bring certified x-rays from a doctor. Mrs. Oberlander says: I don't remember. Mr. Oberlander goes on: Then we were told at some stage because application said I was a bricklayer and construction engineer they told us there was a need for us. Then the formality starts. Sign maybe a dozen forms. I brought a police certificate of good conduct, no illegal impediments. Then I came to a next room and there is somebody sitting there asking -- an immigration officer asked me about what rank I was? Whether I was in the military, German army? I said yes. He asked what rank? I said interpreter. What interpreter? Russian, German because I was born in Russia. Then he said show me the arm, which I did.

Bob Goguen asked: Did he say why he looked under your arm? No. Mr. Oberlander: I showed the arm. He scribbled something on paper which I didn't see then we went to the next room. Did he ask -- Sergeant Goguen asks: Did he ask you out loud if you were in the ss? No, Mr. Oberlander's reply.

Did he ask -- Bob Goguen: Did he ask about your unit? He said: I don't remember. I don't know if they were interested. I was a prime age and they wanted me in Canada. Sergeant Goguen: He knew you were an Ostlander? Mr. Oberlander: Yes. In Russia we were Germans now in Germany we were Russians. Both my wife's parents were killed by Stalin's regime. Mr. Oberlander says: This interview with the immigration officer was no more than five minutes. This was the only interview with an immigration officer.

...

[81] The latter reference attributed to Mr. Oberlander, to have been asked some questions about his military service when interviewed by Canadian immigration officials in Germany, is explained by him in the following terms, when cross-examined at the hearing of this matter.

Q. So I read back to you all of this to put it in context. What do you say about what I read from the bottom of the previous page, that they asked about your rank, that they asked you about what kind of interpreter you were, and they asked you to show your arm?

...

A. Well, it's a problem. I should have had this whole conversation taped. So, it was my fault that I didn't want a tape. So this what happens if we one talks two hours and get all confused.

Q. Let me ask you this, Mr. Oberlander, are you saying that what appears in the bottom of page 9, okay, that's where I started reading from, and it goes on to the top of page 10, that you did not say those things? Is that what you are saying?

A. Where they -- they were said in different context.

Q. All right. If you remember -- sorry, go ahead.

A. Mr. Watson asked me. I said I was not asked about my military service.

Q. Yes?

A. Then Mr. Watson asked me if asked what would you say?

Q. I see.

A. Then I explained that I was interpreter and explain to him.

Q. So what you are saying is that what is being attributed to you in these notes you said that after Watson said if asked what you would have said?

A. Yeah. He want to know what my position would be.⁴⁶

[82] The second matter of interest in Inspector Watson's testimony relates to a matter mentioned in the 1970 statement of Mr. Oberlander to the German consulate:

... Sergeant Goguen. We were led to believe that all members of the Einsatzgruppe had to participate in one cleansing operation at least. Mr. Oberlander says no. Because of my age. Bob Goguen: Is it true they had to participate? Mr. Oberlander says: German soldiers had to participate or they would be killed.

Sergeant Goguen asked him to be specific. He went on to say where he knew at least one case where a German soldier was executed by his own group ....

Mr. Oberlander denies that he was personally involved in this sort of thing. Sergeant Goguen asked: What age would you be required to participate? Mr. Oberlander responds that these were older men in their 30s and 40s, career soldiers. I was never asked to participate.⁴⁷

[83] In cross-examination about this matter, counsel referred to the statement attributed to Mr. Oberlander that "older men in their 30s and 40s, career soldiers" participated in the operation, apparently seeking an acknowledgment by Mr. Oberlander that the situation described by the R.C.M.P. officer did occur. Mr. Oberlander commented:

A. Well, it should read never told. People -- I was not asked, they've been told.

Q. (Counsel) All right. Fine.

A. I have no response to this, to these things. I don't know what the mind set was at the time we talked, because my wife talked at the same time and there was kind of confusion all the way around. Blank statements were made.⁴⁸

I note that in his 1970 statement to German authorities Mr. Oberlander states that "the order ... according to which every member of the squad [Kommando] had to participate in an execution at least once, is unknown to me."

[84] I turn from Mr. Oberlander's activities during World War II and in his subsequent years in Germany and in Canada, to consider Canada's postwar immigration policy and immigrant security screening practice when he came to Canada in 1954.

Canadian Immigration Policy after 1945

[85] The Court was assisted by testimony and an affidavit⁴⁹ of Mr. Nicholas D'Ombrain concerning the evolution of Canadian immigration policy and security screening for immigration purposes. Mr. D'Ombrain was accepted as an expert in relation to the workings of Cabinet Government in Canada and federal arrangements for security.

[86] At the end of the war in 1945 Canadian immigration policy was governed by regulation enacted in 1931⁵⁰ pursuant to the Immigration Act of 1927.⁵¹ Because of economic circumstances in Canada, immigration in the decade before the war was essentially limited to persons from the United Kingdom, Ireland, Dominions of the then British Empire, and from the United States. Apart from certain close family members of persons previously admitted to and resident in Canada, few immigrants were admitted into Canada. In the 1930's immigration numbers were an average of only 7,000 a year, a significant drop from the 165,000 admitted to Canada in 1929.

[87] Commencing in 1945 Canadian interest in immigration was revived with renewed emphasis, first to meet manpower requirements particularly in agriculture and in resource industries, and for other trades and industries, and to assist in resettlement of some hundreds of thousands of persons who were displaced from their homelands as a result of the war in Europe. Government policy, with public support, led to re-establishment and ultimately expansion of an immigration service to deal with a significant increase in applicants for admission to Canada. The categories of persons eligible for admission as permanent residents were increased, first by providing opportunities for those who had come to Canada during the war essentially as refugees, then by extending the range for and removal of barriers to sponsoring relatives by persons already resident in Canada, and by adding classes of persons eligible as immigrants including those admitted to fill specific labour market needs. The first provision for admission of displaced persons in June 1947 was for 5,000 to be admitted, a number increased by stages to 40,000 by the fall of 1948, the numbers increasing through that short period as ships to carry the immigrants to Canada became available.

[88] The government's policy was outlined by then Prime Minister Mackenzie King in a speech to the House of Commons on May 1, 1947.⁵² In that address he outlined the basis for policy to encourage immigration and he emphasized Canada's interest in assisting in resolution of the substantial international problem of settling displaced persons.

[89] By 1950 the Minister of Mines and Resources, then responsible for immigration, was given broad discretion to permit landing in Canada of suitable persons.⁵³ In September 1950 a prohibition was abolished against admission to Canada of German nationals,⁵⁴ who until then were still formally classed as enemy aliens and inadmissible. That was soon followed by abolition of the similar prohibition against other former enemy nationals. This opened the door to Canada for the immigration of Germans, Italians and others from eastern Europe, formerly prohibited from entry as enemy aliens. These and other changes led to a significant increase in immigrants to Canada in the post-war years.

Security screening of prospective immigrants, 1945-54

[90] As interest grew in increasing the flow of immigrants and as staff, facilities and programs were arranged to provide for it, there was at the same time a concern for security, and for screening prospective immigrants to ensure, so far as it was possible, that those admitted for permanent residence would be likely to make a positive contribution to Canada's developing society, and would not threaten the internal or international security of the country.

[91] In the post-war years screening of applicants for immigration to Canada for security purposes was a requirement for most of those in the new categories of eligible applicants. In 1947 the Cabinet determined that security screening of aliens applying for entry to Canada be required in cases as determined by immigration authorities, and by instructions of the Immigration Branch that screening was applied for all but British subjects, citizens of Ireland, France, South Africa, the United States and some Latin American countries.⁵⁵ In particular security screening was undertaken for those among displaced persons in Europe, and later for those of German and Italian nationality applying as independent immigrants when they became eligible in 1950.

[92] 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 to the Cabinet, which reported directly to the Prime Minister. Policy as ultimately approved by Cabinet was then implemented by operating departments or agencies, and co-ordinated by the Security Panel. In the early post World War II years, with the Cold War evolving, there was concern to screen immigrants in order to seek to prevent admission to Canada of those who had supported Nazi causes and those who were communists. That concern related particularly to displaced persons from eastern European countries that after the war were within the Soviet bloc, for little or no reliable information was anticipated or was available from government or other sources in those countries about individuals who had originated there.

[93] From 1946, the R.C.M.P., then responsible for security operations within Canada, was assigned the same responsibilities in relation to immigrants seeking landed status, i.e. permanent residence, in Canada. Initially this was done with regard to those who had arrived as refugees during the war who were permitted to apply for permanent residence from within Canada, and then for those sponsored by close family members in Canada. An R.C.M.P. mission was established in London to deal with security screening of many seeking to come to Canada from Europe. That mission later expanded to continental Europe. By 1948 there were 11 officers serving in Germany as security officers, known as Visa Control Officers ("V.C.O.s"). They were based at or attached to the headquarters for immigration in then West Germany, at Karlsruhe, with teams stationed at or travelling to several camps for displaced persons. Then or soon after there were also officers in Brussels, Salzburg, The Hague, Copenhagen, Stockholm, and Rome, all subject to direction and coordination from London. Many officers were regular officers of the R.C.M.P. Others, recruited by the R.C.M.P. for this purpose, had served with Scotland Yard in England or with military intelligence in Europe.

[94] Initially the security screening was done on the basis of oral directions from R.C.M.P. headquarters at Ottawa, after Cabinet had decided in August 1946 that security screening of prospective immigrants would be dealt with by departmental administrative action without enacting legislation.⁵⁶ In time, criteria were set down, based upon policy and practice. Subsequently, changes in the original criteria were approved by the Security Panel and by Cabinet. The earliest statement of the criteria in evidence before the Court is a memorandum from R.C.M.P. records, dated at Ottawa, November 20, 1948 entitled "Screening of applicants for Admission to Canada".⁵⁷ This provided as follows:

Any one or more of the following factors, if disclosed during interrogation or investigation, will be considered as rendering the subject unsuitable for admission:

(a) Communist, known or strongly suspected.

Communist agitator or suspected Communist Agent.

(b) Member of SS or German Wehrmacht.

Found to bear mark of SS Blood Group (NON Germans).

(d) Criminal (known or suspected).

(e) Professional gambler.

(f) Prostitute.

(g) Black Market Racketeer.

(h) Evasive and untruthful under interrogation.

(i) Failure to produce recognizable and acceptable documents as to time of entry and residence in Germany.

(j) False presentation; use of false or fictitious name.

(k) Collaborators presently residing in previously occupied territory.

(l) Member of the Italian Fascist Party or of the Mafia.

(m) Trotskyite or member of other revolutionary organization.

[95] The criteria outlined in the 1948 R.C.M.P. memorandum were the basis of decisions made by security officers considering prospective immigrants. Criteria (d) - (g) in the list were later of primary concern to immigration officers, after 1952. This statement of criteria was accepted as policy by the Security Panel. Modest modifications were made in 1950, to eliminate the complete ban on admission for former members of the Wehrmacht. Later, in 1952 further changes introduced some discretion in assessing former members of the Nazi party⁵⁸, and others, to exclude only major offenders among them, and discretion to admit certain former members of the Waffen-SS, and minor collaborators. Policy reflecting these modifications was approved by the Security Panel in May 1952 in the following terms:⁵⁹

... the following persons should be refused entry to Canada as immigrants:

a) Former members of the S.S., the Sicherheitsdienst, the Abwehr, the Gestapo, and any former member of the Nazi party who, under Allied Control Council Directive No. 38 of the 12th October 1946, was classified as a Major Offender or Offender or who, on evidence before a Security Officer, is in his opinion within either of these categories. Particular care should be taken to exclude persons who were responsible for brutalities in concentration or labour camps.

