r v. Canada, 2016 FCA 52

[2016] 4 F.C.R. 55 A-51-15 2016 FCA 52 Helmut Oberlander (Appellant) v. The Attorney General of Canada (Respondent) Indexed as: Oberlander v. Canada (Attorney General) Federal Court of Appeal, Dawson, Near and Boivin JJ.A.—Toronto, February 1; Ottawa, February 15, 2016.

Citizenship and Immigration — Status in Canada — Citizens — Appeal from Federal Court decision dismissing appellant’s applicationfor judicial review of Governor in Council’s decision revoking appellant’s citizenship for third time — Appellant’s citizenship previouslyrevoked on ground obtained on basis of making false representation, acting in fraudulent manner or by knowingly concealing materialcircumstances — Federal Court finding in particular that, regarding complicity, pre-conditions for issue estoppel met; that issuepreviously decided by Federal Court of Appeal with decision being final; that appellant not establishing grounds allowing Federal Courtto exercise discretion to return complicity issue for reconsideration — Whether Federal Court erring in principle by concluding thatappellant not establishing grounds sufficient to allow it to exercise discretion to remit issue of complicity for redetermination —Regarding Federal Court’s analysis on exercise of discretion, consideration of impact of maintaining previous finding of complicity incircumstances where finding directly related to current determination of duress missing from analysis — Governor in Councilconsidering requirement of proportionality in decision under review — In circumstances herein, application of issue estoppel workinginjustice to appellant such that Federal Court erring in principle in applying doctrine — Appellant entitled to determination of extent towhich making significant, knowing contribution to crime or criminal purpose of Einsatzkommando 10a during World War II — Onlythen could reasonable determination be made as to whether whatever harm appellant facing more serious than harm inflicted on othersthrough appellant’s complicity — Appeal allowed.

This was an appeal from a Federal Court decision dismissing the appellant’s application for judicial review of a decision of the Governorin Council revoking the appellant’s citizenship. This was the Governor in Council’s third decision revoking the appellant’s citizenship. In1995, proceedings were commenced to revoke the appellant’s Canadian citizenship on the ground that he obtained such citizenship onthe basis of making a false representation, acting in a fraudulent manner or by knowingly concealing material circumstances. Since then,the revocation proceeding has been both contested and protracted.

Following the decision of the majority of the Court remitting thematter to the Governor in Council for consideration of the issue of duress, in 2012 the Governor in Council considered whether theappellant’s assertion of duress was sufficient to excuse his complicity in activities perpetrated by the Einsatzkommando 10a (Ek 10a)during World War II. In its most recent decision, the Governor in Council decided the defence of duress had not been established.

In dismissing the appellant’s application for judicial review, the Federal Court found in particular that, regarding the issue of complicity,all the pre-conditions for issue estoppel were met and that this issue was previously decided by the Federal Court of Appeal with itsdecision being final; that the appellant had not established grounds that would allow it to exercise its discretion to return the issue ofcomplicity for reconsideration. It noted that the overarching consideration in exercising discretion is whether the interests of justicerequire the exercise of discretion.

The Federal Court also found that the process was procedurally fair to the appellant and that theGovernor in Council’s decision regarding duress was reasonable. The issue was whether the Federal Court erred in principle by concluding that the appellant had not established grounds sufficient toallow it to exercise its discretion to remit the issue of complicity for redetermination. Held, the appeal should be allowed. Regarding the issue of the exercise of discretion, the Federal Court correctly noted that the overarching consideration is whether theinterests of justice require the exercise of discretion.

The Federal Court provided two reasons why the interests of justice did not requirerelitigation of the complicity issue including that the appellant had failed to establish that the decision finding him complicit was clearlywrong. However, missing from the Federal Court’s analysis was consideration of the impact of maintaining the previous finding ofcomplicity in circumstances where that finding was directly related to the current determination of duress.

