Date: 20091117
Docket: A-589-08
Citation: 2009 FCA 330
CORAM: SHARLOW
J.A.
LAYDEN-STEVENSON
J.A.
RYER
J.A.
BETWEEN:
HELMUT OBERLANDER
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1]
On May
17, 2007, the Governor in Council (GIC), by Order P.C. 2007-801, revoked the
citizenship of the appellant, Helmut Oberlander, on the basis that he obtained
it by knowingly concealing material circumstances, specifically, that he had
been an auxiliary of the Einsatzkommando 10a (Ek 10a) during World War II. Mr.
Oberlander sought judicial review of that decision. A Federal Court judge (the
application judge) dismissed the application. This appeal is from that
judgment.
[2]
I conclude
that the appeal should be allowed in part and the matter remitted to the GIC
for determination with respect to the issue of duress.
Background
[3]
Mr.
Oberlander’s circumstances are extensively documented in decisions of the
Federal Court and this Court: Canada (Minister of Citizenship and
Immigration) v. Oberlander, (2000), 185 F.T.R. 41 (T.D.) (Oberlander 1);
Oberlander v. Canada (Attorney General) (2003), 238 F.T.R. 35 (F.C.) (Oberlander
2); Oberlander v. Canada (Attorney General), [2005] 1 F.C.R. 3
(C.A.) (Oberlander 3); Oberlander v. Canada (Attorney General)
(2008), 336 F.T.R. 179 (F.C.) (Oberlander 4). For present purposes, a
detailed recitation is not required.
[4]
Briefly
stated, during World War II, the Ek 10a operated behind the German army’s front
line in the Eastern occupied territories. It was part of a force responsible
for killing more than two million people, most of whom were civilians and
largely Jewish. It has been characterized as a death squad. From 1941 to 1943,
Mr. Oberlander served with the Ek 10a as an interpreter and an auxiliary. In
addition to interpreting, he was tasked with finding and protecting food and
polishing boots. He lived, ate, travelled and worked full time with the Ek 10a.
From 1943 to 1944, he served as an infantryman in the German army.
[5]
In 1954,
Mr. Oberlander and his wife immigrated to Canada. They had two daughters, one of whom has
a mental illness. Mr. Oberlander became a Canadian citizen in 1960. He did not
disclose his wartime experience to Canadian officers when he applied to come to
Canada, when he entered Canada, or when he applied for
Canadian citizenship.
[6]
In 1995,
the process under sections 10 and 18 of the Citizenship Act, R.S.C.
1985, c. C-29 to revoke Mr. Oberlander’s citizenship was initiated. A Reference
to the then Federal Court of Canada, Trial Division (the
Reference) was heard by Mr. Justice MacKay. The factual findings from the
Reference are binding for subsequent purposes in relation to the revocation of
citizenship, including this appeal. The penultimate finding was that Mr.
Oberlander had falsely represented his background and knowingly concealed
information and was granted citizenship on that basis.
[7]
After
receipt of Justice MacKay’s factual findings from the Reference, the Minister
of Citizenship and Immigration (the Minister) issued a report to the GIC
recommending revocation of Mr. Oberlander’s citizenship. The recommendation was
accepted and the citizenship was revoked. Mr. Oberlander unsuccessfully applied
for judicial review. On appeal to this Court, Mr. Oberlander’s appeal was
allowed and the Minister was directed to present the GIC with a new report
addressing the concerns expressed by the Court. The Minister’s failure to
address the purpose of the Ek 10a organization, failure to address the issues
of complicity and conscription and failure to provide an explanation to support
the conclusion that Mr. Oberlander fell within the government’s “no safe haven
policy” were specifically identified as defects in the Minister’s report.
[8]
The
Minister issued a new report recommending the revocation of citizenship. The
GIC accepted the recommendation and again revoked Mr. Oberlander’s citizenship.
A second application for judicial review was commenced and dismissed. Mr.
Oberlander appeals from that judgment.
