Posted Wednesday, May 5, 2004

Toronto, May 4, 2004

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Deportation on hold

By Peter Worthington

THE Liberal government's policy of deporting certain people without appeal or legal representation has been dealt a devastating setback.

Mr. Justice R. D. Reilly of Ontario's Superior Court has ordered a "stay" in proceedings to strip Helmut Oberlander of his citizenship and deport him.

While the government is appealing the ruling, Justice Reilly's findings throw into doubt the whole process of how citizenship is revoked and subsequent deportation.

The targets of a succession of immigration ministers are mostly aging Ukrainians and Germans who as teenagers were conscripted or forced to work for Nazi units in World War II.

None have committed war crimes as such, but all are deemed to have "probably" lied or omitted telling immigration officials of their background when entering Canada. The word "probably " is necessary because there is no proof. Records dating back 50 years have been destroyed.

Justice Reilly was dealing specifically with the case of Oberlander, 80, who lives in Kitchener. While he passed no judgment on the truth of charges, Justice Reilly had plenty to say about the process whereby citizenship is revoked.

The government wanted quashed Oberlander's motion that the case against him should be tossed out. The judge disagreed.

Justice Reilly noted it was the minister of citizenship and immigration who made the report recommending revocation and deportation. This was submitted to cabinet which authorized at least four ministers to make a decision -- one of them being the minister of immigration.

And the whole process was conducted in secrecy, which the government lawyer, Donald MacIntosh, insisted was necessary for cabinet confidentiality. Although Oberlander sought to make direct presentation to the tribunal, this was refused -- even though his accuser who wrote the report urging revocation of citizenship was on the panel. In effect, the report was "rubber-stamped."

As well, Oberlander's fate was decided at a secret tribunal by unidentified ministers and with no right of appeal.

Justice Reilly seemed to agree with Oberlander's lawyer, Eric Hafemann, that such secrecy was "an affront to any proper concept of fundamental justice," as did the whole process.

The issue is: Confidentiality amounting to complete secrecy has no place in a proceeding resulting in the revocation of citizenship.

Justice Reilly said: "I can think of no consequence apart from ... imprisonment in a penitentiary, which would be more significant to a responsible citizen than the loss of that citizenship ... revocation must accord with the principle of fundamental justice."

He noted that although Oberlander had been an upstanding citizen for over 40 years, since the revocation of citizenship among the freedoms he has lost are mobility and "the right to vote or ... to run for office."

Mr. Justice Andrew MacKay who investigated the charges, found that Oberlander (at age 17) had worked as a translator for Nazi death squads, but no evidence that he was a former member in the Sicherheitzpolizei un SD (a Nazi death squad), and "no evidence he participated in the execution of civilians," and no evidence he was involved in war crimes or crimes against humanity was found. However, he was a translator in Einsatzkommando 10A, a notorious killing machine.

Justice MacKay has noted that Oberlander "probably misrepresented such membership when he applied for immigration to Canada."

In his ruling, Justice Reilly noted: "I grant relief to the applicant, Helmut Oberlander ... (and) dismiss the government's motion for a stay of Mr. Oberlander's motion and application."

He added that Oberlander "would be at risk of suffering irreparable harm if the inquiry were to continue before issues raised by the applicatio n are dealt with."

If Justice Reilly's findings stands, the judgment will apply to others in a similar situation -- notably Toronto's Wasyl Olynsky who as a Ukrainian teenager was forced into a Nazi unit on pain of death to his family.

Rather than appeal, the government should go straight to the Supreme Court of Canada for a ruling.

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