The link between duress andcomplicity is well-settled at law because the defence of duress requires proportionality between the harm threatened against the personconcerned and the harm inflicted by that person, whether directly or through complicity. In the decision under review, the Governor inCouncil considered the requirement of proportionality. In the circumstances, the application of issue estoppel worked an injustice to theappellant such that the Federal Court erred in principle in applying the doctrine.

The appellant was entitled to a determination of theextent to which he made a significant and knowing contribution to the crime or criminal purpose of the Ek 10a. Only then could areasonable determination be made as to whether whatever harm he faced was more serious than the harm inflicted on others through hiscomplicity. CASES CITED APPLIED: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C.R. 306, (1992), (FCA), 89 D.L.R. (4th)173 (C.A.); Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678. CONSIDERED:

Canada (Minister of Citizenship and Immigration ) v. Oberlander, , 185 F.T.R. 41 (F.C.T.D.); Oberlander v. Canada(Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3; Oberlander v. Canada (Attorney General), 2009 FCA 330, [2010] 4 F.C.R. 395,revg in

part 2008 FC 1200, [2009] 3 F.C.R. 358; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460. REFERRED TO: Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, [2015] 3 S.C.R. 801; Soulos v. Korkontzilas, (SCC),[1997] 2 S.C.R. 217, (1997), 32 O.R. (3d) 716; R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14. APPEAL from a Federal Court decision (2015 FC 46, [2016] 1 F.C.R. 56) dismissing the appellant’s application for judicial review of adecision of the Governor in Council revoking the appellant’s citizenship for a third time. Appeal allowed.

APPEARANCES Ronald Poulton and Barbara Jackman for appellant. Angela Marinos and Catherine Vasilaros for respondent. SOLICITORS OF RECORD Poulton Law Office, Toronto, and Jackman, Nazami & Associates, Toronto, for appellant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment rendered in English by Dawson J.A.: I.

Introduction [1] In 1995, proceedings were commenced to revoke the appellant’s Canadian citizenship on the ground that he obtained suchcitizenship on the basis of making a false representation, acting in a fraudulent manner or by knowingly concealing materialcircumstances. Since then, the revocation proceeding has been both contested and protracted, as illustrated by the following brief historyof the proceeding: (

i) In 2000, Justice MacKay of the Federal Court issued thoughtful and comprehensive reasons in which he concluded that theappellant obtained his Canadian citizenship by making a false representation or by knowingly concealing material circumstances([Canada (Minister of Citizenship and Immigration) v. Oberlander], , 185 F.T.R. 41 (F.C.T.D.)). In the course of hisreasons, Justice MacKay made findings of fact as to the nature of the appellant’s wartime service during World War II. (ii) Following this decision, in 2001, the Governor in Council revoked the appellant’s citizenship.

Subsequently, this Court set asidethe decision of the Governor in Council and remitted the matter back to the Governor in Council for a new determination (2004 FCA213, [2005] 1 F.C.R. 3). (iii) In 2007, after reconsidering the matter, the Governor in Council again revoked the appellant’s citizenship. Thereafter, this Courtupheld the finding of the Federal Court [2008 FC 1200, [2009] 3 F.C.R. 358, at paragraph 19] that the decision of the Governor inCouncil that the appellant had been complicit in war crimes perpetrated by the Einsatzkommando 10a (Ek 10a) during World War II wasreasonable.

However, a majority of this Court found that the Governor in Council was obliged to consider the issue of duress. Thus, theCourt allowed the appellant’s appeal from the decision of the Federal Court in part and remitted the matter to the Governor in Councilfor consideration of the issue of duress (2009 FCA 330, [2010] 4 F.C.R. 395, at paragraphs 2 and 41). (iv) Following the decision of the majority of this Court, in 2012 the Governor in Council considered whether the appellant’sassertion of duress was sufficient to excuse his complicity in the activities of Ek 10a.

The Governor in Council decided the defence ofduress had not been established and therefore it once again revoked the appellant’s citizenship. [2] The appellant brought an application in the Federal Court for judicial review of this third decision revoking his citizenship. Forreasons cited as 2015 FC 46 [2016] 1 F.C.R. 56, a judge of the Federal Court dismissed the application for judicial review. This is anappeal from that decision. II.

