Kitchener-Waterloo Record | 06Jul2007 | Andrew Telegdi
Page A11

Conservatives wrong to press Oberlander issue

PUBLICATION: The Record (Kitchener, Cambridge And Waterloo)
DATE: 2007.07.06

Andrew Telegdi is the Liberal MP for Kitchener Waterloo, and has been deeply involved on immigration and citizenship issues, as well as the controversy surrounding Helmut Oberlander. These are his views.

In revoking the citizenship of Jacob Fast and Helmut Oberlander on May 24, 2007, the Stephen Harper Conservatives broke an election promise, flip-flopped on their long-held position on citizenship revocation, and defied the Federal Court of Appeal, which had restored Oberlander's citizenship on May 31, 2004.

This 2004 court decision was in response to Oberlander's appeal of the revocation of his citizenship by the previous government. He was also challenging the present system, which allows a cabinet committee to revoke a person's citizenship behind closed doors.

The court ruled the government cannot revoke citizenship unless it provides evidence that the person at issue committed war crimes. The unanimous ruling issued by Justice Robert Decary of the Federal Court of Appeal reads: "The Governor-in-Council cannot apply the war criminals policy to a person unless it first satisfies itself, to use the very words of the policy, that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity.' "

Besides restoring Oberlander's citizenship, the ruling specifically and explicitly told the federal government it cannot revoke anybody's citizenship, certainly not Oberlander's, without providing evidence of war crimes.

The Harper government has manifestly defied the unanimous decision of the Federal Court of Appeal. In revoking Oberlander's citizenship a second time, it has defied the rule of law.

Oberlander's treatment by the government for the past 12 years borders on persecution. Every time he successfully defeated the federal government's attempts to revoke his citizenship, they tried a new tactic. Oberlander asked for and was granted a stay of proceeding in his first trial on the grounds of political interference. The court stated in its judgment: "The interest in preserving judicial independence will trump any interest in continuing the proceedings. Even in the absence of an ongoing appearance of injustice, the very severity of the interference with judicial independence could weigh so heavily against any societal interest in continuing the proceedings that the balancing process would not be engaged."

The Federal Court of Appeal reversed the stay of proceedings and it was upheld by the Supreme Court. The previous government persuaded the Supreme Court to order a new trail by falsely claiming it had evidence of Oberlander's involvement in war crimes and crimes against humanity. In its ruling, the Supreme Court stated: " ... The affronts to judicial independence were serious but not so serious as to warrant a stay without balancing the harm to the image of the justice system against the interest of society in seeing alleged war criminals brought to justice. The crimes involved rank among the most heinous in history, and the civilized world's resolve to apply the appropriate sanctions should not be interfered with lightly." The Supreme Court made the government pay for the cost of the appeal because of political interference in the judicial proceedings.

Having presided at the retrial, Justice MacKay of the Federal Court found no evidence to support the government's claim that Oberlander is a war criminal. He ruled, however, that Oberlander had probably attained his citizenship by fraud. On this basis, cabinet revoked his citizenship in July 2001.

In 2004, however, the Federal Court of Appeal reversed the revocation order. The ruling stated, "In face of the express finding by Mr. Justice MacKay that no evidence was presented about any personal involvement of Mr. Oberlander in war crimes, one would expect the Governor in Council to at least explain why, in its view, a policy (no safe haven) which, by its very words applied only to suspected war criminals, applied to someone who served only as an interpreter in the German army."

The test of Oberlander's case was based on the following: Did you tell the truth or did you lie, on a question that was probably not asked during an immigration interview in 1953.

The Liberal government of the day understood and respected the rule of law. It accepted its defeat and left Oberlander alone.

Now, in blatant violation of a Federal Court of Appeal ruling, the Harper government has again revoked Oberlander's citizenship. By this move, the government has put itself above the rule of law and above our constitution. It has become a serious threat to our democratic society in Canada.

Furthermore, the government has reneged on a campaign pledge made to Canadians to reform the current citizenship revocation process.