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 naturalised German 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 naturalised German before joining, when there are reasonable grounds for believing that naturalisation was not of their own choosing, and reasonable grounds for believing they were conscripted or joined under coercion.

iv. German nationals, Volksdeutsche formerly residing in territory not occupied by the Wehrmacht, whether subsequently naturalised German or not, or other nationalities, when any of these persons can satisfy the Security Officer that they were conscripted or joined under coercion.

c) Former collaborators who should be excluded on grounds of moral turpitude, except minor collaborators whose actions resulted from coercion.

That decision was communicated to the R.C.M.P.⁶⁰

[96] Whether the Security Panel's modifications were appropriately applied by security officers at Karlsruhe or whether they were ignored by them and with what legal implications was a matter raised in the course of cross-examination of former security officers in this proceeding. The principal issue concerned paragraph (a) in the policy adopted in May 1952.

[97] When word of these changes reached Mr. Kelly, then R.C.M.P. Liaison Officer in London, in August 1952 he wrote to Ottawa seeking clarification about how the modified clause (a) was intended to affect applicants who were former members of the designated organizations other than the Nazi Party. A series of letters followed, ultimately with a letter of January 21, 1953⁶¹ from Mr. Kelly to Ottawa setting out his understanding of that exchange and appending to that his list "Reasons for Rejection", which he proposed, subject to direction otherwise, for circulation to his officers in the field. That list includes only the security reasons for rejection that were of concern to the R.C.M.P. in London, to be used as guidance for the officers in the field. Mr. Kelly's evidence in cross-examination was that the differences earlier raised in his correspondence with Ottawa were resolved and that the statement of reasons he developed was circulated to officers in Europe.⁶² He acknowledged that this conclusion was based on his review of documents following an appearance by him some years ago before the Deschênes Commission⁶³ when he could not recall the outcome.

[98] The list of reasons developed by Mr. Kelly is as follows:⁶⁴

REASONS FOR REJECTION

Reasons for Rejection are as follows:

A. (l) Communist, known or suspected.

(ll) Communist agent, known or suspected.

(lll) Communist agitator.

(lV) Communist sympathizer.

B. Former members of:

(l) The Allgemeine S.S. All former members.

(ll) The S.A. All officers down to Unteroffizier and all member who joined prior to 1 April, 1933 regardless of rank.

(lll) The S.D. All former members.

(lV) The Abwehr. All former members.

(V) The Gestapo. All former members.

(Vl) The Waffen S.S. All former members down to the rank of Unteroffizier, regardless of conscription or coercion.

All former members below the rank of Unteroffizier unless there are reasonable grounds for believing that the man was conscripted or joined under coercion.

As a practical guide it will be taken that there was no conscription or coercion before 31 December, 1943.

All former members of the TOTENKOPFVERBANDE and concentration camp personnel.

C. The N.S.D.A.P. and affiliated organizations.

Former members who held an important rank or who were particularly active.

H. Evasive and untruthful under interrogation.

I. Failure to produce recognizable and acceptable documents.

J. False presentations, use of false or fictitious name.

K. Collaborators where the investigating officer feels the circumstances of the collaboration are serious enough to warrant rejection.

L. Policy on Fascist Party pending.

M. Trotskyite or member of MAFIA or of any revolutionary organization.

[99] Mr. Cliffe, a former security officer, testified that while he was in Germany in 1953-54 this statement of the Reasons for Rejection was applied by officers in the field. Both Messrs. Kelly and Cliffe testified that in the field, former members of the SS, the Sicherheitsdienst, the Abwehr and the Gestapo continued to be rejected automatically by security officers. Neither Mr. Cliffe nor Mr. Poole, another former security officer, were aware of the terms of the Security Panel's decision in May 1952 when they were serving as V.C.O.'s.

[100] It is urged for Mr. Oberlander that the statement of rejection criteria distributed by Mr. Kelly to his officers in the field was not authorized and that the lawful rejection criteria in existence from May 1952 were those set out by the Security Panel.⁶⁵ The statement of the Security panel is set out in a memorandum dated June 19, 1953, to or from the Officer-in-charge at Karlsruhe with reference to "Former members of the Waffen S.S."⁶⁶. That sets out the Security Panel's statement, clauses (a) and (b), but omitting clause (c) which concerned collaborators, indicating that at least the clauses there repeated were known to the Officer-in-charge at Karlsruhe. Nevertheless, there is no evidence of a negative response from Ottawa to Kelly's restatement of the Reasons for Rejection which he requested be commented upon before his proposed distribution of his statement as guidance for his officers in Europe. Moreover, his objective was to set out a complete statement of the rejection criteria, including those approved in May 1952 by the Security Panel, and those earlier approved, in terms that could be readily applied in the field, without individual officers having to interpret Allied Control Council Directive No. 38 of 12 October 1946 referred to in the Security Panel statement⁶⁷. As he interpreted the Allied Directive, members of the SS, the Sicherheitsdienst, the Abwehr, the Gestapo were offenders or major offenders under that directive and thus were excluded automatically under the Panel's decision. Counsel for Mr. Oberlander urged that Mr. Kelly's interpretation of the Allied Directive was wrong or unreasonable, or unlawful. I am not persuaded this was so. The statement was intended as guidance for officers in the field. If it were not acceptable for that purpose it would be expected that Ottawa would have objected to it, as it had done with earlier correspondence from Mr. Kelly about the Security Panel's decision. There is no record of any objection. He requested Ottawa's views before sending the amended Reasons for Rejection to men in the field.

[101] Both Mr. Cliffe and Mr. Poole, former security officers, indicated that the Reasons for Rejection as set out by Mr. Kelly were used by them in dealing with immigrant applicants in Germany, Mr. Cliffe in 1953-54, and Mr. Poole when he spent two weeks at Karlsruhe in 1954, and thereafter in Munich and later in Stockholm.

[102] Three former visa officers of the Immigration Department testified in this proceeding. One, Mr. Donald Archie Dubé, served as a visa officer in processing immigration applicants at Karlsruhe and in Berlin in 1953 and 1954. Another, Mr. Roger St. Vincent, was attached to Karlsruhe from 1948 to 1952 but served on one of the "flying teams" composed of a security officer, a medical doctor and an immigration officer, that were fully engaged in processing refugees and displaced persons in camps throughout Germany. The third former visa officer, Mr. Joseph Aldard Walter Gunn, served in Brussels from 1954 to 1957. None of them had experience with security screening but each had served, as the immigration officer concerned, working with a security officer or V.C.O., and with a medical officer, in screening applicants for immigration. Their evidence, with that of three former R.C.M.P. officers who had been involved in security screening described the process followed in considering applicants for immigration. That process they understood to be in place generally in Europe, and particularly in Germany, and at Karlsruhe.

[103] The former R.C.M.P. officers included Mr. William Kelly, former Deputy Commissioner of the force, who served from June 1951 to August 1954 as R.C.M.P. liaison officer in London, England, and as supervisor of all security screening operations in Europe by security officers. In addition, Mr. Donald Douglas Cliffe, former Chief Superintendent of District 2 in British Columbia when he retired, who had served as a security officer in Rome and Naples from 1951 to 1953, and then at Munich, attached to Karlsruhe, from 1953 to 1954, and then from 1954 to 1958 at Stockholm and Berne, testified about his experience as a V.C.O. Mr. William James Henry Poole, who was introduced to the work of a security officer at Karlsruhe for two weeks commencing in June 1954, then served at Munich for three years, and subsequently in Stockholm and at Stuttgart, also testified about his experience as a V.C.O. in the field.

[104] There was some question about the relevance of the evidence provided through these former security officers whose terms and sites of service did not include service in 1952-54 at Karlsruhe when and where Mr. Oberlander's application was considered and his visa to come to Canada was issued. I admitted their evidence. 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. Mr. Kelly's responsibilities for supervision of all V.C.O.'s in Europe took him on regular visits to the various offices in Europe, including Karlsruhe, where R.C.M.P. staff were responsible for security screening. He observed their work and examined their records and his own office was responsible for sharing information among the V.C.O.'s. Mr. Cliffe served in Europe, including brief service at Karlsruhe and, while attached there, also at Munich from the summer of 1953 to the fall 1954, and Mr. Poole served in Germany commencing within weeks of Mr. Oberlander's arrival in Canada, including two weeks introductory training at Karlsruhe. There was no evidence of any change in the process that would render his evidence irrelevant with respect to the process generally followed.

[105] The regular process at offices in Europe for considering applicants for immigration to Canada, as independent immigrants, not sponsored by family in Canada and not accepted as displaced persons to fill designated labour quotas, started with completion of an application form by the intended immigrant. The form, including the questions asked in it, was developed in successive formats, and the form here determined to be in use when Mr. Oberlander applied to come to Canada is a matter of some significance, to which I shall return after describing generally the entire process.

[106] When a completed application was received at a Canadian immigration office it was reviewed quickly, a "paper screening" process to eliminate any applicant who clearly had no chance for acceptance. If not screened out, a file was created and that was passed to the visa officer responsible as the immigration department's representative on a team for processing applicants. It was then passed by him to the Visa Control Officer. From the applicants' files, a list of applicants, and later an individual "green form" for each applicant, was prepared by the V.C.O., including brief identification and biographical information about the applicant, with his addresses and employment record of recent years where this was available from the application. The list or later the green form was sent by the V.C.O. to police and intelligence sources, including, in Germany, through U.S. authorities to the Berlin Documents Centre where many of the records of the era of the Third Reich were stored, to obtain any further information available about an applicant. When the green forms were returned from the external sources, normally within six weeks of their dispatch by the V.C.O., arrangements were made to call in the applicant for interview. For independent applicants from Germany, not including displaced persons housed in camps, interviews were conducted at Karlsruhe, and all applicants were called in at this stage to Karlsruhe and directed to bring certain documents. On the appointed day, when the applicant appeared with the documents, each was then interviewed, first by the security officer, then by the medical officer and finally by the visa officer. A visa officer would only interview and consider an applicant after the assessments were done by the security officer and the medical doctor. Families were dealt with together and at least for the final interview by the visa officer, and perhaps for the interview with the security officer, spouses, husband and wife, were generally interviewed together.

[107] The task of the security officer was to assess the applicant for immigration in light of the security criteria. Messrs. Kelly, Cliffe and Poole described the process consistently. There was attention paid to what the applicant had done and where he or she had lived over the years since 1938 or 1939. If the applicant was originally from another country the date and circumstances of her or his arrival in Germany, or other country of application, was questioned, and questions were raised about activities during the war years and about the addresses and military experience of the applicant over the years, including the war years. If a male applicant were of age to have served in the military or other wartime services this would be questioned in considerable detail.

[108] In response to a question concerning the criteria and his practice in applying them, Mr. Cliffe testified as follows.⁶⁸

Q. I'm going to show you another document, sir. I wonder if I can have the respondent's binder. I'm showing you a document now, Mr. Cliffe, that is the last page of Respondent's Exhibit 11. I wonder if you could have a look at that? It appears to be a memorandum simply entitled reasons for rejection.