Federal Court Decision
[9]
At the
outset of his reasons, the application judge identified two central issues:
whether the GIC erred in finding, first, that there were reasonable grounds to
believe Mr. Oberlander was complicit in war crimes or crimes against humanity
and as a consequence subject to Canada’s “no safe haven” policy and, second,
whether the GIC properly considered Mr. Oberlander’s personal interests in
revoking his citizenship.
[10]
The
application judge determined that the standard of review with respect to the revocation
decision is that of reasonableness. He noted that the Minister’s report
constitutes the reasons for the GIC decision. He summarized the criteria the GIC
relied upon to conclude that the Ek 10a was a limited brutal purpose
organization and he arrived at the same conclusion. Regarding complicity, he
concluded that the GIC’s reasons were adequate and reasonable. With respect to
the balancing of Mr. Oberlander’s personal interests and the public interest,
the application judge concluded that the reasons, although brief, justified the
revocation of citizenship on the basis that the public interest outweighed Mr.
Oberlander’s personal interests.
Standard of Review
[11]
On an
appeal from a decision disposing of an application for judicial review, the
question for the appellate court to decide is whether the reviewing court
identified the appropriate standard of review and applied it correctly: Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and
Oceans), [2006] 3 F.C.R. 610 (F.C.A.); Canada Revenue Agency v. Telfer,
2009 FCA 23.
[12]
The
parties agree, and I concur, that the application judge correctly identified
the applicable standard of review of the revocation decision as reasonableness.
The Legislative Provisions
[13]
The
pertinent legislative provisions are as follows:
CITIZENSHIP ACT
PART II
LOSS OF CITIZENSHIP
Order in cases of
fraud
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,
(a)
the person ceases to be a citizen, or
(b)
the renunciation of citizenship by the person shall be deemed to have had no
effect,
as of such date as may be
fixed by order of the Governor in Council with respect thereto.
Presumption
(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.
PART V
PROCEDURE
Notice to person in respect of
revocation
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
(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
(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.
Nature of notice
(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.
Decision final
(3) A decision of the Court
made under subsection (1) is final and, notwithstanding any other Act of
Parliament, no appeal lies therefrom.
|
LOI
SUR LA CITOYENNETÉ
PARTIE II
PERTE DE LA CITOYENNETÉ
Décret
en cas de fraude
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) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
Présomption
(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.
PARTIE V
PROCÉDURE
Avis
préalable à l’annulation
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) 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) la Cour, saisie de l’affaire, a décidé qu’il y avait eu
fraude, fausse déclaration ou dissimulation intentionnelle de faits
essentiels.
Nature de l’avis
(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.
Caractère définitif de la décision
(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 “No Safe Haven” Policy
[14]
This Court
previously determined in Oberlander 3 that the policy at the relevant
period is as stated in a Public Report entitled Canada’s War Crimes Program 2000-2001, the
pertinent portions of which are as follows:
The policy of the Government of Canada is
clear. Canada will not become a
safe haven for those individuals who have
committed war crimes, crimes
against humanity or any other
reprehensible act during times of conflict.
Over the past several years, the
Government of Canada has taken significant
measures, both within and outside of our
borders, to ensure that appropriate
enforcement action is taken against
suspected war criminals, regardless of
when or where the crimes occurred. These
measures include co-operation with
international courts, foreign governments
and enforcement action by one
of the three departments
mandated to deliver Canada’s War Crimes Program.
Canada is actively involved in supporting the
International Criminal Tribunals
for the former Yugoslavia (ICTY) and
Rwanda (ITCR) and has ratified both
the International Criminal Court Statute
(ICC) and the Optional Protocol to
the Convention on the Rights of the Child
on the Involvement of Children in
Armed Conflicts. Canada was the first country to introduce
comprehensive
legislation incorporating the provisions
of the ICC Statute into domestic law.
This legislation, The Crimes Against
Humanity and War Crimes Act, came
into force on October 23,
2000.