In 2005, the Standing Committee on Citizenship and Immigration recommended changes to the Citizenship Act that would have made the revocation process a judicial one instead of a political one that allows the government to act in such an arbitrary manner. All four Conservative members of the committee supported these changes.

In the spring of 2005, the House of Commons unanimously adopted the report of the standing committee on citizenship and immigration. The Liberal government, before it was defeated in 2005, was on the verge of tabling legislation to change the Citizenship Act in order to make revocation a totally judicial process free of political interference.

Once he became prime minister, Harper no longer considered citizenship and immigration an important issue. Instead of appointing Diane Ablonczy, the most able and longtime Conservative critic on citizenship and immigration issues, Harper kept her off the committee. In less than a year, Harper has appointed two inexperienced ministers to this critical portfolio. Of its five Conservative members, only one had previous experience on the citizenship and immigration committee.

Clearly, Harper did not want experienced Conservative members who had previously supported the committee's work embarrassing him while he broke an election promise to make citizenship revocation a totally judicial process free of political interference.

While they were in opposition, Conservative members rightfully railed against a draconian citizenship revocation process that allowed politicians the power to strip citizenship from anyone not born in Canada, behind closed doors.

Ablonczy, the Conservative MP from Calgary--Nosehill who is currently parliamentary secretary to the minister of finance, said in October 2004, " ... the Conservative Party of Canada will absolutely oppose the revocation of citizenship by politicians behind closed doors and will oppose citizenship being denied on any vague and unidentified grounds. We will uphold Canadian values of due process and certainty in the law. (The) Charter of Rights and Freedoms should apply to all citizens of Canada, regardless of whether those citizens were born in Canada or they came to Canada later on in life."

In February 2005, she said: " ... It's very clear that there is something very wrong with an act that purports to strip citizens of their citizenship behind closed doors by a few people who also have political considerations guiding their decisions. ... If we're going to strip someone of citizenship, it must be by the highest standard of due process and the highest burden of proof beyond a reasonable doubt."

Inky Mark, the Conservative MP from Dauphin--Swan River, and his party's former citizenship critic, said in April 2005: " ... We have to take it (citizenship revocation) out of the political arena; if we trust and have faith in our judicial system and procedures, then that's where we should go."

The first Citizenship Act was enacted in 1947. Parts of it are still operational. Both the 1947 and 1977 Citizenship Act preceded the Charter of Rights and Freedoms, enacted in 1982, and courts have since ruled that these citizenship acts are not charter compliant. The previous Liberal government allocated $20 million for a new Citizenship Act. The Conservative government declared that updating the Citizenship Act was not a priority and eliminated the funding.

We have a deeply flawed Citizenship Act. Besides allowing for politicization of citizenship revocation, the act denies citizenship to hundreds of thousands of Canadians: war brides, children of war brides, border babies, people born out of wedlock, and lost Canadians. Similarly affected are people whose Canadian forefathers had a church wedding offshore but failed to have a civil ceremony. As a result, their offspring have been considered to be born out of wedlock and therefore, not eligible for Canadian citizenship.

Instead of updating an archaic Citizenship Act, the Conservatives are wasting millions of taxpayers' dollars to fight court decisions that state the government must comply with the charter.

Instead of fighting endless court cases it cannot win, the Conservative government should keep its promises and change the provisions of the Citizenship Act to allow for a completely judicial citizenship revocation process free from political interference. The government can use, as its guide, the recommendations of the October 2005 report of the standing committee on citizenship and immigration titled, Updating Canada's Citizenship Laws: It's Time.

However, the present Conservative government seems now to have decided to ignore the court rulings and previously stated beliefs of their own members.

Oberlander should not be going through this again, and no other Canadian should go through this in the future. We should be fixing the process so that never again will politicians, who can be lobbied by special interest groups, make decisions about revoking citizenship behind closed doors.

For further information on the Citizenship Act, visit and link to websites of CBC, Lost Canadians and War Brides.