Docket: A-51-15
Citation:
2016 FCA 52
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CORAM:
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DAWSON J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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HELMUT
OBERLANDER
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Appellant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
I.
Introduction
[1]
In 1995, proceedings were commenced to revoke
the appellant’s Canadian citizenship on the ground that he obtained such
citizenship on the basis of making a false representation, acting in a
fraudulent manner or by knowingly concealing material circumstances. Since then,
the revocation proceeding has been both contested and protracted, as
illustrated by the following brief history of the proceeding:
i)
In 2000, Justice MacKay of the Federal Court
issued thoughtful and comprehensive reasons in which he concluded that the
appellant obtained his Canadian citizenship by making a false representation or
by knowingly concealing material circumstances ([2000] F.C.J. No. 229, 185
F.T.R. 41). In the course of his reasons, Justice MacKay made findings of fact
as to the nature of the appellant’s wartime service during World War II.
ii)
Following this decision, in 2001, the Governor
in Council revoked the appellant’s citizenship. Subsequently, this Court set
aside the decision of the Governor in Council and remitted the matter back to
the Governor in Council for a new determination (2004 FCA 213, [2005] 1 F.C.R.
3).
iii)
In 2007, after reconsidering the matter, the
Governor in Council again revoked the appellant’s citizenship. Thereafter, this
Court upheld the finding of the Federal Court that the decision of the Governor
in Council that the appellant had been complicit in war crimes perpetrated by
the Einsatzkommando 10a (Ek 10a) during World War II was reasonable. However, a
majority of this Court found that the Governor in Council was obliged to
consider the issue of duress. Thus, the Court allowed the appellant’s appeal
from the decision of the Federal Court in part and remitted the matter to the
Governor in Council for consideration of the issue of duress (2009 FCA 330,
[2010] 4 F.C.R. 395, at paragraphs 2 and 41).
iv)
Following the decision of the majority of this
Court, in 2012 the Governor in Council considered whether the appellant’s assertion
of duress was sufficient to excuse his complicity in the activities of Ek 10a.
The Governor in Council decided the defence of duress had not been established
and therefore it once again revoked the appellant’s citizenship.
[2]
The appellant brought an application in the
Federal Court for judicial review of this third decision revoking his
citizenship. For reasons cited as 2015 FC 46, a judge of the Federal Court
dismissed the application for judicial review. This is an appeal from that
decision.
II.
The Context in which this Appeal Arises
[3]
At this point it is helpful to explain the very
unique circumstances before the Court on this appeal.
[4]
As explained above, in its second decision
revoking the appellant’s citizenship in 2007, the Governor in Council found that
the appellant was complicit in war crimes committed by the Ek 10a. In rendering
this decision, the Governor in Council relied upon the legal test for
complicity articulated by this Court in Ramirez v. Canada (Minister of
Employment and Immigration), [1992] 2 F.C.R. 306, 135 N.R. 390. There, this
Court held that “no one can ‘commit’ international
crimes without personal and knowing participation” (Ramirez, page
317). When considering what degree of complicity is required in order to be an
accomplice or abettor, this Court concluded that “mere
membership in an organization which from time to time commits international
offences is not normally sufficient for exclusion from refugee status” (Ramirez,
page 317). This said, the Court added the following caveat: “[i]t seems apparent, however, that where an organization is
principally directed to a limited, brutal purpose […] mere membership may by
necessity involve personal and knowing participation in persecutorial acts”
(Ramirez, page 317). Thus, complicity through association rested “on the existence of a shared common purpose and the
knowledge that all of the parties in question may have of it” (Ramirez,
page 318).
[5]
Applying this jurisprudence in its second
decision, the Governor in Council asked whether “there
was evidence permitting a finding that Mr. Oberlander could be suspected of
being complicit in the activities of a brutal purpose organization”. The
Governor in Council went on to find that the appellant was a member of Ek 10a
and that through such membership he “could be suspected
of being complicit in the activities of a limited brutal purpose organization”.
[6]
In upholding the Governor in Council’s finding
of complicity, this Court also applied Ramirez, stating the law to be
that membership in a limited brutal purpose organization creates a presumption
of complicity which can be rebutted by evidence that there was no knowledge of
the organization’s purpose or no direct or indirect involvement in its acts
(2009 FCA 330, at paragraph 18). Based on findings of fact made by Justice MacKay,
the Court found the appellant had not rebutted the presumption of complicity:
the appellant had knowledge of the functions of Ek 10a and had indirectly
served its purpose (2009 FCA 330, at paragraphs 21 and 22).
[7]
Subsequent to the decision of the Governor in
Council finding the appellant to have been complicit in the activities of Ek
10a, and the decision of this Court upholding the reasonableness of the
Governor in Council’s decision on complicity, the Supreme Court of Canada found
it necessary to re-articulate the test relevant to determinations of
complicity: Ezokola v. Canada (Citizenship and Immigration), 2013 SCC
40, [2013] 2 S.C.R. 678. In the view of the Supreme Court, while international
law recognizes a broad concept of complicity,
“individuals will not be held liable for crimes committed by a group simply
because they are associated with that group, or because they passively
acquiesced to the group’s criminal purpose” (Ezokola, at paragraph 68).
Thus, to be complicit, “there must be serious reasons
for considering” that the person concerned
“voluntarily made a significant and knowing contribution to the organization’s
crime or criminal purpose” (Ezokola, at paragraph 84).
