Record (Kitchener-Waterloo) | Jun. 02, 2004 | Brian Caldwell

Ruling elates Oberlander

Battle not over, other side warns; Waterloo family looks forward to getting back to normal life

After more than nine years of bitter argument about his past, Helmut Oberlander smiled and talked about his future yesterday.

"I will be able to breathe easier and enjoy life again, lead a normal life,'' he said, buoyed by a court decision to return his Canadian citizenship. "I hope I have a few years to go yet."

Oberlander and his supporters were jubilant after the Federal Court of Appeal ruled this week that a federal cabinet decision stripping him of his citizenship in 2001 was flawed on two fronts.

But while Oberlander, 80, prepared to celebrate victory in his long battle to remain in Canada, a lawyer for the Department of Justice said the controversial case is far from over.

Peter Vita said the government isn't even considering dropping its pursuit of the retired Waterloo developer, as Oberlander's lawyer, Eric Hafemann, suggested.

Instead, Vita said, key officials are reviewing the court ruling to decide whether to seek leave to appeal to the Supreme Court of Canada or to go through the process to strip Oberlander of his citizenship again so he can be deported.

"It doesn't make that much difference," he said of the appeal court decision.

Hafemann scoffed at that response, accusing the government of more bluff and bluster in a case he has repeatedly characterized as a "malicious prosecution."

"That's what I would expect from those people,'' he said. "Obviously they'll say that. They can do all sorts of things I have no control over, but I don't think it's going to happen."

In a unanimous decision written by Justice Robert Decary, a three-judge panel of the appeal court found cabinet didn't show it considered Oberlander's personal circumstances, including "50 years of irreproachable life in Canada," before taking his citizenship away.

The judges also ruled the revocation was flawed because cabinet didn't explain how Oberlander fit a government policy to deport people only if there is evidence of participation or complicity in Second World War crimes, including membership in organizations "with a single, brutal purpose, e.g. a death squad."

Oberlander was found after a key Federal Court hearing in 2000 to have lied about his service an an interpreter with a notorious Nazi unit when he emigrated from Germany in 1954.

There was no evidence he actually participated in war crimes while with the squad, which killed thousands of civilians, mostly Jews, in Ukraine from 1941 to 1943.

Vita called the appeal-court decision "a procedural matter" that allows the government several possible grounds of appeal by a deadline of late August.

But he said a more likely route is referring the matter back to the minister of citizenship and immigration, who could then prepare a report and make another recommendation to cabinet.

Because the case against Oberlander is based on a foundation of fact, Vita said, that option would be the fastest and easiest as long as the errors cited by the appeal court are corrected.

Hafemann, however, said the recent ruling effectively means Oberlander has won because he had no hand in war crimes as a 17-old-year interpreter conscripted against his will.

In addition, he said, the notorious Nazi unit, while undoubtedly responsible for atrocities, also performed other functions in German-occupied territories.

"They're going to lose,'' Hafemann said. "There's no question they'll lose at the end of the day."

In one of the few interviews he has given since he was first targeted by Ottawa in 1995, Oberlander said the fight has taken a terrible toll on his family and siphoned "hundreds of thousands of dollars" in legal fees from his retirement fund.

With his citizenship restored, he said he looks forward to being able to travel abroad again after marking his 50th anniversary in Canada just a few weeks ago.

"They were 41 good years and 9 1/2 bad years,'' he said, at home with his wife, Margret, and daughter, Irene Rooney, in the Waterloo subdivision he helped develop decades ago. "If I didn't have the support of my church, my family and the community, I wouldn't have survived."

Oberlander said the loss of his citizenship made him appreciate how much it means to be Canadian and that he has discussed having his estate continue the fight even if he dies before the case finally ends.

"I didn't want to be remembered as a suspected war criminal,'' he said. "I want to be remembered as the good citizen that I was for 50 years.

"It was all worthwhile to fight it because it's the best citizenship in the world, as far as I'm concerned. I wouldn't let anybody take it away from me. I would be fighting to the death."

