r v. Canada, 2015 FC 46

T-2127-12 2015 FC 46 Helmut Oberlander ( Applicant ) v. The Attorney General of Canada ( Respondent ) Indexed as: Oberlander v. Canada (Attorney General) Federal Court, Russell J.—Toronto, February 18, 2014; Ottawa, January 13, 2015.

Citizenship and Immigration — Status in Canada — Citizens — Judicial review of Order in Council P.C. 2012-1137 revoking applicant’s Canadian citizenship under Citizenship Act , s. 10 — Applicant, Ukrainian, obtaining Canadian citizenship in 1960 — Receiving notice that Minister of Citizenship and Immigration intending to make report to Governor in Council (GIC) recommending revocation of his Canadian citizenship — Minister alleging that applicant failing to disclose activities during World War II to Canadian immigration, citizenship officials — Case referred to Federal Court to determine whether applicant obtaining Canadian citizenship by false representations, fraud or by knowingly concealing material circumstances — Federal Court finding that applicant obtaining citizenship by false representation or by knowingly concealing material circumstances within meaning of Act, s.18(1) — Applicant’s citizenship revoked — That decision set aside by Federal Court of Appeal; matter sent back to GIC for redetermination — Applicant’s citizenship revoked again — Judicial review of GIC’s second decision dismissed — On appeal, applicant submitting being forcibly conscripted into Einsatzkommando 10a (Ek 10a), unit involved in war crimes; claiming under duress throughout his service to Ek 10a — Federal Court of Appeal holding that GIC’s decision reasonable as regards complicity but returning decision for reconsideration on issue of duress — Minister’s Report to GIC applying test set out in Ramirez v.

Canada (Minister of Employment and Immigration); concluding no evidence existing that applicant facing imminent real, inevitable threat to life — Report recommending that applicant be deprived of Canadian citizenship pursuant to Act, s. 10 — Whether issues determined by Supreme Court of Canada in Ezokola v.

Canada (Citizenship and Immigration) relevant to proceeding, could be raised at that stage of proceeding; whether res judicata (issue estoppel) applying in present case; whether GIC breaching principles of procedural fairness in failing to give applicant opportunity to comment on rebuttal arguments put forward in final Report to GIC; whether GIC breaching principles of procedural fairness, Canadian Bill of Rights, Canadian Charter of Rights and Freedoms in rendering finding on credibility without interviewing applicant; whether GIC erring in law in applying wrong standard for assessing defence of duress; in ignoring, misstating evidence; whether GIC erring in law in reaching unreasonable decision — Issue estoppel applying herein — In present case, Federal Court of Appeal remitting previous GIC decision on sole issue of duress but not preventing decision from being final on issue of complicity — Ezokola not changing law of duress — Applicant also not establishing grounds allowing Court to exercise discretion to override doctrine of res judicata, to return matter for reconsideration of complicity issue — Applicant’s claim that denial of right to reply to Minister’s final recommendation to GIC constituting procedural unfairness rejected — Nothing inherently unfair in process followed herein — Applicant given fair, meaningful opportunity to present case on duress, which is precisely what applicant did — Onus on applicant in present case to provide sufficient evidence to establish applicant qualifying for defence of duress — Reading of decision showing that decision not based on credibility — On facts, oral interview not required to allow applicant to address credibility — Full reading of Report revealing that Report based on Minister not being satisfied sufficient evidence existing to support duress — While Report using confusing language at times, in context of decision as whole, Report’s conclusions based on insufficiency of evidence, not on applicant’s credibility — Therefore, applicant not establishing that procedural unfairness occurring in present case — Regarding issue of duress, review of record leading to conclusion that GIC applying correct standard in assessing issue of duress — However, some problems with way evidence handled existing — These problems addressed to decide whether decision reasonable — With respect to reasonableness, Report correctly identifying Ramirez test for duress; acknowledging that matter should be examined from point of view of reasonable person similarly situated to applicant — Thus, applicant failing to demonstrate duress in this case — Record, each of applicant’s submissions carefully examined but no reviewable error found — Application dismissed.

