Oberlander v. Canada (Attorney General), 2003 FC 944

Date: 20030801

Docket: T-1505-01

Citation: 2003 FC 944

OTTAWA, ONTARIO, THIS 1^st DAY OF AUGUST, 2003

Present:           THE HONOURABLE MR. JUSTICE MARTINEAU                                 

BETWEEN:

                                                           HELMUT OBERLANDER

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 The applicant seeks judicial review of the decision of the Governor in Council to revoke his Canadian citizenship as of July 12, 2001.

[2]                 The applicant was born on February 15, 1924 in Ukraine. He and his wife immigrated to Canada on May 13, 1954, landing in Quebec City and settling in Kitchener, Ontario. Thirty one years ago the family moved to Waterloo and have remained there since. The applicant and his wife became Canadian citizens on April 12, 1960, at which time they had to give up their German citizenship. The applicant and his wife have two daughters of their marriage, both born in Canada. One of the daughters is suffering from a mental illness and is dependent on her parents.

[3]                 It has been brought to the attention of the Minister of Citizenship and Immigration (the "Minister") that the applicant obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. Canadian citizenship can be revoked by the Governor in Council, on a report from the Minister, when it has been obtained by false representation or fraud or by knowingly concealing material circumstances. However, before such a report can be submitted to the Governor in Council, the person concerned must first be given the opportunity to have the matter referred to the Federal Court which, if such a reference is made, will decide whether the person has obtained the citizenship by false representation or fraud or by knowingly concealing material circumstances.

[4]                 Sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Act") read as follows:

[5]                 Notice of the Minister's intent to make a report to the Governor in Council recommending the revocation of the applicant's citizenship was signed on January 27, 1995. The Notice alleged that the applicant had been admitted to Canada for permanent residence and had obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, in that he failed to divulge to Canadian immigration and citizenship officials his membership in the German Sicherheitspolizei und SD ("German Sipo/SD") and in Einsatzkommando 10A (EK 10a) during World War II and his participation in the execution of civilians during that time.

[6]                 The applicant requested the referral of his case to the Federal Court, where it proceeded by way of an action. MacKay J. of the Federal Court rendered his decision on February 28, 2000: Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (T.D.) (QL) ("Oberlander"). He found that the applicant was a member of EK 10a, a mobile mass killing squad which implemented the Third Reich's "final solution" in the former Soviet Union, particularly in Ukraine. However, he pointed out that no evidence was presented about any personal involvement of the applicant in criminal activities or war crimes and found that it was not established that the applicant had personally committed any war crimes. He also held that there was a well-established and regular process in place when the applicant applied to immigrate to Canada in 1953 whereby he and other immigrant applicants were questioned about their wartime activities. MacKay J. found that the applicant had been untruthful with Canadian immigration and citizenship officials by concealing his membership in EK 10a. He concluded that the applicant was admitted for permanent residence in 1954 on the basis of a visa obtained by reason of these false representations or by knowingly concealing material circumstances. Thus, he was not landed and did not thereafter acquire Canadian domicile. Subsequently, he obtained citizenship in 1960 by falsely presenting that he had acquired Canadian domicile. Therefore, he obtained Canadian citizenship by false representation.

[7]                 Subsequently, the applicant was invited to make written submissions to the Minister as to why revocation should not proceed. The applicant accepted the invitation and made extensive submissions to the Governor in Council. The Minister then provided the applicant with a copy of the intended report to the Governor in Council and invited him to make further submissions. The applicant, his wife, daughter and granddaughter, all made submissions, which the Minister attached to MacKay J.'s decision and a draft Order in Council, all of which formed part of the Minister's report that was delivered to the Governor in Council.

[8]                 On July 12, 2001, by Order in Council P.C. 2001-1227, the Governor in Council revoked the applicant's citizenship as of the date of said order.

[9]                 The mere fact that a statutory power is vested in the Governor in Council does not mean that it is beyond judicial review: [1980] 2 S.C.R. 735">Attorney General of Canada v. Inuit Tapirisat of Canada et al., [1980] 2 S.C.R. 735 at 748. Orders in Council are reviewable upon the same conditions as are statutes. As Orders in Council are in the main consequent upon delegated authority, it follows that judicial intervention is proper in the event that an Order in Council is beyond the authority conferred on the Governor in Council to make such order: Reyes v. Canada (Attorney General), [1983] 2 F.C. 125 at 133-34 (T.D.). In such cases, the correct procedure is by way of originating notice under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7: Saskatchewan Wheat Pool et al. v. Canada (Attorney General) (1993), 67 F.T.R. 98 at 100.