…
World War II Cases
…
The government pursues only those
cases for which there is evidence of
direct involvement in or complicity of
war crimes or crimes against
humanity. A person is considered
complicit if, while aware of the
commission of war crimes or crimes
against humanity, the person contributes,
directly or indirectly, to their
occurrence. Membership in an organization
responsible for committing the atrocities
can be sufficient for complicity
if the organization in question is one
with a single, brutal purpose, e.g. a
death
squad. (emphasis
in original)
Issue
[15]
No issue
is taken with the finding that the Ek 10a was a limited brutal purpose
organization. The dispute centers on whether Mr. Oberlander could reasonably be
found to be complicit in the war crimes perpetrated by this group and whether,
if the answer is yes, the issue of duress arises.
The Position of the Parties
[16]
Mr.
Oberlander argued before the application judge and before this Court that
membership in a limited brutal purpose organization is insufficient to
establish complicity. More particularly, he contended that mens rea must
include a shared common purpose as well as knowing and meaningful
participation. His more nuanced argument regarding duress was not placed
squarely before the application judge.
[17]
The Attorney
General (AG) asserted that the analysis must be centered on the limited brutal
purpose organization because the law, in this context, requires only
membership, knowledge and involvement. If these criteria are met, complicity is
made out. The AG conceded that the issue of duress is available to overcome or
absolve culpability, but maintained that it was not advanced to the GIC. In
reply, Mr. Oberlander countered that, although duress was not specifically
pleaded, the issue was evident from the record.
Analysis
[18]
The
jurisprudence teaches that membership in a limited brutal purpose organization
creates a presumption of complicity that can be rebutted by evidence that there
was no mens rea (knowledge of the purpose) or actus reus (direct or indirect
involvement in the acts). In other words, while membership per se is
insufficient to establish complicity, it does create a rebuttable factual
presumption. See: Ramirez v. Canada (Minister of Citizenship and
Immigration),
[1992] 2 F.C. 306 (F.C.A.) at 317; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1
F.C. 298 (F.C.A.) at para. 45; Sivakumar v. Canada (Minister of Employment and
Immigration),
[1994] 1 F.C. 433 (F.C.A.) at 440, 442; Barzargan v. Canada (Minister of Citizenship and
Immigration)
(1996), 205 N.R. 282 (F.C.A.) at para. 10; Sumaida v. Canada (Minister of Citizenship and
Immigration),
[2000] 3 F.C. 66 (F.C.A.) at paras. 31, 32; Harb v. Canada (Minister of Citizenship and
Immigration)
(2003), 238 F.T.R. 194, 302 N.R. 178 (F.C.A.) at para. 11; Zazai v. Canada (Minister of Citizenship and
Immigration) (2004), 318 N.R. 365 (F.C.A.) at para. 6; Zazai v. Canada (Minister of Citizenship
and Immigration) (2005), 259 D.L.R. (4th) 281, 339 N.R. 201
(F.C.A.) at paras. 15, 16.
[19]
The
Citizenship and Immigration Manual, ENF 18: War crimes and crimes against
humanity (Ottawa: Public Works
and Government Services Canada) contains ministerial guidelines regarding
the factors to be considered in assessing allegations of war crimes (the
ministerial guidelines). These ministerial guidelines are compatible and
consistent with the jurisprudence.
[20]
In the
normal course, the Minister bears the onus of establishing the requisite
elements of complicity. The burden of proof is more than suspicion but less
than the balance of probabilities: Ramirez. It may also be referred to
as “reasonable grounds to believe”: Mugesera v. Canada (Minister of Citizenship and
Immigration),
[2005] 2 S.C.R. 100.
[21]
In this
case, the binding factual findings from the Reference preclude any argument
with respect to a lack of knowledge or participation. Justice MacKay found as
follows:
·
Mr.
Oberlander was a member of Ek 10a;
·
Mr.
Oberlander could not have been unaware of the function of the unit. He
acknowledged that at some time while serving with Ek 10a he was aware of its
execution of civilians;
·
Mr.
Oberlander served as an auxiliary with the unit and he lived and travelled with
men of the unit. Its purposes he served.
[22]
Because
these factual findings are binding, the requisite mens rea (knowledge)
and actus reus (in this case indirect participation)
are met. The application judge made no error in applying the standard of review
when he concluded that the decision with respect to complicity was reasonable.
