Oberlander v. Canada (Attorney General), 2018 FC 947

[1] The Governor in Council [GIC] revoked Mr. Oberlander’s citizenship because of the nature of his involvement in the activities of a Nazi Schutzstaffell [SS] killing squad - Einsatzkommando 10a [Ek10a]. He had previously been found to have significantly misrepresented his wartime activities when he and his wife applied to enter Canada. He failed to disclose his service as an interpreter with this SS killing squad.

[2] This is the judicial review of that GIC decision – and the fourth attempt by Canada to strip Oberlander of his citizenship. The GIC concluded that Oberlander voluntarily made a knowing and significant contribution to the crimes and criminal purpose of this SS killing squad.

[3] In the previous Federal Court of Appeal decision – Oberlander v Canada (Attorney General), 2016 FCA 52, [2016] 4 FCR 55 [FCA-3], that Court remitted the matter back to the GIC for redetermination on the issue of complicity under the framework of Ezokola v Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 SCR 678 [Ezokola] and if found complicit, to reassess his defence of duress. The Court of Appeal directed (at para 22):

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 Ek10a.

In so doing, the earlier decisions on complicity by virtue of membership are superseded. This is a new analytical framework.

[4] It is uncontested that Oberlander obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances by failing to disclose involvement in the SS at the time of his immigration screening. There is no doubt that to have done so would have resulted in the rejection of his citizenship application.

[5] This type of material misrepresentation, as found by Justice MacKay in Canada (Minister of Citizenship and Immigration) v Oberlander (2000), 2000 CanLII 14968 (FC), 185 FTR 41 (FCTD), 95 ACWS (3d) 614 [MacKay Decision], allowed the GIC to revoke Oberlander’s citizenship pursuant to s 10 of the Citizenship Act, RSC 1985, c C-29.

[6] At issue and a limitation on the GIC’s power of revocation, throughout the Oberlander saga, is Canada’s policy to pursue the revocation of citizenship for World War II matters in only those cases for which there is evidence of complicity in war crimes or crimes against humanity [the Policy].

[7] In the decision at issue in this case, the GIC found that the Applicant was sufficiently complicit (as those words are now interpreted pursuant to the Supreme Court of Canada decision in Ezokola), and that the defence of duress was not engaged.

[8] The relevant legislation is set forth in Appendix A to these Reasons.