[Note: the document referred to is the statement produced by Mr. Kelly in January 1952]

...

Q. Were these criteria in force when you were in Germany?

A. Pardon me?

Q. Were these criteria in force when you were in Germany?

A. Yes, in '53.

Q. And did they remain in force during --

A. All the time I was there.

Q. All right. How did you interpret them in the sense that, if you had evidence that someone was in the Allgemeine-SS or the SA or something did you go into it, or was it -- how strictly did you apply these criteria?

A. Again, if the man had served in the Second World War, a German or a non-German even, you started out: Where did you serve during the war? If he was honest and truthful and came out and said, 'Well, I was with the Allgemeine-SS.' I see. But all this time I'm making notes. When and where were you born? And, who are you? And, what are you? And so on.

And now we get to the war time. What did you do? I served in the Allgemeine-SS. Which part of the Allgemeine-SS were you in? Well, I was with the Sicherheitsdienst. I was in the secret police. I see. How long were you with them? What rank did you hold? Who was your boss? Who did you take your instructions from? What did you do? Where was your unit located? How long were they there? Where did they go then and what was your job all this time? And when did you leave the Sicherheitsdienst? Were you in uniform? Were you armed? Were you in plain clothes? What was your job? And all these things I went through. But being in the SD he's excluded, but the more I could find out about what he did, fine.

Mr. Cliffe explained the purposes of detailed questioning. First, he wanted as complete a record as possible of the background of an applicant even if he were ultimately rejected. Second, that detailed background of an applicant's service became part of the general intelligence available about the locations and services of German military and police forces during the war, for use in considering applications generally.

[109] Security officers were concerned to ensure so far as possible, from the application form, from reports from their information sources, and through the interview, that persons with an involvement in communist or in Nazi organized activities were identified and rejected if there was any doubt that they might be classified within the categories for rejection. Any doubt was resolved in favour of Canada, by rejecting the applicant. The V.C.O. recorded his decision on the file at the end of an interview, either "Passed Stage B" or "Not passed Stage B". The applicant was not advised of the purpose of this interview, though Messrs. Cliffe and Poole acknowledged that any astute applicant would be aware from the questioning that its purpose was for security or political reasons in a general sense.

[110] That decision was final. The evidence clearly supports the conclusion it was accepted by the visa officer unless there were some reason for him to refer the matter back for further consideration. Moreover, the immigration officer did not consider an applicant in an interview until after the security officer's assessment had been made, a requirement supported by the evidence of the former security officers and the former immigration officers.

[111] Even those who were "Not passed Stage B" were examined by the medical officer and the visa officer. That helped to mask the fact that the decision might be based solely on security grounds. This was in keeping with government policy⁶⁹ that security reasons for rejection not be revealed to an applicant. In order to be admissible and be granted a visa an applicant had to pass all three stages, i.e. Stage B or the security screening, the medical officer's examination, including approval of the x-rays presented, and he or she had to demonstrate to the visa officer that all other requirements under the Immigration Act were met.

[112] Families seeking to come to Canada were considered on the same occasion, often at the same time for medical purposes and for the visa officer's purposes, and perhaps even for security clearance. Those who were approved by the V.C.O., by the medical officer and who met requirements under the Act, and possible employment limitations, were admissible. When they could satisfy the visa officer that their passports or travel documents were in order and there was reasonable assurance they could arrange transport to Canada to arrive within the time limited by the medical officer's determination of the period of validity of an x-ray report, usually four to six months, they were granted a visa by stamped entry on their passport.

[113] That was the process in place at Karlsruhe so far as Mr. Kelly could direct and so far as he knew, and it was the process believed by Messrs. Cliffe and Poole, and by Messrs. Gunn, St. Vincent and Dubé to be in place at Karlsruhe. None of them knew of cases in Germany in the period 1952 to 1954 when independent applicants had been issued a visa without being interviewed and passed by a visa control officer. It was acknowledged by Mr. Gunn that in Brussels, and by Mr. Poole that in Stockholm, approval might be given and a visa issued without an interview for security purposes where the applicant was a native of Belgium or Sweden respectively, and security and police authorities there had no question about the individual's past activities. There was evidence that Mr. Kelly had visited Belgium to investigate a report that approval at Stage B was granted without an interview, a practice he ultimately approved in circumstances where a native and lifetime resident of Belgium applied to emigrate to Canada and Belgian authorities had no adverse reports about the person. That practice was not followed in Germany where each applicant was required to be interviewed by a V.C.O.

[114] The evidence of Messrs. Kelly, Cliffe and Poole was that a security officer always conducted an interview, in addition to checking police and other sources, except in certain accepted situations in Belgium and Sweden, as noted. It was urged for the respondent that those exceptions to the general process reflected discretion for the V.C.O. to determine whether an interview should be conducted. There is no evidence of, and I am not persuaded that there was discretion of this sort at Karlsruhe. Messrs. Kelly, Cliffe and Poole knew of no case at Karlsruhe where security clearance was or would be given without an interview. Both Messrs. Cliffe and Poole stated that in considering applicants from Germany they always did so by a personal interview with the applicant after obtaining whatever information was provided in response to the inquiries to police and intelligence sources. When asked why an interview would be undertaken in a case where no negative information came from police sources, Mr. Poole said, in effect, because an interview was required. Both Messrs. Cliffe and Poole testified that if an applicant for immigration were found to have served as an interpreter with the SD in an Einsatzgruppe unit he would have been rejected automatically.

[115] I accept that the process for dealing with applications as described by the former visa officers and former V.C.O.'s was in place at Karlsruhe in 1952-1954. Whether the process was followed in regard to Mr. and Mrs. Oberlander's application to come to Canada is a key issue in this proceeding.

[116] Two issues concerning the application of the rejection criteria were raised. The first, concerning discretion or lack of discretion of the security officer in considering persons from the organizations designated in clause (a) of the Security Panel's decision of May 1952, has been dealt with in considering the status of the reasons for rejection circulated by Mr. Kelly in early 1953. The second, which was not dealt with at length in evidence, concerns the application of the clause in the rejection criteria concerning "collaborators". That term is described somewhat differently in the Security Panel's decision, and in Mr. Kelly's statement of reasons for rejection. The understanding of that term, of Messrs. Kelly, Cliffe and Poole was questioned at the hearing.

[117] In cross-examination Mr. Kelly defined a collaborator as "a person, a non-German who had assisted the enemy willingly or perhaps unwillingly, it all depends on what the circumstances were"⁷⁰. He did not agree with the suggestion that there was confusion among R.C.M.P. officers about the meaning of the term and he did not accept a definition offered by a former security officer in another case which would limit the term to those who assisted the Germans in running the government of an occupied country.

[118] Mr. Cliffe spoke of collaborators only briefly, reflecting an understanding of the term similar to that of Mr. Kelly. He said, with reference to dealing generally with a person of Volksdeutsche origin, that when the Germans invaded the country where such a person was living and he worked with the Germans "he's a collaborator"⁷¹. Mr. Poole, when asked in cross-examination his understanding of the term, said that "collaboration" was aiding and assisting somebody or some organization to carry on whatever that person or organization wanted to do, that is "to help them along the way". It could, he suggested also mean that, in helping, the person concerned shared the beliefs of the person or organization supported.⁷²

[119] While there may have been differences among security officers about the application of the criterion "collaborator" in a given case, I am not persuaded that in 1953, soon after the end of World War II, there was a serious difference among them about the use of the term in relation to those who assisted enemy activities against their own country's interests in any serious way.

Application forms for Prospective Immigrants in the early 1950's

[120] In evidence before me were at least three versions of the application form used by the Canadian immigration service in the early 1950's, the form which came to be known as an O.S.8 form used for independent applicants applying to come to Canada.

[121] An early version of O.S.8, marked "Rev. 15-12-50", in typed format, included, among other matters, space for information, about the following:

- Former addresses in other countries of residence,

- Citizenship,

- Date, Place and Country of birth,

- Languages spoken or written,

- Name and address of present or last employer, the work done and the period of employment,

- Similar information on the longest job held in the past 10 years and the number of jobs held in that period.

[122] Other versions of O.S.8, produced in 1953 or later, for use in Germany, include more specific questions about previous addresses, and employment or wartime or P.O.W. experience, over ten or more years, including the years of World War II. They also include a question concerning the date and circumstances of arrival in Germany if the applicant originated in another country. All this information was of particular interest and significance for the V.C.O.'s, as Messrs. Kelly, Cliffe and Poole testified. It was the sort of information that formed part of the basis for preparation by the V.C.O. of the "green form" for circulation, seeking information from various sources of security or police information.

[123] Yet there is no evidence before me that the application form in use in Germany in the spring of 1952, when I find that Mr. Oberlander applied, included more than the general questions asked in the form dated "Rev. 15-12-50", partly summarized above. There are not specific questions seeking adresses and employment over ten years or more, or seeking information on former wartime service. Mr. Oberlander's testimony that the form he completed did not ask questions about his wartime activities is consistent with the completion by him of that form, rather than one later produced. Nevertheless, it is my opinion, that the questions asked in the "Rev.15-12-50" form, including those summarized above and questions seeking other biographical data, were sufficient to identify the applicant for purposes of obtaining information from the security officer's sources, providing a basis for his oral examination of an applicant.

[124] I was invited by counsel for the Minister to conclude that the Oberlanders made application to come to Canada in the spring of 1953 rather than in 1952. That might explain the alleged delay from their 1952 April submission until the invitation to appear for interview more than a year later. It was said this might also explain the affidavit sworn in May 1953 by one of Mr. Oberlander's sponsors, which he says he took with him to Karlsruhe. Further, Mr. Oberlander acknowledged that he might have learned of the dates appearing on the different versions of the O.S.8 form before the court from examination by a former counsel of the documents produced by the Minister in preparation for dealing with the Minister's notice of revocation.

[125] I am not persuaded to find that the Oberlanders' application was submitted at Karlsruhe in 1953, rather I accept and find that, as both Mr. and Mrs. Oberlander testified, it was submitted in April 1952. That date they reconstructed from their recollection of the pregnant state of the wife of the first man to sponsor Mr. Oberlander for employment. It is said she gave birth in 1952, roughly a month or so after they had submitted their application. Moreover, the time required for processing their application, including the time for them to acquire x-rays and other documents, would hardly have permitted reasonable notice to them to appear for interview on August 14 if their application had been submitted in April 1953.

[126] In summary, in relation to the application forms in use in Germany in the early 1950's, while there is no direct evidence on the matter other than Mr. Oberlander's testimony, on a balance of probabilities I find that he made application to come to Canada, as he says he did, in April 1952. I find that he must have used an O.S.8 form dated "Rev-15-12-50", which did not ask specific questions about his wartime activities or movements. That form, inter alia, requested former addresses in other countries of residence, and information on the longest job held in the past ten years and the number of jobs held. I find, if completed honestly that O.S.8 form 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 Mr. Oberlander.

The processing of the Oberlanders' application for immigration to Canada at Karlsruhe

[127] The Oberlanders' evidence, as we shall see, is that they were not interviewed by anyone other than a medical officer and by an officer, who from the interview as they describe it, would appear to have been a visa officer. The Oberlanders testify that they were not asked any question about Mr. Oberlander's previous wartime service or activities.

