1. Oberlander sought an application

To quash the Order-in-Council revoking his citizenship (issued July 12, 2001)

To stay proceedings before the Immigration & Refugee Board as to his deportation

In the nature of mandamus whereby Minister would be ordered to issue a certificate of citizenship to him

In the nature of a declaration that he cannot be deported

Oberlander also sought a motion for a stay of proceedings before the IRB pending the disposition of the above application.

2. The feds sought a motion to stay both Oberlander's application and his motion.

3. Issue: does the Superior Court of Ontario have jurisdiction to hear Oberlander's application on its merits with respect to some of the issues raised?

4. During the course of proceedings against Mr. Oberlander, the judge noted the interruption caused by the so-called Thompson affair, wherein the Asst. Deputy Attorney General and the Chief Justice of the Federal Court (and Assoc. Chief Justice) held a meeting where there occurred "clearly ill-advised and inappropriate communications," resulting in a holding by the Supreme. Court of Canada that there had been "an abuse of process and interference with judicial independence".

5. Justice Reilly reviewed Judge MacKay's Feb., 2000 decision wherein the latter had concluded that there was no evidence of membership in the German SD and no evidence of participation in executions of civilians as the feds had alleged. He concluded, though, that Mr. Oberlander, applying the principle of guilt by association, had belonged to an Einsatzkommando unit and "probably" misrepresented this when he applied to come to Canada.

6. Then Minister of Citizenship & Immigration Caplan recommended "strongly" that Mr. Oberlander's citizenship be revoked -- making this pitch to Cabinet, which issued revocation order on July 12, 2001 [Crown would not verify signature on document].

7. Meanwhile Mr. Oberlander applied for judicial review of the O/C, but was turned down (Aug. 2003) -- this is now under appeal to Federal Court Appellate Division.

8. The feds made the following submissions opposing Justice Reilly's assumption of jurisdiction:

a) that the Federal Court-Trial Division had already dealt with the specific issue now being raised in Mr. Oberlander's application;

b) that Mr. Oberlander had opportunity to raise these same issues before the Federal Court, but didn't;

c) that Mr. Oberlander could raise these issues on appeal to the Appellate Division; and

d) that the Ontario Court should concede jurisdiction to the Federal Court since the latter has "both the experience and expertise in immigration matters".

9. All 4 submissions by feds were rejected on these grounds:

a) those issues were not dealt with at the Trial Division;

b) decision of Federal Court Trial Divivision was that procedure fell within the parameters of the statute and its conclusions were not patently unreasonable;

c) Charter must come into play here; and

d) no decided cases were produced to support proposition that Federal Court is more appropriate to deal with validity of citizenship revocation.

10. In relation to the issues raised in Mr. Oberlander's application, the following were held not to have merit sufficient to have them heard under the jurisdiction of the Ontario Superior Court:

a) section 15 of Charter - equality before and under the law, and equal protection and benefit of the law-i.e. as to selectivity issue;

b) s. 12 - right not to be subjected to cruel and unusual punishment -- should be left to the I.R.B.;

c) issue of whether domicile protects against deportation-should be left to I.R.B.;

d) s. 11 - only deals with situation where one is charged with an offence; and

e) s. 6 - mobility rights-counsel has used wrong section.

11. Issue that needs more explanation by Mr. Oberlander's lawyer, so could go either way:

a) s. 8 - unreasonable search and seizure -- needs more work by Mr. Oberlander's counsel.

12. Issues that have sufficient merit in the application:

a) alleged misconduct by government lawyers;

b) delay in prosecuting case allegedly amounting to an abuse of process; and

c) alleged infringement of s. 7 of the Charter: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

13. Key issue then is -- was the process whereby Mr. Oberlander had his Canadian citizenship revoked in accordance with the principles of fundamental justice as guaranteed by s. 7 of the Charter, thereby denying Mr. Oberlander fairness and due process?

14. Mr. Oberlander is not saying that process in sections 10 and 18 of the Citizenship Act is not in accordance with principles of fundamental justice; he's saying that the way the process was followed did not accord with those principles.

15. It was in the key area of the last stage of the process i.e. where Minister of Citizenship and Immigration recommends to a Committee of Cabinet that Cabinet sign an O/C revoking Mr. Oberlanders's citizenship that what transpired at the July 2001 hearing Mr. Oberlander claims violated his Charter rights because:

a) no evidence Mr. Oberlnder's submissions were presented at that meeting;

b) no evidence whether a quorum of Cabinet Ministers were present;

c) no indication which Cabinet Ministers were present;

d) if Ministers of Citizenship and Immigration as well as Justice & Attorney General were present, and if they presided as part of the tribunal "then they were involved in a clear conflict of interest."

e) Mr. Oberlander not offered opportunity to face his accusers;

f) Mr. Oberlander not allowed to have counsel present, "notwithstanding the government's active participation in that hearing."

g) complete lack of a record of the hearing; and

h) no reasons for decision were ever provided to Mr. Oberlander.

16. Feds contend that "the principle of Cabinet confidentiality as an integral part of Parliamentary government takes priority over any right of personal appearance before the tribunal or indeed any right to know the identity of the tribunal."

Disposition of Application: Court assumes jurisdiction to hear the application; Mr. Oberlander's motion is granted. The motion of the government is denied.

Question now is: will the feds appeal Justice Reilly's decision to the Ontario Court of Appeal?

Eugene Harasymiw, LL.B.
January 14, 2004