Record (Kitchener-Waterloo) | Jun.04, 2004 | Editorial

Justice is lost in a legal maze

Two starkly divergent stories can be told about the life and times of Helmut Oberlander. In his critics' eyes, the 80-year-old Waterloo retiree should be expelled from Canada without mercy or hesitation because he willingly served a Nazi killing unit that murdered more than 23,000 people in the Second World War, then lied about his past to enter this country.

But his sympathizers tell a tale of a victim. They say Oberlander grew up in Ukraine under the nightmarish rule of Soviet dictator Joseph Stalin before, at the impossibly young age of 17, being forced to act as an interpreter for the invading German forces in 1942. Utterly innocent of any crimes, he migrated to Canada after the war and became a model citizen in this community.

For nine years, the Canadian justice system has struggled to determine not only the truth in the case of Oberlander but the most just way to settle his future. As of this week, the system has failed on both counts. For this, the blame should fall not on the shoulders of the judges and lawyers who stumbled into this legal labyrinth. No, the blame should fall squarely on the federal government which failed to place in this maze a thread of rules and laws strong enough to properly guide the justice system.

Today, the people of Canada should be troubled by the deeply flawed process their government has cobbled together for dealing with war crimes, particularly those from the Second World War. After all, some of the best legal minds in this country are troubled by the system now in place.

Consider that on Monday, three Federal Court of Appeal judges ruled that the federal cabinet had acted unfairly in stripping Oberlander of his citizenship in 2001 because politicians meeting in secret may not have considered his "50 years of irreproachable life'' in Canada. Consider that the judges also ruled that the revocation was suspect 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. Process, what process? This is a complete, confusing mess.

Oberlander and his supporters are celebrating this ruling as a victory. Congratulations may be premature. The government can still make a new case for ousting Oberlander. Obviously, many Canadians, especially survivors of the Holocaust or the families of Holocaust victims, will urge the government to do so.

To be sure, our greatest sympathies lie with these people in their unquenchable quest to make individuals accountable for history's worst atrocities. Yet it must also be acknowledged that Canadian courts have legitimately and repeatedly questioned the fairness of the proceedings against Oberlander and the role politicians played in those proceedings. It is also worth asking whether, at this time nearly 60 years after the war's end, the government can pursue Oberlander with the remotest hope of success.

Canada should be ashamed of its record in pursuing crimes against humanity. The government has never successfully convicted anyone in Canada of a war crime. Moreover, while about 20 citizenship revocation and deportation cases have been launched against people involved in the Second World War -- Oberlander was one of them -- only two people have been removed.

That long-ago war, still so fresh and painful in the minds of millions, thrust many people into a position where they had to make tough moral choices. Some did whatever it took to survive. Others took a stand, and died for it. Most of us, particularly those of us lucky enough to live our lives in the peaceful realm of Canada, will never face such a decision. But what we can do is work together to create a system of justice that deals with suspected war crimes without waiting decades to begin a proceeding, or spending a decade on a single case without finding a resolution. New atrocities have been committed in more recent conflicts, in Rwanda, Bosnia and Sudan. Let us be vigilant and ready to deal with any war criminals from these conflicts who might land on our shores.