[10]            Law and jurisdiction are always within the ambit of judicial control and this Court is entitled to verify that the statutory procedures described in sections 10 and 18 of the Act have been properly complied with. I have no doubt that the pre-requisites for the exercise of the Governor in Council's power to revoke the applicant's citizenship have been met here. In the case at bar, there is no issue raised against the findings made by the Court or against the procedure followed by the Minister. Moreover, this is not a situation where the Governor in Council has decided to act on its own motion or where the affected individual has been deprived of the possibility to present his case before a recommendation by the Minister is made to the Governor in Council. Here, the applicant was provided with the full opportunity to adduce evidence and make representations at all stages of the revocation process.

[11]            The applicant does not allege that the impugned order was made without authority but only that it is invalid, in that the Governor in Council either did not consider that it had a discretion not to revoke the applicant's citizenship or failed to provide adequate reasons for its decision. The applicant further submits that the Governor in Council does not appear to have considered the policy guidelines of the Government which indicate that revocation of citizenship and removal of a person from Canada are to be initiated only against persons involved in war crimes and crimes against humanity. It is submitted that when one balances the positive factors in the applicant's favour against the conclusion drawn by McKay J. of misrepresentation, in the absence of any evidence of personal involvement in war crimes or crimes against humanity, the impugned order is unreasonable and as such cannot stand.

[12]            The basis for the applicant's revocation of citizenship is clearly and in unmistakable terms set out in the impugned order which reads as follows:

Whereas the Minister of Citizenship and Immigration has given the notice required under section 18 of the Citizenship Act to the person referred to in the annexed schedule of the Minister's intention to make a report under section 10 of the Act and that person has requested that the Minister refer the matter to the Federal Court of Canada - Trial Division (the "Court") and the Minister has referred the matter to the Court;

Whereas the Court has decided that that person was admitted to Canada for permanent residence in the circumstances described in subsection 10(2) of the Act, namely by false representation or fraud or by knowingly concealing material circumstances, and, because of that admission, that person subsequently obtained Canadian citizenship;

Whereas the Court has decided that that person has obtained citizenship under that Act by false representation or fraud or by knowingly concealing material circumstances;

Whereas the Governor in Council, on a report from the Minister of Citizenship and Immigration, is satisfied that the person referred to in the annexed schedule was admitted to Canada for permanent residence in the circumstances described in subsection 10(2) of that Act, namely by false representation or fraud or by knowingly concealing material circumstances;

Whereas the Governor in Council, on a report from the Minister of Citizenship and Immigration, is satisfied that the person referred to in the annexed schedule has obtained citizenship under that Act by false representation or fraud or by knowlingly concealing material circumstances;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to section 10 of the Citizenship Act, hereby declares that the person referred to in the annexed schedule ceases to be a Canadian citizen as of the date of this Order.

[13]            Where a decision is specifically based on the grounds set out in the Minister's report, and there is no evidence otherwise, the reasons for the determination of the Governor General in Council are those of the Minister: Al Yamani v. Canada (Solicitor General) (T.D.), [1996] 1 F.C. 174 at 220. The impugned order expressly refers to the Minister's report and endorses the findings made by the Court. In her report to the Governor in Council, the Minister mentions inter alia that she is "now able to recommend revocation because the Federal Court Trial Division has decided that Mr. Oberlander has obtained citizenship by false representation or fraud or by knowingly concealing material circumstances." Key findings of fact made by MacKay J. in Oberlander, supra, are highlighted in her report. The Minister notes inter alia that "[t]he evidence presented indicated that Mr. Oberlander served with EK 10a, wore the uniform of the EK 10a, lived, ate and travelled with EK 10a and ultimately served its purposes [...] As such, it was reasonable for Mr. Justice MacKay to conclude that anyone who worked with and served the unit in the manner that Mr. Oberlander did was in fact a member of that unit." She also observes that "[o]n the basis of Mr. Justice MacKay's finding, had Mr. Oberlander divulged his wartime service with EK 10a and his wartime activities when he applied to immigrate to Canada, he would not have been admitted to Canada in 1953. As a result, the only way Mr. Oberlander could have obtained his Canadian citizenship was on the basis of false representation, fraud or knowingly concealing material circumstances regarding his wartime activities."