Although her father has been on medication for stress and to help him sleep since the legal wrangling began, Rooney said the family never gave up hope they would win a favourable ruling.

"We didn't know when it would come, but we knew justice had to be done one day," she said. "We were going to keep fighting until it was."

With an end to the ordeal now seemingly in sight, the Oberlanders are also considering seeking compensation from the government after legal bills drained about 70 per cent of their retirement savings.

"Since it's spent, we'd like to have it back," Margret Oberlander said. "I can imagine to spend the money for better causes."

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October 1941: German troops occupy Ukraine territory; Oberlander was 17.

February 1942: Oberlander claims this is when he was conscripted to serve as an interpreter for a German death squad -- Einsatzkommando 10a -- that murdered at least 23,000 civilians. The squad is part of the Einsatzgruppen, or special task forces, that were responsible for the killing of millions of civilians, mostly Jews. Canadian war crimes investigators say Oberlander joined in October 1941.

April 1944: While on leave, Oberlander is given German citizenship. He returns to duty in what he claims is a regular army unit.

April 23, 1945: Oberlander is reported to have served in the German army until this date. Just prior to this, his unit surrendered near Berlin.

July 26, 1945: Oberlander is released from a British prisoner of war camp. He does some farm work and then moves to Hanover, Germany.

1947: Oberlander moves to the Stuttgart area to join his mother, sister and grandmother. He marries Margret in 1950.

Aug. 14, 1953: Oberlander and his wife are interviewed about their application to immigrate to Canada.

May 13, 1954: The couple arrive in Quebec City. They later travel to Kitchener and Waterloo.

April 19, 1960: Oberlander is granted Canadian citizenship.

1970: The Regional Court of Munich finds there is insufficient evidence to lay charges against Oberlander over his role in Ek-10a.

December 1986: Canada's Deschenes Commission of Inquiry comes to a similar conclusion but rules he should be stripped of his citizenship for failing to disclose his record with the Ek-10a.

Jan. 25, 1995: Two RCMP officers pay a surprise visit to Oberlander at his Waterloo home where he is grilled for more than two hours about his wartime activities.

Jan. 27, 1995: Ottawa drafts a notice of revocation of citizenship which is personally served on Oberlander at his home on Feb. 4. It alleges he failed to disclose his membership in SD (security service) and Ek-10a and participated "in the execution of civilians."

July 4, 1996: The Federal Court of Canada stays the proceedings -- throws the case out of court -- after revelations of interference by a senior Justice Department official who spoke to a judge. The ruling is later overturned by the appeal division of the court.

Sept. 25, 1997: The Supreme Court of Canada upholds the appeal court decision. It rules the interference "wrong and improper," but not serious enough to warrant a stay.

August 1998: A hearing into the merits of Oberlander's case begins and concludes just before Christmas, with Justice Andrew MacKay reserving his ruling.

Feb. 28, 2000: MacKay releases his decision. He finds there is no evidence Oberlander committed war crimes or that he was a member of the SD, but that he nevertheless failed to disclose his membership in the Ek-10a.

March 28, 2000: A notice is filed with the Federal Court asking for an order to prohibit the cabinet from revoking Oberlander's citizenship. Defence lawyer Eric Hafemann claims he could not have been a member of Ek-10a without, at the same time, belonging to the SD. Hafemann works concurrently on submissions to cabinet, urging it to take no action.

July 12, 2001: Oberlander is stripped of his citizenship by the federal cabinet.

March 2003: Oberlander applies to become a landed immigrant.

August 2003: The Federal Court of Canada says the cabinet acted properly when it stripped Oberlander of his citizenship.

January 2004: Justice Robert Reilly of the Ontario Superior Court of Justice in Kitchener halts the deportation process against Oberlander, saying the cabinet violated Oberlander's right to fundamental justice.

April 10, 2004: The Ontario Superior Court of Justice gives the federal government leave to appeal that ruling.

May 31, 2004: The Federal Court of Appeal overturns the Federal Court ruling, and gives Oberlander back his citizenship.

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