[128] Their testimony that they were not interviewed by anyone who asked about Mr. Oberlander's wartime experience was not the only such evidence heard in this proceeding. One other person, Mr. Peter Bufe, came forward at trial and testified about his own experience of the processing of his application, to come to Canada, at Karlsruhe. He was interviewed there, he believes in June 1952, he was granted a visa in February 1953 and he arrived in Canada in May 1953. His recollection parallels that of the Oberlanders, at least in relation to the lack of interrogation about his wartime activities.

[129] Both the Oberlanders and Mr. and Mrs. Bufe made application to come to Canada early in 1952. Mr. Bufe's testimony is that he was interviewed at Karlsruhe in June 1952 and he was landed in Canada in May 1953. The Oberlanders were interviewed at Karlsruhe in August 1953. They appeared again at Karlsruhe in February 1954 when their visa was issued and they were landed in Canada in May 1954, a year after the Bufes.

[130] Both Mr. Bufe and Mr. Oberlander acknowledged they made application by completing and submitting an application form received from Canadian immigration authorities, and when separately called to be interviewed at Karlsruhe each provided the supporting documents directed to be produced. Mr. Bufe remembered no details about the application form. Mrs. Oberlander had no recollection of the application form, which her husband had completed to include the two of them as a family unit. When asked in direct examination whether there was anything he could remember about the application form "of your own knowledge not having seen documents, just your own knowledge" Mr. Oberlander responded "nothing special".⁷³ In cross-examination, when shown a number of O.S.8 forms, Mr. Oberlander testified that the form he had completed and submitted to Karlsruhe did not have a question about military service.⁷⁴ Earlier, when shown an application form by the R.C.M.P. investigators in 1995 and asked whether he had completed a similar form he had said he could not remember. He could not recall any details of the form at the hearing except that he was certain that he was not asked to respond to any written questions about his wartime activities and service.

[131] I turn first to the evidence of Mr. Oberlander. His evidence is that he is clear he was not asked questions in writing on the application form about his wartime service and that, after separate medical examinations at Karlsruhe, he and his wife were interviewed together by an immigration officer who asked no questions about his wartime activities. No questions were raised about the information in the certificate of discharge issued when he was released from the British P.O.W. camp near Hannover in 1945, which was one of the documents he took for his interview at Karlsruhe. It will be recalled that this document indicated his civil occupation as "Landarbeiter" with a home address at Burgdorf, Celle, Lüneburg. His place of birth was correctly recorded as Halbstadt without reference to his country of origin, Ukraine, and it indicated he was discharged from the HEER (the army).

[132] Mr. Oberlander testified that he could remember very clearly that the only immigration officer they met at Karlsruhe asked no questions about his wartime activities. Rather, he was very friendly, asked where they planned to go in Canada and when told they planned to go to Kitchener, the officer indicated that it was a major centre for persons of German origin. When asked when they wanted to go to Canada, and when it became apparent they did not want to go before December 14, 1953 but wished to go in the spring when employment prospects in construction work would be better, the officer said they would have to return with new chest x-rays in the following February if they hoped to get to Canada by May.

[133] A visa was not issued in August 1953. The Oberlanders' passports, their application and supporting documents, at least those earlier submitted, were left with the immigration office in Karlsruhe. Mr. Oberlander did not recall whether he was called to provide further x-rays in February 1954 or whether he simply took the initiative to provide them. He did provide them, taking them to Karlsruhe on February 23, 1954. After delivering the x-rays to the receptionist, and waiting for a short time, the passport for Mrs. Oberlander and himself was returned to him with the approval stamp of National Health and Welfare Canada, and a visa stamp dated February 23, 1954 indicating it was valid to June 23, 1954 for presentation at a Canadian port of entry.

[134] His evidence is that, except for their separate medical examinations by medical staff which were conducted simultaneously, he and Mrs. Oberlander remained together at the Canadian immigration office in Karlsruhe on August 14, 1953, both in the waiting room and in the interview by the immigration officer.

[135] Mr. Oberlander's testimony about his experience at Karlsruhe on August 14, 1953 is supported by the testimony of Mrs. Oberlander. In cross-examination she acknowledged that after the surprise visit of the R.C.M.P. in January 1995, she and her husband had searched for any of the documents they could find about their early years in Germany and their coming to Canada and thereafter they had together sought to recall events now long ago. Her testimony of the timing of the application to come to Canada, of the interview process at Karlsruhe in August 1953 and thereafter, until application was made for citizenship in 1960, closely parallels that of her husband and is supportive of it. She remembered somewhat more detail, that at Karlsruhe in August 1953, after submitting their documents upon arrival, they had waited for perhaps an hour or longer, that they had been the last or virtually the last of the applicants seen that day, and that, after a wait of about ten minutes, together in the waiting room, following their separate medical examinations, a friendly immigration officer saw them together at the end of the afternoon had noted two employment offers for Mr. Oberlander. She recalled also the return to the offices in Karlsruhe in February 1954, and that in addition to the return of their passport they were provided with instructions on booking passage to Canada and what to do to prepare for the voyage.

[136] With respect, I give little weight to Mrs. Oberlander's evidence in regard to the key issue whether any questions were asked concerning Mr. Oberlander's background and military service during the war. I have no doubt that she believes her evidence and she is a credible witness in that sense. Yet I do not accept that her evidence is independent, based upon her own memory. Indeed, she acknowledged at the hearing that following the R.C.M.P. visit in January 1995, she and her husband discussed what took place at Karlsruhe in 1953 to try to remember together that occasion. That is a normal circumstance, but the result is that her evidence is not that of an independent witness.

[137] Mr. Peter Bufe was the last witness to appear at the hearing of these proceedings. Unknown to, and not knowing Mr. Oberlander, he had come forward after learning of these proceedings because he claimed that he too had been admitted to Canada, without any inquiry about his wartime activities, upon his application from within West Germany, as it then was.

[138] Following domestic service after arriving in Canada Mr. Bufe went on to a career in management and management accounting including five years working in the United States, and he was retired at the time of the hearing in this proceeding.

[139] Mr. Bufe testified that he was a native of the former East Germany, born in 1927. While a student in secondary school he, with his whole class, was drafted into the Luftwaffe, the air force, as assistants or auxiliaries in September 1943. They continued with their studies and some training until December 1944, and thereafter he served with the Luftwaffe from January to May in 1945. When the war ended he attempted to get home but while en route he was captured by American troops and held in a P.O.W. camp at Babenhausen, Germany. He was issued a certificate of discharge from the Luftwaffe on his release from that camp, he believes in August 1945. He then spent until May 1946 with his mother and sisters who had managed to evacuate from their home to a farm in Bavaria.

[140] Thereafter, until he came to Canada he served as a civilian staff worker with American forces at Landshut, in Bavaria, first as an interpreter, then as a caretaker of property confiscated by the U.S. army, then as an administrative assistant to special services of the U.S. army at Landshut. Mr. Bufe's wife, originally from Berlin, whom he married after the war, also worked for the U.S. army at Landshut and, her last job there was as a librarian. They could see no long-term future working with the U.S. forces in Germany, and both felt no strong ties to Bavaria. He and his wife decided to apply to immigrate to Canada at the same time as his twin brother and certain friends.

[141] Mr. Bufe recalls applying to immigrate to Canada with his wife and the others, he believes in late 1951 or early 1952. He has no recollection of the application form but he does remember getting letters of recommendation and police certificates that were to be sent in with his application.

[142] Mr. Bufe and his wife were invited to Karlsruhe for an interview, which he believes was scheduled in June 1952 from the date on certain photographs of the occasion, which was the only time they visited Karlsruhe. He recalls taking his passport, which included his wife as well as himself, their chest x-rays and letters from the army headquarters where they were both employed. He does not recall much about the manner in which their applications were considered. He does recall a brief interview, 10 to 15 minutes, by a very friendly man, remembered because of the way the interview went. Noting their employment by U.S. forces in Germany, he asked if they were thinking of using Canada as a stepping stone to the United States. That purpose Bufe says he denied. Rather, he said their intent was to emigrate to Canada, not to the U.S., because they had worked for many years with Americans.

[143] The immigration officer then said he had received news from Ottawa that because of economic conditions in Canada immigration was suspended except for farm workers and domestics. He then said that the Bufes appeared to be a very domestic couple and asked if they agreed, which they did, and they were then approved to be admitted to Canada as domestic workers, as is indicated by notation with their visa in their passport. Bufe's recollection is that following the interview they were asked to leave their passport and sometime later it was checked and clearance and a visa granted. The passport includes two dates, possibly for approval: August 6, 1952 and February 20, 1953, which Bufe cannot explain. He believes the reason for delay in the process, from interview in June 1952 as he remembers it, to departure and arrival in Canada in May 1953, had something to do with the immigration process, and was not of their doing.

[144] Mr. Bufe's recollection is that they were interviewed only by one gentleman who asked him no questions about his wartime activities.

[145] While Mr. Bufe did not purport to recall full details of the manner in which his application was dealt with at Karlsruhe, insofar as he recalls one interviewing officer, who asked no questions about his wartime activities, and who obviously assisted their goal of coming to Canada it does reflect, at least in part, the story of the Oberlanders when interviewed one year or so later in August 1953. There are, of course, differences in the backgrounds of the two men. Bufe's wartime service career was with the Luftwaffe, for a few months in 1945. He was a native of Germany, though his home was in what became East Germany after the war. At the time of his application he had been working for five or six years for the U.S. Army at Landshut. That might explain different determinations if each had been considered by a security officer apprised of their histories. Each claims, however, that he was not interviewed or queried about his wartime activities.

[146] In my opinion, with respect for Mr. Bufe, I put no weight in his recollection of the process in considering his application when he was interviewed at Karlsruhe. First, it provides no direct evidence of the process followed a year or more later when Mr. Oberlander was interviewed. Second, my conclusion is that Mr. Bufe's recollection of the process is incomplete. He recalled handing over x-rays on arrival and then going for an interview "with a very nice gentleman" that lasted 10-15 minutes. And he said "... the only reason I can remember at all is because of the way the interview went". He explained that remembrance by reference to the interviewer's query about his intention to stay in Canada and the indication that if they were prepared to serve as domestics they could be accepted at that time. That happened and the Bufes' application was accepted with an entry underneath the visa stamp in their passport, "domestic couple".⁷⁵

[147] Mr. Bufe has no recollection of any medical examination. By reason of the date on certain photographs he believes the interview at Karlsruhe was in June 1952. His passport from that time bears two national health stamps, for August 6, 1952 and February 20, 1953. He has no explanation for the two stamps and on reflection his explanation is that after their interview they were asked to leave their passport at Karlsruhe and some time after they were there in June "they checked out our medical and chest x-rays and gave us a clearance". He does not recall getting a second set of x-rays and is sure that they went to Karlsruhe only once, in June 1952 as he reconstructed the time from old photos. He has no explanation why his visa was not issued in June 1952, though he says he did not expect to get it on the occasion of their interviews. He does not remember how he got his passport with the visa stamped and dated February 20, 1953.⁷⁶

[148] Mr. Bufe's recollection does not reflect the process that I have found was established at Karlsruhe for dealing with applicants seeking to come to Canada. He recalls no interview which raised any questions about his wartime activities, thus he has no recollection of any security screening interview. Moreover, he has no recollection of a medical examination. Under the process established, an immigration officer would not have interviewed him until a security officer had noted that he had or had not passed Stage B, and a medical officer had examined him and his x-rays. There is no suggestion from any other evidence than Mr. Bufe's that medical approval might be given without an examination by a medical officer.