The Context in which this Appeal Arises [3] At this point it is helpful to explain the very unique circumstances before the Court on this appeal. [4] As explained above, in its second decision revoking the appellant’s citizenship in 2007, the Governor in Council found that theappellant was complicit in war crimes committed by the Ek 10a. In rendering this decision, the Governor in Council relied upon the legaltest for complicity articulated by this Court in Ramirez v.

Canada (Minister of Employment and Immigration), [1992] 2 F.C.R. 306.There, this Court held that “no one can ‘commit’ international crimes without personal and knowing participation” (Ramirez, page 317).When considering what degree of complicity is required in order to be an accomplice or abettor, this Court concluded that “meremembership in an organization which from time to time commits international offences is not normally sufficient for exclusion fromrefugee status” (Ramirez, page 317).

This said, the Court added the following caveat: “[i]t seems apparent, however, that where anorganization is principally directed to a limited, brutal purpose … mere membership may by necessity involve personal and knowingparticipation in persecutorial acts” (Ramirez, page 317). Thus, complicity through association rested “on the existence of a sharedcommon purpose and the knowledge that all of the parties in question may have of it” (Ramirez, page 318). [5] Applying this jurisprudence in its second decision, the Governor in Council asked whether “there was evidence permitting a

finding that Oberlander could be suspected of being complicit in the activities of a limited and brutal purpose organization” [see: 2008FC 1200, [2009] 3 F.C.R. 358, at paragraph 19].

The Governor in Council went on to find that the appellant was a member of Ek 10a andthat through such membership he “could be suspected of being complicit in the activities of a limited and brutal purpose organization”. [6] In upholding the Governor in Council’s finding of complicity, this Court also applied Ramirez, stating the law to be thatmembership in a limited brutal purpose organization creates a presumption of complicity which can be rebutted by evidence that therewas no knowledge of the organization’s purpose or no direct or indirect involvement in its acts (2009 FCA 330, at paragraph 18).

Basedon findings of fact made by Justice MacKay, the Court found the appellant had not rebutted the presumption of complicity: the appellanthad knowledge of the functions of Ek 10a and had indirectly served its purpose (2009 FCA 330, at paragraphs 21 and 22). [7] Subsequent to the decision of the Governor in Council finding the appellant to have been complicit in the activities of Ek 10a,and the decision of this Court upholding the reasonableness of the Governor in Council’s decision on complicity, the Supreme Court ofCanada found it necessary to rearticulate the test relevant to determinations of complicity: Ezokola v.

Canada (Citizenship andImmigration), 2013 SCC 40, [2013] 2 S.C.R. 678. In the view of the Supreme Court, while international law recognizes a broad conceptof complicity, “individuals will not be held liable for crimes committed by a group simply because they are associated with that group, orbecause they passively acquiesced to the group’s criminal purpose” (Ezokola, at paragraph 68). Thus, to be complicit, “there must beserious reasons for considering” that the person concerned “voluntarily made a significant and knowing contribution to theorganization’s crime or criminal purpose” (Ezokola, at paragraph 84).

III.

The Decision of the Federal Court [8] In dismissing the appellant’s application for judicial review, the Federal Court made four key findings. [9] First, the Federal Court found that with respect to the issue of complicity, all of the pre-conditions for issue estoppel were met:the complicity issue was previously decided by this Court; the decision of this Court was final; and, the parties to the proceedings werethe same (reasons, paragraph 96). [10] Second, the Federal Court found the appellant did not establish grounds that would allow it to exercise its discretion to return theissue of complicity for reconsideration (reasons, paragraph 113). [11] Next, the Federal Court found the process was procedurally fair to the appellant (reasons, paragraph 204). [12] Finally, the Federal Court found the decision of the Governor in Council in respect of duress was reasonable (reasons, paragraph231).