[14]            In Canada (Minister of Citizenship and Immigration) v. Bogutin (1998), 144 F.T.R. 1 at para. 118, the Court stated that "[t]he decision on the reference provides the Minister with the factual basis for her report and in some point in the future may constitute the foundation of a decision by the Governor in Council." The Minister's report articulates and rationally sustains the Governor in Council's determination that the applicant obtained citizenship by false representation or fraud or by knowingly concealing material circumstances. This suffices, in my view, to satisfy any requirement that the order set out the reasons for which the Governor in Council has decided to revoke the Canadian citizenship of the applicant: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 845, 848-49 ("Baker"); and Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72 at paras. 20-22. This approach is also consistent with the decision of the Federal Court of Appeal in Canada (Secretary of State) v. Luitjens (1992), 142 N.R. 173 (F.C.A.). The Act specifically requires the Minister to prepare a report following the Court's determination. As such, the Minister's report is different in nature from the "memorandum" prepared by an officer of the Department which was reviewed by the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 ("Suresh") at paras. 16 and 116. Therefore, the present case is distinguishable from Suresh.

[15]            That being said, it is not necessary that, absent any express statutory requirement (such as the one found in paragraph 28(5) of the Broadcasting Act, S.C. 1991, c. 11), I formally decide whether there is an implied duty on the Governor in Council to give reasons, something that is categorically denied by the respondent who refers this Court to the following comments made by Dickson J. in [1983] 1 S.C.R. 106">Thorne's Hardware Ltd. v. The Queen, [1983] 1 S.C.R. 106 at 112-13 ("Thorne's Hardware Ltd."): "[g]overnments do not publish reasons for their decisions; governments may be moved by any number of political, economic, social or partisan considerations".

[16]            Neither can I infer in reading the impugned order, which is modelled on the words used in section 10 of the Act, that it is based on a wrong principle of law or that the Governor in Council erroneously considered that he had no discretion under the enabling statute. Moreover, it is clear in reading the Minister's report that the Minister herself recognizes the fact that the Governor in Council's power to revoke citizenship is discretionary. I note that in her report, the Minister states that "[i]n deciding whether to revoke citizenship, the Governor in Council should consider the government's "no safe haven" policy, the findings of the Trial Judge in the reference and any submissions made by Mr. Oberlander."

[17]            There was no obligation on the Governor in Council to mention all the elements it considered before reaching its decision. The fact that peripheral elements are not mentioned in the impugned order is no proof that they were not considered or that they were arbitrarily discarded. The true question is whether the grounds mentioned in the impugned order constitute, under the law, sufficient reason to revoke the applicant's citizenship. They clearly do, and this Court should not enter into a re-weighting of the evidence and the factors submitted by the parties.

[18]            In [1983] 1 S.C.R. 106">Thorne's Hardware Ltd., supra, at 111 the Supreme Court stated that "[d]ecisions made by the Governor in Council in matters of public convenience and general policy are final and not reviewable in legal proceedings". Although the rights of the individual are at stake, there are elements of general policy involved in the decision to revoke the citizenship. The "final decision" is taken here by the highest political organ of the Canadian government. A contextual analysis of sections 10 and 18 of the Act confirms that Parliament's intent was to render such political decisions final and immune from judicial scrutiny despite the absence of a privative clause.

[19]            Moreover, the legislative history shows that Parliament has chosen to transfer to the Governor in Council the power to revoke citizenship which at first was exercised by the courts or by the Secretary of State of Canada. Such power to revoke citizenship is entrusted to the Governor in Council to be independently exercised from the factual determination made by the Court that a person has obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (this power was at one time exercised by a commission appointed by the Governor in Council) (The history of section 18 of the Act begins with The Naturalization Act, R.S.C. 1906, c. 77, s. 66. Some changes can be observed in the following statutes and revisions until 1970 to become the version we are familiar with today: S.C. 1914, c. 44, s. 7; S.C. 1919-20, c. 59, s. 2; R.S.C. 1927, c. 138, s. 9; S.C. 1946, c. 15, s. 21; S.C. 1950, c. 29, s. 8; S.C. 1951, c. 12, s. 1; R.S.C. 1952, c. 33, s. 19; S.C. 1958, c. 24, s. 2; S.C. 1967-68, c. 4, s. 5; and R.S.C. 1970, c. 19, s. 18).

[20]            Where all relevant factors are considered, including the relative expertise of the decision maker, the purposes of the applicable provisions and enabling legislation, the existence of prior judicial safeguards by way of a referral to the Federal Court, I must conclude that the standard of review of the decision to revoke citizenship is patent unreasonableness: Suresh, supra; Pushpanathan ("Pushpanathan") v. Canada (Minister of Citizenship and Immigration), 1 S.C.R. 982; Baker, supra; Law Society of New Brunswick v. Ryan (2003), 302 N.R. 1 (S.C.C.); and Dr. Q v. College of Physicians and Surgeons of British Columbia (2003), 302 N.R. 34 (S.C.C.). Furthermore, just because the Court would come to a different conclusion, it is no reason for interfering with such decision. The patently unreasonable standard of review requires that the defect be obvious, thus readily apparent on the face of the record. If detecting the defect requires "significant searching or testing" the decision is not "patently unreasonable": Suresh, supra, at paras. 29-30; Pushpanathan, supra; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at para. 38; and Canada (Director or Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 57.

