Attorney General of Canada v. Helmut Oberlander

(Federal Court) (Civil) (By Leave)


Citizenship - Canadian citizens.


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Citizenship — Canadian citizens — Revocation of citizenship — Allegation that Canadian citizenship was obtained by false representation or knowing concealment of material circumstances — What is the test for duress in immigration proceedings — Did the Court’s decision in Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, change the proportionality branch of the test for duress — What is the proper analytical framework for assessing complicity and duress?

Mr. Oberlander was born in Halbstadt, Ukraine in 1924, and he obtained his Canadian citizenship in 1960. In 1995, he received a notice that the Minister of Citizenship and Immigration’s intention to make a report to the Governor in Council recommending revocation of his Canadian citizenship. The Minister alleged that Mr. Oberlander had failed to disclose his activities during World War II to Canadian immigration and citizenship officials. At Mr. Oberlander’s request, the Minister referred the case to the Federal Court to determine whether he had obtained his citizenship on the basis of a false representation, fraud, or by knowingly concealing material circumstances. The Federal Court found that Mr. Oberlander had served as an interpreter for the Einsatzkommando 10a, a unit involved in war crimes, and that Mr. Oberlander had obtained his Canadian citizenship by making a false representation or by knowingly concealing material circumstances, and facts as to the nature of his service during World War II: (2000), 185 F.T.R. 41. This decision is final and non-reviewable. The Minister then recommended that the Governor in Council revoke Mr. Oberlander’s Canadian citizenship. It has now been revoked by the Governor in Council on three occasions. Each time, it was referred back for reconsideration by the Federal Court of Appeal. Subsequent to the latest revocation, but before the Federal Court decision, this Court decided Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, which set out a new test for complicity.

The Federal Court found no reviewable error and dismissed the application for judicial review. The Federal Court of Appeal allowed the appeal, set aside the judgment of the Federal Court and, pronouncing the judgment that should have been made, remitted the issues of complicity and duress to the Governor in Council for redetermination in accordance with the law.