IV. The Issue on Appeal [13] While the appellant challenges each of the above findings of the Federal Court, in my view, one issue is determinative: did theFederal Court err in principle by concluding that the appellant had not established grounds sufficient to allow it to exercise its discretionto remit the issue of complicity for redetermination? V. Standard of Review [14] The decision of the Federal Court as to the exercise of its discretion is one that should be afforded deference.

However, this Courtmay intervene if the discretion is exercised on the basis of an erroneous principle (Canadian Imperial Bank of Commerce v. Green, 2015SCC 60, [2015] 3 S.C.R. 801, at paragraph 95; citing Soulos v. Korkontzilas, (SCC), [1997] 2 S.C.R. 217, at paragraph54). VI. Application of the Standard of Review [15] The Federal Court’s analysis of the issue of the exercise of discretion is found in paragraphs 104 to 113 of its reasons.

The Courtbegan by acknowledging that even where the criteria for issue estoppel are met, “the Court retains a residual discretion to determine thatthe doctrine should not be applied where, taking into account the entirety of the circumstances, this could lead to an injustice” (reasons,paragraph 104). [16] After discussing the principles said to apply to the exercise of discretion, the Court correctly noted that the overarchingconsideration is whether the interests of justice require the exercise of discretion. Citing Danyluk v.

Ainsworth Technologies Inc., 2001SCC 44, [2001] 2 S.C.R. 460, at paragraph 80, the Court noted that it was required to “stand back and, taking into account the entirety ofthe circumstances, consider whether the application of issue estoppel in the particular case would work an injustice” (reasons, paragraph109). [17] The Court then gave two reasons why the interests of justice did not require relitigation of the complicity issue. First, theappellant failed to challenge this Court’s application of Ramirez when it upheld the decision that found him to have been complicit in warcrimes.

The Federal Court found no injustice arose when the appellant chose not to avail himself of that opportunity (reasons, paragraph111). Second, the appellant failed to establish that the decision finding him complicit was “clearly wrong” (reasons, paragraph 112). [18] In my respectful view, missing from the Federal Court’s analysis was consideration of the impact of maintaining the previousfinding of complicity in circumstances where that finding was directly related to the current determination of duress. [19] The link between duress and complicity is well-settled at law.

This is so because the defence of duress requires proportionalitybetween the harm threatened against the person concerned and the harm inflicted by that person—whether directly or through complicity(see, for example, Ramirez, at pages 327 and 328; R. v. Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14, at paragraphs 53 to 55 and 70 to 74). [20] In the decision under review, the Governor in Council considered the requirement of proportionality, noting that:

(

i) The potential harm the appellant would have faced by attempting to protest or disobey an order must be more serious than the harm to the victims brought about by the appellant’s actions (reasons, paragraph 47). (ii) Justice MacKay found that the Ek 10a was a killing squad.

Thus, the appellant was required to show that he feared death in order to justify his complicity in the actions of the killing squad (reasons, paragraph 48). (iii) The record did not support a conclusion that the appellant faced a risk of execution. “To suggest that an unsubstantiated risk of harm is no less than the atrocities of the Nazi regime is abhorrent” (reasons, paragraph 56). [ 21 ] As explained above, in Ezokola the Supreme Court renounced a test for complicity that had “inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity” ( Ezokola , paragraph 79 ).

As the Court noted, “a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles” ( Ezokola , paragraph 81 ). [ 22 ] In this circumstance, I am satisfied that the application of issue estoppel worked an injustice to the appellant such that the Federal Court erred in principle in applying the doctrine. 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 Ek 10a.

Only then could a reasonable determination be made as to whether whatever harm he faced was more serious than the harm inflicted on others through his complicity. VII. Conclusion [ 23 ] For these reasons, I would allow the appeal and set aside the judgment of the Federal Court, with costs both in this Court and the Federal Court. Pronouncing the judgment that should have been made, I would remit the issues of complicity and duress to the Governor in Council for redetermination in accordance with the law. Near J.A.: I agree. Boivin J.A. : I agree.