This was an application for judicial review of Order in Council P.C. 2012-1137 revoking the applicant’s Canadian citizenship under

section 10 of the Citizenship Act . The applicant was born in the Ukraine and obtained Canadian citizenship in 1960. In 1995, the applicant received notice of the intention of the Minister of Citizenship and Immigration to make a report to the Governor in Council (GIC) recommending the revocation of his Canadian citizenship. This was instigated based on the Minister’s allegation that the applicant failed to disclose his activities during World War II to Canadian immigration and citizenship officials.

At the applicant’s request, the Minister referred the case to the Federal Court to determine whether he had obtained his Canadian citizenship by false representations, fraud or by knowingly concealing material circumstances. In 2000, the Federal Court found that the applicant had obtained his citizenship by false representation or by knowingly concealing material circumstances within the meaning of subsection 18(1) of the Act. In particular, it found that the applicant had served as an interpreter for Einsatzkommando 10a (Ek 10a), a unit involved in war crimes.

In response to the Federal Court’s decision, the Minister submitted a Report to the GIC recommending the revocation of the applicant’s Canadian citizenship and the applicant’s citizenship was revoked in July 2001. The applicant sought judicial review of the GIC’s decision at the Federal Court but his application was dismissed. On appeal, the Federal Court of Appeal set aside the GIC’s decision for failing to consider whether the applicant’s activities fell within Canada’s “no safe haven” policy and for failing to balance the applicant’s personal interests against the public interest.

The matter was sent back to the GIC for redetermination. The applicant’s citizenship was revoked by the GIC again in May 2007. The applicant sought judicial review of that second decision but his application was dismissed. On appeal, the applicant submitted that he was forcibly conscripted into Ek 10a and that he was under duress throughout his service to Ek 10a.

The Federal Court of Appeal held that the GIC’s decision was reasonable as regards complicity but returned the decision for reconsideration of the sole issue of duress in light of the applicant’s submission that he was under duress during his time with Ek 10a. The reconsideration decision under review consisted of the Order in Council and the Report to the Governor in Council from the Minister of Citizenship and Immigration Concerning the Citizenship of Helmut Oberlander, supplementary report and the responses to submissions.

The Report applied the test set out by the Federal Court of Appeal case law, in particular Ramirez v. Canada (Minister of Employment and Immigration) , to determine whether the applicant had established the defence of duress. It concluded that there was no

evidence that the applicant faced an imminent real and inevitable threat to his life and that the applicant’s failure to desert while on leave cast doubt on his assertion that he was facing a threat of imminent, real danger. Moreover, the Report concluded that the applicant had numerous opportunities to desert given his many periods of leave and stated that there was insufficient evidence to establish that the applicant served Ek 10A under duress; thus, the previous determination of his complicity stood. The final Report recommended that the applicant be deprived of his Canadian citizenship pursuant to

section 10 of the Act . The main issues were whether the issues determined by the Supreme Court of Canada in Ezokola v.

Canada (Citizenship and Immigration) were relevant to this proceeding and could be raised at this stage of the proceeding; whether res judicata (issue estoppel) applied in this case; whether the GIC breached the principles of procedural fairness in failing to allow the applicant or counsel an opportunity to comment on rebuttal arguments put forward in its final Report to the GIC; whether the GIC breached principles of procedural fairness, the Canadian Bill of Rights and the Canadian Charter of Rights and Freedoms in rendering a finding on credibility without conducting an interview of the applicant; whether the GIC erred in law in applying the wrong standard for assessing the defence of duress and in ignoring and misstating evidence such that it made erroneous findings of fact in a perverse and capricious manner; and whether the GIC erred in law in reaching an unreasonable decision.

Held , the application should be dismissed. This application gave rise to three principal areas of concern: res judicata (issue estoppel); procedural fairness; and unreasonable decision. The applicant claimed that following the filing of argument and before the scheduling of the hearing for this application, the Supreme Court of Canada released its decision in Ezokola that fundamentally altered the law on complicity for international crimes in the context of an immigration matter. On the face of it, issue estoppel applied in this case.