[21]            Here, the applicant has failed to show that the impugned order is patently unreasonable. The mere fact that the Governor in Council's decision was unfavourable to the applicant is not sufficient to warrant the Court's intervention. That said, I am far from convinced of the merit of the argument made by the applicant that the impugned decision is contrary to public policy, and this even with "significant searching or testing". I also find that the decision to revoke the Canadian citizenship of the applicant was reasonably opened to the Governor in Council.

[22]            The applicant submits that the policy guidelines established with respect to citizenship revocation for immigrants who participated in World War II "[do] not appear to have been considered" by the Governor in Council and/or were not applied "evenly and fairly" in this case. At the time the impugned order was made, and more importantly at the time the Minister's report was submitted to the Governor in Council, the policy guidelines (Canada, Public Report Canada's War Crimes Program 2000-2001 at p. 3) stated that:

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 the 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.

[23]            This Court and the Federal Court of Appeal have on numerous occasions held that membership in an organization responsible for committing atrocities is sufficient for complicity where the organization in question is one with a single, brutal purpose, e.g. a death squad. As an interpreter for an extended period with EK 10a, a mobile killing squad, it was reasonably opened to the Governor in Council to consider that the applicant was complicit in the squad's activities as a support person and information provider. Accordingly, I find that the applicant falls squarely within the ambit of the policy guidelines: Bazargan v. Canada (Minister of Citizenship and Immigration (1996), 205 N.R. 282 (F.C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.); Alza v. Canada (Minister of Citizenship and Immigration) (1996), 110 F.T.R. 187; and Zadeh v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 210.

[24]            In the case at bar, there is no evidence that the policy guidelines, which are not binding, were not applied in a fair and consistent manner. In any event, the policy guidelines do not give rise to the doctrine of legitimate expectations. The courts have held on numerous occasions that there is no support in either Canadian or English law for the position that the doctrine of legitimate expectations can create substantive rights. Rather, the doctrine is merely a part of the rules of procedural fairness which can govern administrative bodies. The doctrine of legitimate expectations cannot be invoked to preclude the exercise of a statutory duty or to confer a statutorily defined status on a person who clearly does not fall within the statutory definition. That is, whereas a public authority may be bound by its undertakings as to the procedure it will follow, in no case can it place itself in conflict with its duty and forego the requirements of the law: Baker, supra, at 839-40; Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at 371-72; and Lidder v. Canada (Minister of Employment and Immigration) (C.A.), [1992] 2 F.C. 621 at para. 4.

[25]            In conclusion, the applicant has failed to establish any reviewable error coming within the ambit of paragraph 18.1(4) of the Federal Court Act in the decision of the Governor in Council to revoke the applicant's Canadian citizenship. Subsection 10(1) of the Act requires that the Governor in Council be "satisfied" that a person has obtained, retained, renounced or resumed citizenship under the Act "by false representation or fraud or by knowingly concealing material circumstances". In my view, the Governor in Council "performed its functions within the boundary of the parliamentary grant and in accordance with the terms of the parliamentary mandate". For the reasons I have stated, the decision was neither clearly wrong nor patently unreasonable.

                                                  ORDER

THIS COURT ORDERS that the application for judicial review of the decision to revoke the applicant's citizenship by Order in Council P.C. 2001-1227 dated July 12, 2001, made pursuant to subsection 10(1) of the Citizenship Act, be dismissed with costs.

                                                                                                     Judge     

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-1505-01       

STYLE OF CAUSE:              HELMUT OBERLANDER v. A.G.C.

DATE OF HEARING:                        JUNE 23, 2003

PLACE OF HEARING:                      TORONTO, ONTARIO

REASONS FOR ORDER:                THE HONOURABLE MR. JUSTICE MARTINEAU

DATED:                                                 August 1, 2003

APPEARANCES BY:

MS. BARBARA JACKMAN                                        FOR THE APPLICANT

MR. ERIC HAFEMANN

MR. PETER VITA                                                                         FOR THE RESPONDENT

MS. NEETA LOGSETTY

SOLICITORS OF RECORD:

MS. BARBARA JACKMAN                                        FOR THE APPLICANT

TORONTO, ONTARIO

MR. ERIC HAFEMANN

WATERLOO, ONTARIO       

MORRIS ROSENBERG                                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA