Oberlander v. Canada (Attorney General), (2009) 396 N.R. 146 (FCA)

• Judge: Sharlow, Layden-Stevenson and Ryer, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 27, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 396 N.R. 146 (FCA);2009 FCA 330

Oberlander v. Can. (A.G.) (2009), 396 N.R. 146 (FCA)

MLB headnote and full text

Temp. Cite: [2009] N.R. TBEd. NO.044

Helmut Oberlander (appellant) v. The Attorney General of Canada (respondent)

(A-589-08; 2009 FCA 330)

Indexed As: Oberlander v. Canada (Attorney General)

Federal Court of Appeal

Sharlow, Layden-Stevenson and Ryer, JJ.A.

November 17, 2009.

Summary:

The Governor-in-Council (GIC) issued an order-in-council revoking Oberlander's citizenship. Oberlander applied for judicial review.

The Federal Court, in a decision reported 336 F.T.R. 179, dismissed the application. Oberlander appealed.

The Federal Court of Appeal allowed the appeal in part and remitted the matter to the GIC to consider the issue of duress, notwithstanding that the issue had not been previously raised. Sharlow, J.A., dissenting, opined that it was too late to raise that issue.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Crown - Topic 545 ].

Aliens - Topic 2504

Naturalization - General - Revocation - The Governor-in-Council (GIC) issued an order-in-council revoking Oberlander's citizenship on the basis that he obtained it by knowingly concealing material circumstances (i.e., the fact that he had been an auxiliary of a Nazi death squad during World War II where he served as an interpreter) - Oberlander applied for judicial review, arguing that the GIC erred in finding that there were reasonable grounds to believe Oberlander was complicit in war crimes and as a consequence, was subject to Canada's "no safe haven" policy - Further, the GIC did not properly consider his personal interests - An applications judge dismissed the application - Oberlander appealed - The Federal Court of Appeal allowed the appeal in part - The court held that the applications judge made no error in applying the standard of review when he concluded that the decision respecting complicity and Oberlander's personal interests was reasonable - However, according to the jurisprudence and applicable Ministerial guidelines, the justification of duress was available to absolve complicity - Further, the issue of conscription with respect to a limited brutal purpose organization was a factor to be examined in relation to justification (i.e., where complicity was made out in relation to a limited brutal purpose organization, the facts could nevertheless give rise to the justification of duress) - Each case turned on its own facts - Notwithstanding that Oberlander did not plead duress in this case, there was sufficient evidence in the record to require the GIC to address that issue - Therefore, the matter was remitted to the GIC for that purpose - See paragraphs 18 to 41.

Aliens - Topic 2504

Naturalization - General - Revocation - [See Crown - Topic 545 ].

Crown - Topic 545

Orders-in-Council - Judicial review - After considering a report by the Minister of Citizenship and Immigration, the Governor-in-Council (GIC), issued an order-in- council revoking Oberlander's citizenship on the basis that he obtained it by knowingly concealing his World War II activities - Oberlander applied for judicial review, arguing that the GIC erred in finding that there were reasonable grounds to believe that he was complicit in war crimes or crimes against humanity and as a consequence, was subject to Canada's "no safe haven" policy for such individuals, and, that the GIC did not properly consider his personal interests in its revocation of citizenship - An applications judge discussed the standard of review, concluding that the standard of review of the revocation decision was reasonableness - Oberlander appealed - The Federal Court of Appeal opined that the applications judge correctly identified the applicable standard of review - See paragraphs 9 to 12.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 11].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al., [2006] 3 F.C.R. 610; 345 N.R. 374; 2006 FCA 31, refd to. [para. 11].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 11].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 18].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 18].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (F.C.A.), refd to. [para. 18].

Bazargan v. Ministre de l'Emploi et de l'Immigration (1996), 205 N.R. 282 (F.C.A.), refd to. [para. 18].

Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66; 252 N.R. 380 (F.C.A.), refd to. [para. 18].

Harb v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2003), 302 N.R. 178; 2003 FCA 39, refd to. [para. 18].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 18].

Zazai v. Canada (Minister of Citizenship and Immigration) (2005), 339 N.R. 201; 2005 FCA 303, refd to. [para. 18].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 254 D.L.R.(4th) 200, refd to. [para. 20].

Equizabal v. Minister of Employment and Immigration, [1994] 3 F.C. 514; 170 N.R. 329 (F.C.A.), refd to. [para. 24].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35; 83 A.C.W.S.(3d) 264 (T.D.), refd to. [para. 37].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 23; 373 N.R. 339; 236 O.A.C. 371, refd to. [para. 40].

Authors and Works Noticed:

Canada, Public Works and Government Services, Citizenship and Immigration Manual, ENF 18: War crimes and crimes against humanity, generally [para. 19].

Counsel:

Barbara Jackman and Ronald Poulton, for the appellant;

John Provart, Catherine Vasilaros and Tessa Kroeker, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard in Toronto, Ontario, on October 27, 2009, before Sharlow, Layden-Stevenson and Ryer, JJ.A., of the Federal Court of Appeal. The following decision was delivered by the court on November 17, 2009, including the following opinions:

Layden-Stevenson, J.A. (Ryer, J.A., concurring) - see paragraphs 1 to 41;

Sharlow, J.A., dissenting - see paragraphs 42 to 44.