[23]
Regarding
the issue of conscription, Mr. Oberlander maintained before this Court that he
was conscripted and that his participation in Ek 10a was under duress because
the penalty for desertion was execution.
[24]
Both the
jurisprudence and the ministerial guidelines provide that the justification of
duress is available to absolve complicity: Ramirez; Equizabal v. Canada (Minister of Citizenship and
Immigration),
[1994] 3 F.C. 514 (C.A.) (Equizabal).
[25]
To
establish duress, the jurisprudence requires the individual to demonstrate
there was imminent physical peril in a situation not brought about voluntarily
and that the harm caused was not greater than the harm to which the individual
was subjected (Equizabal).
[26]
The
ministerial guidelines similarly require that three conditions be satisfied.
Duress may be established where:
·
it results
from a threat of imminent death or of continuing or imminent serious bodily
harm against that person or another person;
·
the person
acts necessarily and reasonably to avoid this threat;
·
the person
does not intend to cause a greater harm than the one sought to be avoided.
[27]
Duress
does not negate findings with respect to mens rea or actus reus. Rather, it operates to
excuse the complicity so that the complicit individual is exonerated of
culpability.
[28]
Confusion
has arisen as to where the issue of conscription is to be addressed when the
organization in question is one of limited brutal purpose. The issue has been
canvassed primarily in the context of organizations that do not meet the
requisite threshold for characterization as a limited brutal purpose
organization. Consequently, clarification in this respect is required.
[29]
In my
view, the issue of conscription with respect to a limited brutal purpose organization
is properly examined as a factor in relation to justification. The AG does not
disagree with this proposition.
[30]
Each case
will ultimately turn on its facts. The point is, where complicity is made out
in relation to a limited brutal purpose organization, the facts may nonetheless
give rise to the justification of duress.
[31]
Mr.
Oberlander acknowledged that he did not “expressly put forward” the issue of duress.
However, he claimed to have submitted the requisite evidence upon which it
should have been assessed. The AG countered that any such evidence was “neither
compelling nor reliable…it was equivocal to non-existent.” From the AG’s
perspective, “it is improper…to now make this assertion for the first time on
appeal, when he failed to present any such evidence to the GIC and thus deprive
the Minister of the opportunity to address it before the GIC.”
[32]
In
addressing conscription, the GIC stated, “[e]ven if one assumes that Mr.
Oberlander was conscripted, that in no way means that he was not complicit in
his unit’s subsequent brutal actions.” Further, “[c]onscription is not a
barrier to complicity. If that were so, no draftee could ever be found
complicit in his unit’s activities. Such a position is untenable.”
[33]
I do not
disagree with those comments and, as I understand the argument, neither does Mr.
Oberlander. He contends that the statements are incomplete. He accepts that
conscription, in and of itself, is not conclusive. However, he claims that the
prospect of execution upon desertion, in combination with conscription, may be
sufficient to found duress. Relying upon the comment in Ramirez that
“the law does not function at the level of heroism”, Mr. Oberlander maintains
that the full evidentiary record was not assessed.
[34]
The GIC’s
reasons are silent with respect to Mr. Oberlander’s allegation that he would
have been executed had he deserted. The question then is whether the record
contained sufficient information to oblige the GIC to consider that allegation,
along with the evidence of conscription and any other relevant evidence, to
determine whether the justification of duress is made out, notwithstanding that
duress was not the basis of Mr. Oberlander’s argument. In my view, there was
sufficient evidence in the record to require the GIC to address this issue.
[35]
The
Minister was a party to the Reference. There, Mr. Oberlander raised factors
related to duress. Justice MacKay noted Mr. Oberlander’s evidence that he was
ordered to work for the Germans, he believed he had no alternative and would
have been subject to the harshest penalties had he not gone as ordered
(para. 20). Further, Justice MacKay referred to Mr. Oberlander’s evidence that
he was ordered by local authorities to report to German occupying forces to
serve as an interpreter and his evidence that he reported not voluntarily by
free choice, but in fear of harm if he refused (para. 191). Although
Justice MacKay made no findings in this respect, the GIC cannot claim to be
unaware of these assertions.