[149] I conclude that Mr. Bufe's evidence of the process followed when he was interviewed at Karlsruhe simply cannot be the full description of that process followed in his case. His evidence of the process applied at Karlsruhe when he was interviewed, in my view, is not reliable in regard to the whole of that process. Thus, it is of no weight in assessing the process followed in the case of Mr. Oberlander.

Mr. Oberlander's evidence

[150] The story here set out of Mr. Oberlander's activities until the end of the war, when he was only 21, comes from his testimony based on his memory and upon reconstruction or recollections after examining the substantial volume of documents produced by the applicant. Perhaps it is not surprising that with the passage of time from the events of World War II, now up to 60 years ago and with advancing age, his recollection of those events has not been consistent. His recollections, as revealed in his testimony, are selective.

[151] I conclude, after careful review of the record, that his testimony is not credible at least in regard to the process of interviews that he had at Karlsruhe on August 14, 1953. In the final analysis I simply do not believe his evidence on this key issue.

[152] I so conclude because there are many inconsistencies or implausibilities in his recollection of past events and circumstances on different occasions and because I conclude that on some other occasions he has avoided revealing his involvement in events. I review a number of the major inconsistencies and implausibilities and the occasions that give rise, in my view, to serious doubt about the reliability of his evidence on the key issue in this case.

[153] In this hearing Mr. Oberlander testified that he did not know the term Einsatzkommando 10a until he was interviewed and signed a statement for German authorities in Toronto in 1970. In that statement he sets out that the unit he was assigned to had no name or at least he knew no name. In the statement he said that Sonderkommando and Einsatazkommando 10a, and Einsatzgruppe D were unknown to him. He repeated that with reference to Sk and Ek 10a in the same statement, adding that as far as he knew his unit did not have that name. In this hearing, he says the unit was referred to as "SD". Mr. Huebert stated he knew the unit to be Sk 10a and he learned of its role in executions, while he was at Taganrog, Mr. Siderenko, who spoke Russian, not German, learned the name Ek 10a after the war when he was interrogated by the NKVD, but he knew of its role in execution of Jews soon after his service commenced at Novorossiysk. Mr. Oberlander was comparatively well educated for his time, one of his tasks was to interpret orders and directions for Russian guards. When in Taganrog in 1942 the interpreters were across the hall from the German police officers, and their commander, the "chief", was accommodated at the end of the hallway, in a school building.

[154] There is, among documents submitted by the Minister, a copy with English translation of a "Kommando (squad) Order"⁷⁷, marked, apparently by a stamp, "kommando 10a" and dated "Local quarters. 31.x.1942" which sets out orders for individuals to prepare for an operation against bands of partisans in the Novorossiysk area, and among individual interpreters named in that order to join the operation is one interpreter "Oberländer". The umlaut over the "a" in the name, was perhaps reflected in Mr. Oberlander's comment in his 1970 statement to German authorities that he once met "a man called 'Oberländer' in my unit". While this matter was raised in cross-examination, I am not persuaded that there was such a person. Whether that is the case is not important. The order assigning people to duties is a typical military-unit order and Mr. Oberlander must have seen unit orders of this sort on numerous occasions.

[155] It is highly implausible, even if there were no unit identification on vehicles or paraphernalia of the unit, that Mr. Oberlander did not know before 1970 of the unit's name as Ek 10a or Sk 10a.

[156] It is implausible also that he did not recall the names of the commanders of the unit with which he served, for a year and a half by his admission, or about two years as the Minister contends, until he was asked about those names when interviewed by German authorities, in 1970. He may have forgotten the names, as he himself acknowledges in his 1970 statement. Mr. Huebert had not forgotten the commanders' names, and one at least, Seetzen, had appeared each morning when the unit was turned out for directions. Mr. Oberlander himself remembered that at Taganrog the commander, whom he referred to as "chief", was in quarters at the end of the hallway beside which the interpreters were located.

[157] At the hearing in these proceedings Mr. Oberlander had no recollection of Mr. Huebert or Mr. Siderenko, or of any of the incidents each recalled when he was said to have been involved. I note that Mr. Siderenko testified in Kitchener when Mr. Oberlander was present, but the latter was not present when Mr. Huebert testified in Vancouver. In my opinion both Messrs. Huebert and Siderenko were credible witnesses whose testimony assisted the Court. Each described his own duties with Ek 10a in a manner that I accept as establishing their own service as auxiliaries with Ek or Sk 10a. Huebert believes he and Oberlander were the only Volkdeutsche from their region of Ukraine. Mr. Oberlander does not recall meeting Mr. Huebert when the latter says they first met at Halbstadt on the day when the respondent was taken from his home to serve as an interpreter, and he testified that he has no recollection of Huebert, although Mr. Oberlander's 1970 statement refers to his own employment at the unit's vehicle pool in procurement of spare parts and gasoline and in communicating with Russian drivers. One of Mr. Oberlander's duties was conveying orders to Russian guards about their tasks, yet he has no recollection of Mr. Siderenko or of the incidents Mr. Siderenko recalled, when Mr. Oberlander's work as an interpreter was recalled in favourable light.

[158] He did not believe that Mr. Huebert's tale of a leave taken and driving by motorcycle with him, to Ladekopp and Mr. Oberlander going on to Halbstadt by himself, was true. At this hearing he denied he had returned to Halbstadt after he was taken off to serve as an interpreter. That position was apparently based on his belief, in recollections of his family, that he left home only a month or so before his mother departed from Halbstadt in March 1942 and he had no reason to return after she had gone. Yet in his 1970 statement to German authorities he states that he went on leave several times and once visited his family at Halbstadt.

[159] In his 1970 statement Mr. Oberlander says he no longer remembered to which organizations the members of his unit belonged; he did not think they were SS people. At the hearing he explained that the term SS as used in the field referred to the Waffen-SS, and he acknowledged that Germans in the unit were from the SD or other police organizations, and he knew that they were administered from Berlin.

[160] In that 1970 statement he denied he had any medals except for being wounded in action. At the hearing he professed not to remember the award to him of the War Service Cross in early 1943, until the issue was raised by Mr. Huebert who recalled it. The failure to remember in 1970 was explained on the basis that the medal meant nothing to Mr. Oberlander, though at this hearing he acknowledged the receipt of the medal and he could clearly recall it had been awarded for his action in saving two German soldiers wounded in action against a surprise Russian attack at Novorossiysk.

[161] In his statement of 1970 for German authorities he had also said he knew nothing of the execution of Jews or disabled people by his unit, had not observed anything and no one told him about that at the time. At the hearing in cross-examination he acknowledged he did learn of the "resettlement" of Jews first at Taganrog and later at Krasnodar, professing that he did not then understand the term resettlement but acknowledging that he later learned it meant execution. Further, at this hearing he referred to the work of an advance party of his unit moving into Novorossiysk and looking after the settlement of the Jews, before he moved there.

[162] We have earlier noted his statement in 1970 denying he knew of an order that every member of a Kommando had to participate in an execution, but when questioned by R.C.M.P. officers in 1995, while denying his own participation, he acknowledged that older men of the unit were required to participate in the executions carried out by Ek 10a.

[163] In his 1970 statement he says he just worked as an interpreter, that he did not do interrogations, and he had no other function. In his cross-examination at this hearing he acknowledged his part in anti-partisan activities starting at Novorossiysk when he was armed with a machine pistol. The interpreter's role then was to question persons detained, and those without valid explanation for their presence or their activities were in trouble.

[164] In discovery Mr. Oberlander stated that when anti-partisan operations in Belarus were winding down in 1943 and he left the radio monitoring task he rejoined his unit Ek 10a or what remained of it and it continued to merge with other units. At the hearing his testimony was that he did not rejoin his former unit, rather he had been absorbed into an army unit and had an army uniform as his new unit continued south to Poland and thence on to Yugoslavia. Dr. Messerschmidt indicated that Ek 10a was merged with a Waffen SS unit before the move to Poland. For the Minister, it was urged that Ek 10a personnel had been merged into Ek 6, when operations against the partisans in Belarus were terminating, largely because of a letter from police authorities recommending him and others for naturalization and because of a recorded change in the field post number for his unit as recorded on papers relating to naturalization of the Oberlander family at Litzmannstadt in April 1944. In my view the differences need not be resolved, about continuing service with the Waffen-SS, the army or with Ek 6. Mr. Oberlander has acknowledged he served as an interpreter with Ek 10a, for many months.

[165] We have already referred to Mr. Oberlander's certificate of discharge, issued in July 1945 when he was released from the British POW camp to work at farm labour. The certificate includes his name, date of birth, his place of birth as "Halbstadt" without reference to Ukraine, his occupation as "Landarbeiter" and his home address as "Burgdorf, Celle, Lüneburg", a place near Hannover, the address of a friend he met in the camp. Questioned about this information in cross-examination Mr. Oberlander's responses are transcribed as follows:⁷⁸

Q. ... And then it says civilian occupation and it says Landarbeiter, which means farm worker.

A. That's it.

Q. You never were a farm worker before, were you?

A. No. I lived on land and had some experience.

Q. You had some experience?

A. Well that's - they told us if you want to volunteer as a farm worker you can go. So I volunteered. So what he typed in didn't care less as long as I get out. I was hungry.

Q. But the question is did you tell them that you were a farm worker, or did they because you wanted to work on a farm concluded that that was your civilian occupation, right? I suggest to you that you told them you were a farm worker so that you can get out?

A. Well they told us if you want - I didn't type this.

Q. I realize.

A. I didn't even know that's in here.

Yet he did sign the certificate, presumably after it was completed by a clerk following questions to him from German officers who were working with British army officers to examine volunteers for farm labour. That certificate specifies his discharge on July 26, 1945 from the "Heer", the army. He does not remember questions he was asked at the time. He remembers that on that occasion he showed the German officers, who were processing applicants, the Holz certificate which identified him as a member of the Holz battalion. That is a typed document, roughly postcard size, which simply says, without any date, in English translation⁷⁹,

Certificate

The noncommissioned officer, Oberlander, Helmut, born on February 15, 1924 in Giesen, is a member of the combat group "Holz"; he has been on duty since April 23, 1945.

The Battalion Leader

(signature)

First Lieutenant and Batl. Leader

[166] That certificate of the Holz Battalion he says was not taken to Karlsruhe. It is the certificate of discharge dated July 26, 1945, certifying his discharge from the army, that Mr. Oberlander took with him on August 14, 1953. I acknowledge that document was kept, along with the Holz certificate, by Mr. Oberlander and was produced for this revocation proceeding by him.

[167] Two other matters are worth mention, both arising from evidence of Inspector Watson concerning the interview at the Oberlander's home in January, 1945. When shown an O.S.8 form for application to migrate to Canada, Mr. Oberlander indicated that he could not remember filling out such a document. In these proceedings, after the applicant's document production, his recollection is clear that he filled out such a form but it did not ask for details about prior addresses or wartime activities since 1938 or 1939, matters specifically included in forms after October 1953.