III.
The Decision of the Federal Court
[8]
In dismissing the appellant’s application for
judicial review, the Federal Court made four key findings.
[9]
First, the Federal Court found that with respect
to the issue of complicity, all of the pre-conditions for issue estoppel were
met: the complicity issue was previously decided by this Court; the decision of
this Court was final; and, the parties to the proceedings were the same
(reasons, paragraph 96).
[10]
Second, the Federal Court found the appellant
did not establish grounds that would allow it to exercise its discretion to
return the issue of complicity for reconsideration (reasons, paragraph 113).
[11]
Next, the Federal Court found the process was
procedurally fair to the appellant (reasons, paragraph 204).
[12]
Finally, the Federal Court found the decision of
the Governor in Council in respect of duress was reasonable (reasons, paragraph
231).
IV.
The Issue on Appeal
[13]
While the appellant challenges each of the above
findings of the Federal Court, in my view, one issue is determinative: did the
Federal Court err in principle by concluding that the appellant had not
established grounds sufficient to allow it to exercise its discretion to remit
the issue of complicity for redetermination?
V.
Standard of Review
[14]
The decision of the Federal Court as to the
exercise of its discretion is one that should be afforded deference. However,
this Court may intervene if the discretion is exercised on the basis of an
erroneous principle (Canadian Imperial Bank of Commerce v. Green, 2015
SCC 60, at paragraph 95; citing Soulos v. Korkontzilas, [1997] 2 S.C.R. 217,
at paragraph 54).
VI.
Application of the Standard of Review
[15]
The Federal Court’s analysis of the issue of the
exercise of discretion is found in paragraphs 104 to 113 of its reasons. The
Court began by acknowledging that even where the criteria for issue estoppel
are met, “the Court retains a residual discretion to
determine that the doctrine should not be applied where, taking into account
the entirety of the circumstances, this could lead to an injustice”
(reasons, paragraph 104).
[16]
After discussing the principles said to apply to
the exercise of discretion, the Court correctly noted that the overarching
consideration is whether the interests of justice require the exercise of
discretion. Citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,
[2001] 2 S.C.R. 460, at paragraph 80, the Court noted that it was required
to “stand back and, taking into account the entirety of
the circumstances, consider whether the application of issue estoppel in the
particular case would work an injustice” (reasons, paragraph 109).
[17]
The Court then gave two reasons why the
interests of justice did not require relitigation of the complicity issue.
First, the appellant failed to challenge this Court’s application of Ramirez
when it upheld the decision that found him to have been complicit in war crimes.
The Federal Court found no injustice arose when the appellant chose not to
avail himself of that opportunity (reasons, paragraph 111). Second, the
appellant failed to establish that the decision finding him complicit was “clearly wrong” (reasons, paragraph 112).
[18]
In my respectful view, missing from the Federal
Court’s analysis was consideration of the impact of maintaining the previous
finding of complicity in circumstances where that finding was directly related
to the current determination of duress.
[19]
The link between duress and complicity is
well-settled at law. This is so because the defence of duress requires
proportionality between the harm threatened against the person concerned and
the harm inflicted by that person – whether directly or through complicity
(see, for example, Ramirez at pages 327 and 328; R. v. Ryan, 2013
SCC 3, [2013] 1 S.C.R. 14, at paragraphs 53 to 55, 70 to 74).
[20]
In the decision under review, the Governor in
Council considered the requirement of proportionality, noting that:
i)
The potential harm the appellant would have
faced by attempting to protest or disobey an order must be more serious than
the harm to the victims brought about by the appellant’s actions (reasons,
paragraph 47).
ii)
Justice MacKay found that the Ek 10a was a
killing squad. Thus, the appellant was required to show that he feared death in
order to justify his complicity in the actions of the killing squad (reasons,
paragraph 48).
iii)
The record did not support a conclusion that the
appellant faced a risk of execution. “To suggest that
an unsubstantiated risk of harm is no less than the atrocities of the Nazi
regime is abhorrent” (reasons, paragraph 56).
[21]
As explained above, in Ezokola the
Supreme Court renounced a test for complicity that had
“inappropriately shifted its focus towards the criminal activities of the group
and away from the individual’s contribution to that criminal activity” (Ezokola,
paragraph 79). As the Court noted, “a concept of
complicity that leaves any room for guilt by association or passive
acquiescence violates two fundamental criminal law principles” (Ezokola,
paragraph 81).
[22]
In this circumstance, I am satisfied that the
application of issue estoppel worked an injustice to the appellant such that
the Federal Court erred in principle in applying the doctrine. The appellant
was entitled to a determination of the extent to which he made a significant
and knowing contribution to the crime or criminal purpose of the Ek 10a. Only
then could a reasonable determination be made as to whether whatever harm he
faced was more serious than the harm inflicted on others through his
complicity.
VII.
Conclusion
[23]
For these reasons, I would allow the appeal and
set aside the judgment of the Federal Court, with costs both in this Court and
the Federal Court. Pronouncing the judgment that should have been made, I would
remit the issues of complicity and duress to the Governor in Council for
redetermination in accordance with the law.
“Eleanor R. Dawson”
“I agree.
D. G. Near J.A.”
“I agree.
Richard Boivin J.A.”
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