[36]
Mr.
Oberlander’s submissions to the GIC related that at the age of seventeen he was
forcibly taken from his mother’s home and conscripted as a civilian interpreter
by the SD, the police arm of the SS of the Nazi regime. He asked, “[h]ow can
anyone be a member in any capacity of an organization against his will?” He
stated that he was in the same situation as the witness Mr. Siderenko, a
prisoner of war captured and forced to fight for the Germans. He claimed to
have been forced into an infantry unit despite the fact that he had no military
training. He maintained that all witnesses, including government witnesses with
personal experience, agreed that escape was punishable by death. In his
responsive submissions, he referred to voluntariness as a key issue and specifically
noted the testimony of the government’s witnesses Sidorenko and Hubert that any
attempts at escape were punishable by death.
[37]
As stated
previously, the GIC linked the issue of conscription to the matter of
membership in the organization. However, I have concluded that, in a limited
brutal purpose organization, conscription is appropriately addressed under the
justification of duress. The ministerial guidelines expressly refer to duress
and they delineate the requisite conditions to be analysed in relation to it.
In my view, the above-noted evidence ought to be addressed notwithstanding
there was no specific argument labelled “duress”. That the AG does not regard
the evidence as compelling or reliable begs the question. It is for the GIC to
make that determination. The burden of explanation increases with the relevance
of the evidence in question to the disputed facts: Cepeda-Gutierrez v. Canada (Minister of Citizenship
and Immigration) (1998), 157 F.T.R. 35 (T.D.).
[38]
That said,
the GIC’s observations regarding the absence of evidence or finding that Mr.
Oberlander was mistreated after he joined the unit, or that he found its
activities abhorrent or that he ever sought to be relieved of his duties are
equally relevant.
[39]
Undoubtedly,
the revocation of Mr. Oberlander’s citizenship is a matter for the GIC to
determine. However, in view of its serious consequences, it is critical that
all relevant issues be considered and analyzed. The process must not only be
proper and fair, it must be seen to be so. It is open to the GIC to reject
duress as a justification, but it must not ignore it. The clarification that conscription
is to be considered in relation to the justification of duress, when dealing
with a limited brutal purpose organization, should facilitate the analysis.
[40]
With
respect to Mr. Oberlander’s argument that the consideration of his personal
interests was inadequate, the application judge correctly observed that issues
related to deportation are irrelevant because deportation constitutes a
separate process. Relying upon the reasoning in Lake v. Canada (Minister of
Justice), [2008] 1 S.C.R. 23, he noted the brevity of the reasons with
respect to this issue and determined, despite their brevity, they plainly
disclosed why Mr. Oberlander’s personal interests did not outweigh the public
interest. Therefore, they were reasonable. I am not persuaded that the application
judge incorrectly applied the standard of review in relation to this issue.
[41]
I would
allow the appeal in part. Making the order that ought to have been made, I
would remit the matter to the GIC for consideration of the issue of duress.
Given the appellant’s partial success, the fact that he did not plead duress
before the GIC and did not raise the issue before the application judge, I
would not award costs.
“Carolyn
Layden-Stevenson
“I
agree.
C. Michael Ryer J.A.”
SHARLOW J.A. (dissenting
reasons)
[42]
I respectfully disagree with my
colleagues’ proposed disposition of this appeal.
[43]
The record here is equivocal on duress, and there is no reasonable explanation for Mr. Oberlander’s
failure to assert duress in his submissions to the Minister or the Federal
Court. Unlike my colleagues, I am not persuaded that a valid explanation arises
from the fact that the jurisprudence on duress in relation to limited brutal
purpose organizations has not yet been well developed. I see no basis for
concluding that Mr. Oberlander’s failure to assert duress until now was
anything but a deliberate decision on his part.
[44]
In these circumstances, it
seems to me that the GIC made no error warranting the intervention of this
Court when it did not address the issue of duress. For that reason, I would
dismiss this appeal.
“K.
Sharlow”