[168] The second matter concerns his comments during the course of that interview about the processing of his application at Karlsruhe. From Inspector Watson's testimony, Mr. Oberlander commented "...there was a medical. I was asked for my rank. I was asked to raise my arm and to see if I had a tatoo. He raised his arm. He had no tattoo. That was it, five minutes, and he said out." Later, returning to the process at Karlsruhe he referred to an immigration officer asking whether he was in the German army, whether he was "other rank", and what his rank was. He is reported by Inspector Watson to have responded that he was an interpreter, Russian-German, because he was born in Russia. At this hearing he denies that he was asked any questions about his military service or his activities in the war years.

[169] The certainty with which he now recalls that the application form he completed contained no request for detailed information of his addresses and of his military service through the war years, the certainty with which he recalls submitting the certificate of the Holz battalion to examining officers to obtain his discharge from the POW camp in Hannover, the certainty with which he now recalls he had no questions asked about his military service at Karlsruhe, these all contrast with much uncertainty about other events or situations.

[170] One other document of German origin is worth comment. The "Meldebogen" or registration form completed by Mr. Oberlander in 1947 at Korntal shows that he responded "no" to the question "were you ever an enrollee, candidate, a member, a supporting member" of organizations listed, including the SD; that in response to an enquiry for information on membership in the "Wehrmacht (armed forces), police formations", the form, which he completed and signed, designates only "Infantry Regiment 159" with no reference to his services to the SD. That is reflected by his entry of his main occupation in 1943 as "Wehrmacht". At most he might have served in the Wehrmacht for only a few months at the end of 1943, if he were to be believed at trial. In discovery he acknowledged that at that time when his role in listening to radio transmissions ended in Belarus he returned to his unit Ek 10a. He would not have been in the Wehrmacht until 1944. If Mr. Oberlander's answers were responsive in part to the questions asked in the registration form they did not provide the complete picture of the service given by Mr. Oberlander during the wartime years.

[171] Inconsistencies in the manner in which he has recalled events of long ago on different occasions are not surprising. The Court must take the evidence as it finds it. I find that his evidence as it concerns the process followed in Karlsruhe and his recollection that he was interviewed by only one immigration officer who asked no questions about his wartime service, is not credible.

[172] Documents from three previous occasions, his discharge and the certificate⁸⁰ from the British P.O.W. camp an Hannover, the Meldebogen or registration form⁸¹ he completed in 1947 in Korntal, and the statement⁸² describing his wartime service which he signed as his own in Toronto in 1970, in my opinion, demonstrate a pattern of less than full acknowledgement of his wartime role, with no reference to the SD, which he now acknowledges he served, but only as an interpreter.

[173] In addition to the inconsistencies and implausibilities noted, his indication to the R.C.M.P. investigating officers in January 1995 that he had been asked questions about his military service when interviewed at Karlsruhe belies his testimony at trial that he was not asked any such questions then. True, at the hearing he explained this as an error of Inspector Watson in describing the context but the reference to having been asked his rank occurs more than once in the testimony of Inspector Watson, an experienced investigator. His responses to the investigating officers in January 1995 are inconsistent with his testimony at the hearing. So is his evidence at discovery when asked whether he had shown his 1945 certificate of discharge at his interview at Karlsruhe and whether he then was asked any questions about his wartime service. His response at discovery was "I can't remember, I don't think they asked me anything..., I don't know why they would ask. It is so clear here. It's in both languages and it says I was discharged from the army and there wouldn't be any more questions about it".⁸³

[174] Considering his evidence as a whole I do not find that, in this hearing, his evidence about his interview at Karlsruhe is reliable. While it is urged that the recollections of Mr. and Mrs. Oberlander of their interview at Karlsruhe should be accepted, for the occasion was of importance to them, it may simply be that they do not now remember. At all events I do not believe Mr. Oberlander's evidence at the hearing that he was not asked any questions about his wartime years.

The applicable law

[175] Three aspects of the law applicable in this case are raised by counsel. They concern the statutory regime for citizenship and its revocation, the regulatory authority for the rejection criteria and the burden and standard of proof in this case.

[176] These proceedings arise under the Citizenship Act⁸⁴ (the "Act"), in particular, sections 10 and 18, which govern the procedure. In Canada (Secretary of State) v. Luitjens,⁸⁵ Collier J. determined that substantive rights in relation to the acquisition of citizenship are subject to the legislation in force at the time citizenship is acquired, in this case the predecessor of the current Act. This was the Canadian Citizenship Act⁸⁶ (hereinafter sometimes referred to as "the former Act") of 1952, applicable in 1960 when Mr. Oberlander obtained Canadian citizenship.

[177] Section 18 of the current Act provides for the notice of revocation by the Minister and for the basic process which brings this matter before the Court, and paragraph 18(1)(b) establishes the task of the Court, to decide whether, in this case, Mr. Oberlander "has obtained ... citizenship by false representation or fraud or by knowingly concealing material circumstances". Under s. 10 of the Act, the Governor in Council, following receipt of a report from the Minister, if satisfied that a person has obtained citizenship by false representation or fraud or knowingly concealing material circumstances, may order that the person cease to be a citizen. Under s-s. 10(2) a statutory presumption is set out:

10(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.

10(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.

[178] Although there was no equivalent to s-s. 10(2) in the former Act as it applied in 1960, in my opinion s-s. 10(2) simply provides for an evidentiary presumption, a matter of procedure. It is applicable here subject to the Interpretation Act,⁸⁷ s. 44 of which provides:

44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor, ...

44. En cas d'abrogation et de remplacement, les règles suivantes s'appliquent: ...

(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto

(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,

(ii) in the enforcement of rights, existing or accruing under the former enactment, and

(iii) in a proceeding in relation to matters that have happened before the repeal;

d) la procédure établie par le nouveau texte doit être suivie, dans la mesure où l'adaptation en est possible_:

(i) pour le recouvrement des amendes ou pénalités et l'exécution des confiscations imposées sous le régime du texte antérieur,

(ii) pour l'exercice des droits acquis sous le régime du texte antérieur,

(iii) dans toute affaire se rapportant à des faits survenus avant l'abrogation;

[179] In my opinion, the application of s-s. 10(2), which concerns procedure, is provided for under the Interpretation Act, subparagraph 44(d)(iii). The statutory presumption set out by s-s. 10(2) is applicable in this case. Implicitly, that provision as well as the principle in Luitjens concerning substantive rights in the acquisition of citizenship, refer us back to the former Act applying in 1960 in relation to citizenship and to the legislation concerning admission to Canada in 1954 when Mr. Oberlander was admitted to Canada for permanent residence.

[180] Provisions of the former Act, applying in 1960, that are relevant here, are as follows:

2(bb) "Canadian domicile" means Canadian domicile as defined in the laws respecting immigration that are or were in force at the time the Canadian domicile of a person is relevant under this Act.

2(bb) "Domicile canadien" signifie le domicile canadien tel que défeni dans les lois concernant l'immigration qui sont ou qui étaient en vigueur à l'époque où le domicile canadien d'une personne est pertinent aux termes de la présente loi.

10(1) The minister may, in his discretion, grant a certificate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose, and satisfies the Court that ...

10(1) Le Ministre peut, à sa discrétion, accorder un certificat de citoyenneté à toute personne qui n'est pas un citoyen canadien, qui en fait la demande et démontre à la satisfaction du tribunal, ...

c) que le demandeur or la demanderesse

(i) acquired Canadian domicile ...

(i) a acquis un domicile canadien; ...

(d) he is of good character; ...

d) qu'elle a une bonne moralité; ...

19.(1) The Governor in Council may, in his discretion, order that any person other than a natural-born Canadian citizen shall cease to be a Canadian citizen if, upon a report from the Minister, he is satisfied that the said person either ...

19. (1) Le gouverneur en conseil peut, à sa discrétion, ordonner qu'une personne, autre qu'un citoyen canadian de naissance, cesse d'être un citoyen canadien si, sur un rapport du Ministre, il est convaincu que ladite personne ...

(b) has obtained a certificate of naturalization or of Canadian citizenship by false representation or fraud or by concealment of material circumstances;

b) a obtenu un certificat de naturalisation ou de citoyenneté canadienne par fausse déclaration, fraude, ou dissimulation de faits importants;

The latter provision, referred to in the style of cause herein, comparable to s. 18 of the current Act, was applicable in 1960 when Mr. Oberlander was made a Canadian citizen.

[181] The relevant provisions of the Immigration Act⁸⁸ applicable when Mr. Oberlander applied for Canadian citizenship in 1960, as directed by paragraph 2(bb) of the former Citizenship Act are:

2(c) "Canadian domicile" means Canadian domicile acquired and held in accordance with section four; ...	2 c) "domicile canadien" signifie un domicile canadien canadien acquis et détenu conformément à l'article 4; ...
(n) "Landing" means the lawful admission of an immigrant to Canada for permanent residence; ...	n) "réception" signifie l'admission légale d'un immigrant au Canada aux fins de résidence permanente;
4(1) Canadian domicile is acquired for the purposes of this Act by a person having his place of domicile for at least five years in Canada after having been landed in Canada. ...	4(1) Pour l'application de la présente loi, une personne acquiert le domicile canadien en ayant son lieu de domicile au Canada pendant au moins cinq ans, après avoir été reçue dans ce pays. ...

[182] Further, under the Immigration Act, among persons subject to inquiry and possible deportation are any who came into Canada by reason of any false or misleading information, force, stealth or other fraudulent or improper means, whether exercised or given by himself or by any other person.⁸⁹ Every person seeking to come into Canada was directed to first appear before an immigration officer and to answer truthfully all questions put to him by an immigration officer.⁹⁰ To knowingly make any false or misleading statements in connection with admission to Canada or the application for admission by any person⁹¹ was an offence under the act. Moreover, a person who did not comply with any of the conditions or requirements of the Act or Regulations was among those prohibited from being admitted to Canada.⁹²

[183] In sum, to acquire "Canadian domicile" as the former Act required in 1960, an immigrant had to be landed within the meaning of the Immigration Act. That latter requirement was dependant upon lawful admission to Canada for permanent residence.

[184] As for the lawful authority for rejection criteria, in Canada (Minister of Citizenship and Immigration) v. Dueck,⁹³ after reviewing the legislative and regulatory provisions relating to security screening applicable in 1948, Noël J. concluded that at that time there was no legislative or regulatory authority for the application of rejection criteria. The decision in Dueck was filed when this matter was at the stage of closing arguments and counsel thereafter made written submissions about the significance of that decision for this case.

[185] The lawful authority for rejection criteria is 1953 was not an issue between the parties in this case. That may reflect the earlier decision of McKeown J. in Bogutin⁹⁴ where he concluded, in regard to the legal regime applicable in 1951, that Order-in-Council P.C. 2856 of 9 June 1950 provided a lawful basis for the Minister to admit persons not excluded by the Immigration Act or regulations, in accord with that act as then in force. In subsequent cases, Katriuk⁹⁵ and Kisluk⁹⁶ my colleagues Nadon J. and Lutfy J. (now A.C.J.) respectively, reached conclusions that the legislative basis for security screening arrangements was established for the years there in question; in Katriuk in 1951, and in Kisluk in 1948. In this case no question arises about the authority for the security rejection criteria approved by the Security Panel. An issue was raised in this case about the validity of the reasons for rejection set out by Mr. Kelly in London which he circulated to security officers in Europe who applied those from early 1953. I have found the Kelly statement to be one for guidance of those who reported to him, a statement intended to be and implicitly accepted as a reasonable interpretation of the modification made by the Security Panel in May 1952.

