December 30, 2019

Supreme Court Of Canada Dismisses Appeal of Helmut Oberlander V. Attorney General of Canada, 2019 FCA 64

After almost 25 years of litigation, the Canadian government has finally succeeded in its efforts to revoke the citizenship of Helmut Oberlander. The federal government alleged that Mr. Oberlander obtained Canadian citizenship by false representation or fraud or knowingly concealing material circumstances, namely his association with German forces during World War II. At the age of 17, Mr. Oberlander reported (he claims involuntarily) for service with the German army as an interpreter. He was assigned to Einsatzkommando or EK10a, a special police task force known for its particular brutality in its efforts to further the objectives of Nazi Germany. The Minister of Citizenship and Immigration claimed that Mr. Oberlander’s association with EK10a was not disclosed during his interview in the processing of his application for permanent residence to Canada.  

As stated, the judicial history of this case is extensive. Revocation proceedings against Mr. Oberlander where initiated in January 1995 by the then Minister of Citizenship and Immigration. These proceedings followed almost immediately after interviews of Mr. Oberlander which were conducted by the War Crimes Unit of the Royal Canadian Mounted Police, which was established by the federal government in the 1990s. Mr. Oberlander thereafter filed a notice requesting that the matter be heard by the Federal Court of Canada, instead of being heard by the Governor in Council. Having weighed the evidence carefully, Justice MacKay of the Federal Court of Canada (2000 F.C.J. No. 229) found that Mr. Oberlander was both admitted to Canada and obtained his Canadian citizenship by false representations or by knowingly concealing material circumstances.

The Governor in Council then revoked Mr. Oberlander’s citizenship in 2001. That decision was set aside by the Federal Court of Appeal (2004 FCA 213), and the matter was remitted to the Governor in Council for redetermination. Mr. Oberlander’s citizenship was again revoked in 2007 following reconsideration by the Governor in Council, during which it was determined that Helmut was complicit in the war crimes perpetrated by Ek10a. While both the Federal Court and Federal Court of Appeal upheld this decision as reasonable, the latter court determined that the Governor in Council was required to consider whether or not Mr. Oberlander was not complicit but was under duress. The matter was once again remitted to the Governor in Council for reconsideration. In 2012, the Governor in Council determined that Mr. Oberlander’s defense of duress had not been established. His citizenship was again revoked. Mr. Oberlander sought judicial review of this application, which was refused. The Federal Court of Appeal then determined that the decision of the Governor in Council was unreasonable because it failed to assess whether Mr. Oberlander made a significant and knowing contribution to the crime or purpose of Ek10a and was, as a result, truly complicit. The appeal was thus allowed and the decision was remitted to the Governor in Council for redetermination once again.

In 2018, the Federal Court of Canada considered Mr. Oberlander’s application for judicial review of the most recent (and ultimately successful) decision of the Governor in Council revoking his citizenship, dated 20 June 2017. The Federal Court determined both that the Governor in Council had established the requirements for complicity and that Mr. Oberlander had obtained his citizenship through false representation and knowingly concealing material circumstances. This decision was ultimately upheld by the Federal Court of Appeal and the Supreme Court of Canada. It continues to remain unclear when and if Mr. Oberlander will be removed from Canada. He no longer has citizenship in any other country and is thus stateless. The ramifications of these decisions for the interpretation of citizenship legislation have yet to be thoroughly discussed. Here we can simply note that, despite the extensive litigation (and keeping in mind Ezakola before it), we are still left to question what actually amounts to complicity? How is this distinct from membership? And how do assessments of complicity interact with claims of false representations or knowingly concealing material circumstances