Justice a long time coming
By Peter Worthington
For the Toronto Sun
Wed, June 2, 2004
The Liberal government has inadvertently been dealt a crushing blow in its bid for re-election.
In a unanimous decision, the Federal Court of Appeal has thrown out the government's bid to deport Helmut Oberlander of Kitchener and restored his Canadian citizenship, which had been revoked earlier.
Oberlander, 80, is one of a handful of aging Ukrainians who were forced as teenagers to work for the Nazis during World War II and had their citizenship revoked and whom the government wants deported because they "probably" didn't reveal details of their past when they entered Canada 50 years ago.
The 28-page appeal court decision also constitutes a rebuke to Immigration and Citizenship Minister Anne McLellan and her predecessors and to Justice Minister Irwin Cotler, who is a former Nazi hunter.
The essence of the decision by Justices Robert Decary, Edgar Sexton and Brian Malone is the government did not follow its own guidelines of fairness for revocation of citizenship and deportation. In other words, it seemed a vendetta was being waged against Oberlander and, by implication, Wasyl Odynsky of Toronto. As teenagers in Ukraine in World War II, they were forced to become Nazi auxiliaries.
Superior Court Judge Andrew MacKay had earlier ruled there was no evidence that Oberlander (or Odynsky) had committed war crimes, but "on the balance of probabilities" they had misrepresented or did not disclose their wartime experiences on entering Canada, and therefore were liable for deportation. The government's stated policy is that "Canada will not become a safe haven" for war criminals.
The appeal court ruled that the governor in council (i.e. the cabinet) "cannot apply the war criminals policy to a person unless it first satisfies itself to use the very words of the policy that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity.' "
The appeal court found that the immigration minister and cabinet ignored the fact that Oberlander was not a war criminal. Also, the cabinet, which makes the final ruling, is obliged to weigh mitigating factors regarding the person's life in Canada but failed to do so. The appeal court justices questioned the propriety of the citizenship minister (McLellan) writing the report to cabinet urging deportation, then as a member of cabinet judging the report and approving it.
It meant the minister was both a prosecutor and judge and jury.
McLellan and cabinet ignored the personal submission and facts: "(W)here the personal interests consideration are so overwhelmingly favourable to the person concerned as they are here -- 50 years of irreproachable life in Canada -- one should expect the decision-maker to at least formally recognize the existence of those interests ... the decision (to revoke citizenship and deport) is patently unreasonable."
The court criticized the cabinet's failure to provide sufficient reasons for revoking citizenship and ordering deportation. That decision was "unreasonable." The court awarded costs to Oberlander.
The hero of this case, if that isn't too strong a word, is Liberal MP Andrew Telegdi (Kitchener-Waterloo), who resigned as parliamentary secretary to former immigration minister Elinor Caplan and has relentlessly opposed deportation without the right of appeal. "The legislation was persecution, not prosecution," Telegdi says. "Thanks to the appeal court, the dominoes are now falling the other way ... it's a tragedy ... a number of people have died in bankruptcy fighting this bad legislation." Hungarian-born Telegdi felt the revocation law without the right of appeal made second-class citizens out of naturalized Canadians.
Bernie Farber, executive director of the Canadian Jewish Congress which supported citizenship revocation and deportation without an appeal process, has criticized those who defended Oberlander and Odynsky.
"Justice has clearly been done," Farber wrote last year, before the appeal court ruling. "The courts have already spoken." Not quite.
The Federal Court of Appeal has now spoken -- in favour of Oberlander.
The government can now apply for the right to appeal --which it probably won't get. Justice, finally, seems to have been done.