[186] As for the burden of proof, it rests with the applicant. Counsel for the applicant suggested that as in other cases the burden may shift, but that simply relates to the evidentiary burden which implies that the defendant may be unwise not to adduce some evidence in response to the case of the applicant. Ultimately, in this case, the overall burden of proof is the applicant Minister's.

[187] As to the standard of proof, McKeown J. in Bogutin⁹⁷ set out the standard, which has now been accepted⁹⁸ in the following terms: "I apply the civil standard of proof on a balance of probabilities but I must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered." That standard I endorse and here have applied.

[188] I turn now to a summary of my findings of fact on the evidence here adduced.

Summary of findings of fact

[189] The respondent, Helmut Oberlander, was born at Halbstadt (a.k.a. Molochansk), Ukraine, on February 15, 1924. He and his family were Volksdeutsch whose forbears settled at Halbstadt some 250 years ago.

[190] In 1941, at 17 years of age, he had completed secondary school and he was fluent in German and Russian. In September or the beginning of October when German troops arrived at Halbstadt, he and his family were freed from a holding camp where they had been detained by Russians. He was later directed to assist in registration of Volksdeutsch in the area and to assist in repairing buildings and roads in the town.

[191] In October 1941, or as Mr. Oberlander states in February 1942, he was ordered by local authorities to report to German occupying forces to serve as an interpreter. He did so, he says, not voluntarily by free choice, but in fear of harm if he refused.

[192] He was assigned to Einsatzkommando 10a ("Ek 10a"), sometimes also known as Sonderkommando 10a, a German police unit of the Sicherheitspolizei (Sipo) and Sicherheitsdienst (SD). Both those organizations were security police forces of the Schutzstaffell (SS), which directed their operations from Berlin. The kommando unit included some members from other German police forces and a number of auxiliary personnel, including interpreters, drivers, and guards, from among Volksdeutsch or Russian prisoners of war.

[193] Ek 10a was one of the squads of Einsatzgruppe D ("EG D"), which in turn was one of four Einsatzgruppen, designated A, B, C and D. These were special police task forces operating behind the German army's front line in the eastern occupied territories in the years 1941-1944, to further the objectives of Nazi Germany. Among their roles they operated as mobile killing units and it is estimated that the Einsatzgruppen and the Security Police were responsible for the execution of more than two million people, mostly civilians, primarily Jews and communists, and also Gypsies, handicapped and others considered unacceptable for Nazi Germany's interests.⁹⁹ The SS and the SD, largely because of their activities in eastern occupied territories, were declared to be criminal organizations in 1946, by decision of the International Military Tribunal and Article II of Control Council Law No. 10. In subsequent trials before the Nuremberg Military Tribunals in 1949 the former commander of EG D, Ohlendorf, was convicted of war crimes, crimes against humanity, and membership in a criminal organization, the SS.

[194] The respondent was not a member of the SD or Sipo, though he wore the uniform of the SD from the summer of 1942 until Ek 10a was merged with army units in late 1943 or 1944. In some documents of that era Mr. Oberlander is described as "SS-mann", but that description and the uniform are not determinative of formal membership in the SD or the SS. German citizenship requirements precluded membership in the SD or Sipo.

[195] He was, however, a member of Ek 10a, as the applicant Minister alleged in the Notice of Revocation. He served as an auxiliary, as an interpreter for the SD, as he admits, 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.

[196] With Ek 10a he was moved through eastern Ukraine to Melitipol, Mariapol, and Taganrog, thence to Rostov and south to Krasnodar and Novorossiysk. There the unit, and the respondent, were engaged in anti-partisan missions, as they later were in the Crimea and in Belarus, and as he was, still later, in Poland and Yugoslavia.

[197] There is no evidence that the respondent participated in any of the atrocities committed against civilians by Ek 10a. His testimony that he did not know the name of the unit until 1970 is not credible, i.e., it is not worthy of belief, nor is his claim that he only came to know of Ek 10a action against Jews, that is, their "resettlement", which he learned meant execution, when he was at Krasnodar and Novorossiysk in the fall of 1942.

[198] From Belarus, in late 1943 or early 1944, the respondent moved with German forces south to Poland where he was wounded. He became a naturalized German citizen, with his mother and his sister, at Litzmannstadt, in April 1944. From Poland later that year the army group he was then with moved to Yugoslavia and he was there engaged in anti-partisan activities. With Russian troops advancing he was moved to Torgau, a town south of Berlin, to assist in defence of the German capital. As the war was ending he and others moved west to surrender to American forces and then marched westward again, to Hannover, where he was in a British P.O.W. camp from May to July, 1945.

[199] He was released from that camp to be engaged in farm labour and on his release a certificate of discharge was completed indicating his discharge from the German army. Thereafter he continued to reside in then West Germany at Hannover and later at Korntal where he was reunited with his family, and where he and Mrs. Oberlander met and were married in 1950.

[200] Mr. Oberlander and his wife applied to be accepted as immigrants to Canada in April 1952. The application, completed by Mr. Oberlander, was made by completing an O.S.8 form which at that time included no specific request for information about activities of the applicant through the years of World War II.

[201] When they made application to immigrate there was an established process for considering applicants and I find that this was established at Karlsruhe, the centre for Canadian immigration in West Germany, at the times relevant for their application. That process required, after receipt of an application form, that there be security screening by an R.C.M.P. officer, medical examination by a doctor, and examination by a visa (immigration) officer to ensure that all requirements of the then applicable Immigration Act were met, including security screening, health requirements and the civil requirements and then current labour market categories for immigrants.

[202] Security screening in 1952-53 began with the security officer circulating to police and intelligence sources information drawn from the application of an individual, seeking any information available about the individual. When responses were received the applicant was invited to Karlsruhe to be interviewed, bringing designated documents, including x-rays, passport, and military discharge certificates.

[203] The established process provided that applicants appearing for interview would be first seen in a face to face interview by the security officer whose principal attention was directed to the background and experience of the applicant, his or her origin, former addresses, employment and military or other service over a decade and including the years of World War II. If that detail was not provided by the application form it would be sought at the interview, since the security officer's task was to assess whether or not the applicant should be rejected in accord with criteria established, originally by the R.C.M.P. and later modified by the Security Panel, a group of senior public servants, which coordinated security practices and provided support to a committee of Cabinet at Ottawa.

[204] At the conclusion of an interview the decision of the security officer was marked on the application file as "passed" or "not passed" stage B. If he had any doubt whether the applicant was among those who should be rejected the security officer rejected him or her, in the interests of Canada. That decision was final, not subject to review by a visa officer or anyone else. No reasons were given. The applicant was not informed of that decision. He or she was passed on for medical examination and then for interview by the visa officer, who alone advised the applicant whether or not he was considered to have met requirements for immigration, and, if not, no further explanation was offered that would reflect the security officer's decision.

[205] Only the visa officer could issue to successful applicants a visa for presentation to a port of entry officer in Canada, to be admitted for landing. Visa officers did not process a file, or interview an applicant until after the security officer had completed his assessment.

[206] I find Mr. Oberlander's evidence that he was not asked any questions about his wartime experience is not credible. Evidence of Mrs. Oberlander supportive of Mr. Oberlander on this key issue, I do not consider of any weight because it is not from an independent witness. Evidence of Mr. Bufe, that he was not asked about his wartime service at Karlsruhe in 1952, I do not consider of any weight since, in my view, it is not reliable.

[207] I find on the balance of probabilities that the established process at Karlsruhe for dealing with applicants for immigration to Canada was in operation on August 14, 1953 when Mr. and Mrs. Oberlander appeared for interview in relation to their application. I find that he was interviewed by a security officer and on the balance of probabilities he was asked questions about his background, including questions concerning his origin in the Ukraine, which was evident from his passport, how he came to Germany, his previous addresses and his military or other service in the war years, questions which were key to the security officer's decision.

[208] He was required to answer truthfully questions put to him. I find that if Mr. Oberlander had answered questions truthfully, including his experience as an interpreter with Ek 10a for the SD, an organization determined in 1946 to be criminal, his application would have been rejected, either because he would have been perceived to be a member of the SD, even if he were not, or because he would have been perceived as a collaborator. Either perception was a reason for rejection on security grounds. If the security officer had any doubt about whether he should be rejected Mr. Oberlander would have been rejected and he would not have passed stage B. That decision was not subject to review.

[209] That did not happen. He was not rejected, rather he was interviewed by a visa officer who approved his application, and later in February 1954 he was issued a visa. Using that he was admitted to Canada in May 1954 as a landed immigrant.

[210] I find no visa would have issued unless a security officer had indicated, following his interview with Mr. Oberlander that he had "passed stage B", i.e. that he was cleared for security purposes. I find, on the balance of probabilities that clearance would only have issued if Mr. Oberlander misrepresented or did not disclose his wartime experience with Ek 10a. I find, on the balance of probabilities, that he falsely represented his background or knowingly concealed material circumstances when interviewed by a security officer. Thus, I find that thereafter he was admitted to Canada for permanent residence on the basis of the visa issued at Karlsruhe, and that admission was gained by false representation or knowingly concealing material circumstances.

Conclusion

[211] This Court finds, on the balance of probabilities, weighing the evidence carefully, that the respondent Helmut Oberlander, was admitted to Canada for permanent residence in 1954 on the basis of a visa obtained by reason of false representation or by knowingly concealing material circumstances. Subsequently he was granted citizenship in 1960.

[212] I find that Mr. Oberlander was not lawfully admitted to Canada for permanent residence and thus he was not landed and did not thereafter acquire Canadian domicile, all pursuant to the Immigration Act as it applied when he came to Canada. Subsequently he obtained citizenship in 1960 when he prepresented, falsely, that he had acquired Canadian domicile. Thus he obtained Canadian citizenship by false representation.

[213] In the alternative, if he were considered as lawfully admitted to Canada for permanent residence I find that was by reason of false representation or by knowingly concealing material circumstances. Because of that admission, he subsequently obtained citizenship. Pursuant to s-s. 10(2) of the Citizenship Act he is deemed to have obtained Canadian citizenship by false representation or by knowingly concealing material circumstances.

[214] In the result, I find that the respondent, Helmut Oberlander, obtained citizenship in Canada by false representation or by knowingly concealing material circumstances within the meaning of s-s. 18(1) of the Citizenship Act. A decision to that effect is now issued.

_____________________________

JUDGE

OTTAWA, Ontario

February 28, 2000.

Schedule to Reasons T-866-95

The Citizenship Act, R.S.C. 1985, c. C-29 provides, in part:

10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,

10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée_:

(a) the person ceases to be a citizen, or

a) soit perd sa citoyenneté; ...

(b) the renunciation of citizenship by the person shall be deemed to have had no effect,

b) soit est réputé ne pas avoir répudié sa citoyenneté.

as of such date as may be fixed by order of the Governor in Council with respect thereto.

(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.

(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.

