Canada (Minister of Citizenship and Immigration) v. Oberlander, (2000) 185 F.T.R. 41 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: February 28, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 185 F.T.R. 41 (TD)

Can. (M.C.I.) v. Oberlander (2000), 185 F.T.R. 41 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. MR.034

In The Matter of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;

And In The Matter of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended;

And In The Matter of a reference to the Court pursuant to Rule 920 of the Federal Court Rules.

The Minister of Citizenship and Immigration (applicant) v. Helmut Oberlander (respondent)

(T-866-95)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Oberlander

Federal Court of Canada

Trial Division

MacKay, J.

February 28, 2000.

Summary:

The Minister issued a notice regarding revocation of citizenship to Oberlander, advising him that the Minister intended to make a report to the Governor in Council on the grounds that he was admitted to Canada for permanent residence and had obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances. Oberlander requested a refer­ence.

The Federal Court of Canada, Trial Divi­sion, determined that Oberlander was ad­mitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances.

Aliens - Topic 2504

Naturalization - General - Revocation - A reference was held regarding a notice of revocation of citizenship issued by the Minister to Oberlander on the ground that he obtained permanent residence (early 1950's) and Canadian citizenship by false representations or knowingly concealing material circumstances - The Minister asserted that Oberlander failed to divulge to immigration and citizenship officials his German Sicherheitspolizei und SD and Einsatzkommando 10A membership during the Second World War and his par­ticipation in civilian executions - Ober­lander, who was of German descent living in the Ukraine, served as an auxiliary interpreter for the Einsatzkommando 10a and then as an infantryman - He was en­gaged in anti-partisan missions - SD oper­ated as mobile killing units responsible for the execution of civilians - Oberlander asserted, inter alia, that he had no knowl­edge of his unit's name until 1970 and he was not asked by immigration officials of his wartime experience - The Federal Court of Canada, Trial Division, agreed with the Minister.

Aliens - Topic 2504

Naturalization - General - Revocation - The Federal Court of Canada, Trial Divi­sion, stated: "[s]ection 18 of the current [Citizenship] Act provides for the notice of revocation by the Minister and for the basic process which brings this matter before the court, and s. 18(1)(b) establishes the task of the court, to decide whether, in this case, Mr. Oberlander 'has obtained ... citizenship by false representation or fraud or by knowingly concealing material cir­cumstances'. Under s. 10 of the Act, the Governor in Council, following receipt of a report from the Minister, if satisfied that a person has obtained citizenship by false representation or fraud or knowingly con­cealing material circumstances, may order that the person cease to be a citizen. ... Although there was no equivalent to s. 10(2) in the former Act as it applied in 1960, in my opinion s. 10(2) simply pro­vides for an evidentiary presumption, a matter of procedure. ... the application of s. 10(2), which concerns procedure, is provided for under the Interpretation Act, s. 44(d)(iii)" - See paragraphs 176 to 179.

Aliens - Topic 2504

Naturalization - General - Revocation - The Federal Court of Canada, Trial Divi­sion, stated: "[a]s for the burden of proof, it rests with the applicant. Counsel for the applicant suggested that as in other cases the burden may shift, but that simply relates to the evidentiary burden which implies that the defendant may be unwise not to adduce some evidence in response to the case of the applicant. Ultimately, in this case, the overall burden of proof is the applicant Minister's. As to the standard of proof, McKeown, J., in Bogutin ... set out the standard, which has now been accepted ... in the following terms: 'I apply the civil standard of proof on a balance of probabil­ities but I must scrutinize the evidence with greater care because of the serious allegations to be established by the proof that is offered.' That standard I endorse and here have applied." - See paragraphs 186 to 187.

Aliens - Topic 2548

Naturalization - Disqualifications - Making false representation or concealing material circumstances - [See all Aliens - Topic 2504 ].

Words and Phrases

Collaborator - The Federal Court of Canada, Trial Division, discussed the meaning of the word "collaborator" - See paragraphs 117 to 119.

Cases Noticed:

Canada (Minister of Citizenship and Im­migration) v. Tobiass et al., [1996] 2 F.C. 729; 116 F.T.R. 69 (T.D.), refd to. [para. 6, footnote 5].

Canada (Minister of Citizenship and Im­migration) v. Tobiass et al., [1997] 1 F.C. 828; 208 N.R. 21; 142 D.L.R.(4th) 270 (F.C.A.), refd to. [para. 6, footnote 6].

Canada (Minister of Citizenship and Im­migration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81; 10 C.R.(5th) 163; 118 C.C.C.(3d) 443, refd to. [para. 6, footnote 7].

Canada (Minister of Citizenship and Im­migration) v. Copeland, [1998] 2 F.C. 493; 140 F.T.R. 183 (T.D.), refd to. [para. 9, footnote 8].

Canada (Secretary of State) v. Luitjens (1993), 142 N.R. 173 (F.C.A.), refd to. [para. 9, footnote 8].

Canada (Secretary of State) v. Delezos, [1989] 1 F.C. 297; 22 F.T.R. 135 (T.D.), refd to. [para. 9, footnote 8].

Canada (Minister of Citizenship and Im­migration) v. Dueck, [1999] 3 F.C. 203; 155 F.T.R. 1 (T.D.), refd to. [para. 85, footnote 49].

Canada (Minister of Citizenship and Im­migration) v. Katriuk (1999), 156 F.T.R. 161 (T.D.), refd to. [para. 85, footnote 49].

Canada (Minister of Citizenship and Im­migration) v. Kisluk (1999), 169 F.T.R. 161; 50 Imm. L.R.(2d) 1 (T.D.), refd to. [para. 85, footnote 49].

Canada (Secretary of State) v. Luitjens, [1989] 2 F.C. 125 (F.C.T.D.), refd to. [para. 176, footnote 85].

Canada (Minister of Citizenship and Im­migration) v. Bogutin (1998), 144 F.T.R. 1 (T.D.), refd to. [para. 185, footnote 94].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (May 1, 1947), p. 2644 [para. 88, footnote 52].

Commission of Inquiry on War Criminials (Deschênes Commission) (1985-86), generally [para. 97, footnote 63].

Deschênes Commission - see Commission of Inquiry on War Criminals (1985-86).

Counsel:

Peter Vita, Q.C., Robert Goldstein and Neeta Logsetty, for the applicant;

Eric Hafemann, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the applicant;

Eric Hafemann, Kitchener, Ontario, for the respondent.

This matter was heard in Ottawa, Kitch­ener and Toronto, Ontario, and Vancouver, British Columbia, on August 24 to 26 and 31, 1998, September 1 to 3, 10, 14, 15 and 17 to 19, 1998, and December 21 to 23, 1998, before MacKay, J., of the Federal Court of Canada, Trial Division, who deliv­ered the following judgment on February 28, 2000, in Ottawa, Ontario.