18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and

18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée_:

(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or

a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour;

(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.

b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.

(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.

(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.

(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.

(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.

The Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended to 1960, provides, in part:

2(bb) "Canadian domicile" means Canadian domicile as defined in the laws respecting immigration that are or were in force at the time the Canadian domicile of a person is relevant under this Act.

10(1) The minister may, in his discretion, grant a certificate of citizenship to any person who is not a Canadian citizen and who makes application for that purpose, and satisfies the Court that ...

c) que le demandeur or la demanderesse

(i) acquired Canadian domicile ...

(i) a acquis un domicile canadien; ...

(d) he is of good character; ...

d) qu'elle a une bonne moralité; ...

(b) has obtained a certificate of naturalization or of Canadian citizenship by false representation or fraud or by concealment of material circumstances;

b) a obtenu un certificat de naturalisation ou de citoyenneté canadienne par fausse déclaration, fraude, ou dissimulation de faits importants;

The Immigration Act, R.S.C. 1952, c. 325, as amended to 1954, provides, in part:

2(c) "Canadian domicile" means Canadian domicile acquired and held in accordance with section four; ...

2 c) "domicile canadien" signifie un domicile canadien canadien acquis et détenu conformément à l'article 4; ...

(n) "Landing" means the lawful admission of an immigrant to Canada for permanent residence; ...

n) "réception" signifie l'admission légale d'un immigrant au Canada aux fins de résidence permanente;

4(1) Canadian domicile is acquired for the purposes of this Act by a person having his place of domicile for at least five years in Canada after having been landed in Canada. ...

4(1) Pour l'application de la présente loi, une personne acquiert le domicile canadien en ayant son lieu de domicile au Canada pendant au moins cinq ans, après avoir été reçue dans ce pays. ...

__________________

¹ R.S.C. 1985, c. C-29, as amended.

² R.S.C. 1952, c. 33 as amended. The statutory provisions mainly relied upon by the Minister, so far as those are relevant in this case, are included in the Schedule to these Reasons.

³ Notice in Respect of Revocation of Citizenship, dated January 27, 1995 to Helmut Oberlander from the Registrar of Canadian Citizenship.

⁴ The procedure pursuant to Rule 920 of the old Rules (CRC 1978, c. 663) has been replaced by the Federal Court Rules, 1998 (SOR/98-106), which became effective on April 25, 1998. These Rules now provide by Rule 169(a) that a reference under s. 18 of the Citizenship Act shall proceed as an action pursuant to Part 4 of the Rules.

⁵ Canada (Minister of Citizenship and Immigration) v. Tobiass, [1996] 2 F.C. 729, 116 F.T.R. 69 (T.D.).

⁶ Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 1 F.C. 828, 142 D.L.R. (4th) 270, 208 N.R. 21 (F.C.A.).

⁷ Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 10 C.R. (5th) 163, 118 C.C.C. (3d) 443, 151 D.L.R. (4th) 119, 218 N.R. 81.

⁸ Noël J., in characterizing these proceedings as civil, relied upon Canada v. Tobiass et al., supra, note 7, and also upon Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493, 140 F.T.R. 183 (T.D.); Canada (Secretary of State) v. Luitjens (1993), 142 N.R. 173 (F.C.A.); Canada (Secretary of State) v. Delezos, [1989] 1 F.C. 297 (F.C.T.D.).

⁹ Canada (Secretary of State) v. Luitjens, supra, note 8, approved, Canada (Minister of Citizenship and Immigration) v. Tobiass et al., supra, note 7, [1997] 3 S.C.R. at 412.

¹⁰ The Act , s-s. 18(3).

¹¹ Einsatzkommando 10a ("Ek 10a"), sometimes also known as Sonderkommando 10a ("Sk 10a"), was one of five similar units, special operational task squads, within Einsatzgruppe D, which in turn was one of four special police units (A,B,C, and D), operating in eastern German occupied territories behind the Wehrmacht's front lines.

¹² Case files on which there was no activity for two years or longer were said to have been destroyed under general government policy applicable from at least the early 1950's. Transcript, Vol. III, p. 215 (evidence of J.A.W. Gunn).

¹³ Exhibit A-4-103.

¹⁴ As spelled on map of Ukraine, Map Link, Santa Barbara, CA, USA (1997). Also sometimes spelled Molotschansk.

¹⁵ Other forces than the Army, e.g., the police units, which relied on local auxiliaries to support their work, did enlist or direct, Volksdeutsche or others, to serve with them.

¹⁶ Transcript, Vol. VIII, pp. 986, 989-994, 1022-26 (testimony of Huebert); Vol. VI, pp. 884, 886-893, 899-900 (testimony of Siderenko).

¹⁷ Transcript, Vol. IX, pp. 1288, 1300 (from discovery) and Vol. XI, p. 1577, Vol. XII, pp. 1738, 1745-48 (testimony of Mr. Oberlander).

¹⁸ R.S.C. 1985, c. C-5, s. 30.

¹⁹ Mr. Siderenko's evidence of his detention, interrogation, and accompanying physical abuse, by the Russian NKVD in 1945 and in 1948, in regard to his service with German forces (Transcript, Vol. VI, pp. 911-914), illustrates why reports from interrogations, the circumstances of which are not in evidence, cannot be accepted as reliable evidence.

²⁰ See generally the Expert Report of Dr. M. Messerschmidt, Exhibit A-7-18, pp. 2-4, 24-26.

²¹ Idem, p. 5.

²² Idem, p. 6.

²³ Idem, p. 21.

²⁴ Idem, p. 33-34.

²⁵ Idem, p. 33.

²⁶ Idem, p. 34. Estimates of victims, made by German judicial authorities after the war for other centres where Ek 10a served, are said to be: Melitopol 2000, Berdjansk 1000, Mariupol 8000, Taganrog 1500, and Rostov 2000.

²⁷ Idem, p. 43.

²⁸ See para. 9 of the Respondent's Reply to the Applicant's Summary of Facts and Evidence, January 13, 1998 which includes the acknowledgement that "On occasion, he was asked to interpret when persons were questioned as to their documents and activities".

²⁹ As reported, Trial of the Major War Criminals before the Nuremberg Military Tribunals, under Control Council Laws, No. 10, Vol. IV, October 1946 - April 1949 at p. 411.

³⁰ Exhibit A-3-53.

³¹ Exhibit A-3-39.

³² Exhibits A-3-34, A-3-38, A-3-39.

³³ Transcript, Vol. IV, p. 664, Vol. V, p. 679.

³⁴ Transcript, Vol. IV, p. 664.

³⁵ Transcript, Vol. XI, p. 1552.

³⁶ Transcript, Vol. XII, pp. 1714-18, 1745-1748.

³⁷ Exhibit A-6-6.

³⁸ Transcript, Vol. XII, p. 1849-51.

³⁹ Supra, note 13.

⁴⁰ Exhibit A-4-104.

⁴¹ Exhibit A-4-105.

⁴² Exhibit A-3-54.

⁴³ Transcript, Vol. XII, pp. 1737-1738, 1744-45.

⁴⁴ Exhibit A-3-54, p. 7.

⁴⁵ Transcript, Vol. IX, pp. 1226, 1228, 1232-1233.

⁴⁶ Transcript, Vol. XIII, pp. 1953-1954.

⁴⁷ Transcript, Vol. IX, p. 1229.

⁴⁸ Transcript, Vol. XIII, p. 1902.

⁴⁹ Exhibit A-6-4. The history of immigration policy and security screening is traced in detail by Mr. Justice Noël in Canada (Minister of Citizenship and Immigration) v. Dueck, [1999] 3 F.C. 203, by Mr. Justice Nadon in Minister of Citizenship and Immigration v. Katriuk (1999), 156 F.T.R. 161 (T.D.), and by Mr. Justice Lutfy, as he then was, in Minister of Citizenship and Immigration v. Kisluk, [1999] F.C.J. No. 824, 50 Imm.L.R. (2d) 1 (T.D.).

⁵⁰ P.C. 695, 25 March 1931.

⁵¹ R.S.C. 1927, c. 93.

⁵² Hansard, House of Commons Debates, 1 May 1947, p. 2644 as reported in Exhibit A-6-4, Affidavit of Nicholas D'Ombrain at para. 52.

⁵³ P.C. 2856, 9 June 1950.

⁵⁴ P.C. 4364, 14 September 1950.

⁵⁵ Exhibit A-6-4, paras. 82-84.

⁵⁶ Exhibit A-6-4, paras. 69-74.

⁵⁷ Exhibit A-4-85.

⁵⁸ The complete ban against members of the Nazi party was initially removed in 1950 and later more formally provided for by the decision of the Security Panel in May 1952. Exhibit A-6-4, paras. 101, 106.

⁵⁹ Exhibit A-6-4, para. 106.

⁶⁰ Idem., para. 107.

⁶¹ Exhibit R-11.

⁶² Transcript, Vol. II, pp. 285-288.

⁶³ Commission of Inquiry on War Criminals (1985-86).

⁶⁴ Exhibit R-11.

⁶⁵ Supra, note 59.

⁶⁶ Exhibit R-21.

⁶⁷ Exhibit R-11.

⁶⁸ Transcript, Vol. III, pp. 356-357.

⁶⁹ Cabinet Directive No. 14, "Rejection of Immigrants on Security Grounds", 28 October 1949.

⁷⁰ Transcript, Vol. II, pp. 304, 305, 309.

⁷¹ Transcript, Vol. III, p. 368.

⁷² Transcript, Vol. VIII, p. 1144.

⁷³ Transcript, Vol. XI, p. 1608.

⁷⁴ Transcript, Vol. XIII, p. 1918.

⁷⁵ Transcript, Vol. XIII, pp. 2008-2012.

⁷⁶ Transcript, Vol. XIII, pp. 2014-2015 and Exhibit R-33g.

⁷⁷ Exhibit A-4-61.

⁷⁸ Transcript, Vol. XII, pp. 1849, 1950.

⁷⁹ Exhibit A-6-11.

⁸⁰ Exhibit A-6-6.

⁸¹ Exhibit A-6-2.

⁸² Exhibit A-3-54.

⁸³ Transcript, Vol. IX, pp. 1353-1354.

⁸⁴ R.S.C. 1985, c. 29 as amended.

⁸⁵ [1989] 2 F.C. 125 at 133 (T.D.).

⁸⁶ R.S.C. 1952, c. 33 as amended.

⁸⁷ R.S.C. 1985, c. I-21.

⁸⁸ R.S.C. 1952, c. 325, as am.

⁸⁹ Idem., subparagraph 19(1)(e)(viii)

⁹⁰ Idem., s. 20.

⁹¹ Idem., subsection 50(f).

⁹² Idem, paragraph 5(t).

⁹³ [1999] 3 F.C. 203 (T.D.).

⁹⁴ Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.).

⁹⁵ Supra, note 49.

⁹⁶ Supra, note 49.

⁹⁷ Supra, note 94 at para. 113.

⁹⁸ See Katruik , supra, note 49 at para. 38; Kisluk, supra, note 49 at para. 5.

⁹⁹ This estimate, by the International Military Tribunal decision of Oct. 1, 1946 is reported in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946 - April 1949, Vol. IV, p. 412.

Judge Andrew MacKay onHelmut Oberlander

Judge Andrew MacKay
on
Helmut Oberlander