In previous litigation, the Federal Court of Appeal upheld the GIC’s determination that the applicant was complicit, meaning that as far as the issue of complicity is concerned, all three criteria required for issue estoppel were satisfied: the complicity issue was decided in previous litigation; the Federal Court of Appeal’s decision on the issue of complicity was final; and the parties to the proceedings were the same. In this case, the Federal Court of Appeal remitted the previous GIC decision on the issue of duress but this did not prevent its decision from being final in so far as complicity is concerned.

Complicity was not a pending matter to be determined by the GIC. Consequently, there was no basis for the applicant to argue that he should be able to take advantage of the change in the law in Ezokola because complicity remained in the system. The Federal Court of Appeal remitted this matter on the sole issue of duress; Ezokola did not change the law of duress. Thus, res judicata applied in this case.

Nevertheless, it had to be decided whether the Court should exercise its residual discretion to determine that the res judicata doctrine should not be applied where, taking into account the entirety of the circumstances, this could lead to an injustice. There is a strong societal interest in preserving a final decision on the merits and this interest can only be outweighed in rare cases where the interests of justice require re-litigation. This was not such a case. This is because the applicant demonstrated no more than a change in the law.

He had his claim that he was not complicit fully determined on the merits and confirmed by the Federal Court of Appeal. The applicant was free to seek leave to take his case on complicity to the Supreme Court of Canada but chose not to avail himself of that opportunity earlier on. In addition, he did not establish that the decision finding him complicit was “clearly wrong”.

The GIC’s previous decision on complicity, endorsed by the Federal Court of Appeal, was clearly right on the merits and even if “wrongness” now has to be measured against the law in Ezokola , the applicant still did not show the decision in question was “clearly wrong”. Thus, the applicant did not establish grounds that would allow the Court to exercise the discretion to override the doctrine of res judicata and return the matter for reconsideration of the complicity issue. The applicant claimed that procedural fairness was breached in two principal ways.

First, he alleged that denying him the right to reply to the Minister’s final recommendation to the GIC resulted in procedural unfairness. There was nothing inherently unfair in the process that was followed in this case and that is followed in other similar cases where citizenship is considered for revocation. The applicant was given a fair and meaningful opportunity to present his case on duress and to bring forward and comment on the facts that supported his position. This is precisely what he did.

In this case, the Minister’s recommendations constituted the reasons for the decision and procedural fairness did not require that final reasons should be presented for possible rebuttal. If those reasons contained a reviewable error, then the applicant had the right to bring them to the Court for review. The applicant was made fully aware of the case he had to meet and was given a fair and meaningful opportunity to meet that case before a final decision was made.

There were no new facts or arguments or misdescriptions or mischaracterizations of evidence that the applicant did not address or was not able to address in his submissions and reply. The applicant’s second ground for procedural unfairness was that an oral interview should have been conducted in this case because the Minister’s Report, and therefore the GIC’s decision, was based at least in part on a negative credibility assessment of the applicant. The onus was on the applicant in this case to provide sufficient evidence to establish that he qualified for the defence of duress.

The applicant was fully aware of what this involved and went about providing that evidence. Clearly, the applicant did not feel that he needed an oral interview to make his case because he did not ask for one and there was nothing to suggest that he could not establish duress through the use of previous testimony, affidavit evidence and documentation. A reading of the decision was that it was not in a material way based upon credibility.

The Minister simply weighed the evidence before him together with the applicant’s submissions and decided that the applicant had not established sufficient grounds for the defence of duress. On the facts, an oral interview was not required to allow the applicant to address credibility. This was a disagreement about the weighing process and not a procedural fairness issue.

While there was some language in the Report that suggested the applicant’s credibility was at issue, the case law is clear that the language used is not determinative as to whether a matter was decided on weight or credibility, and the decision maker’s comments must be read in the context of the decision as a whole. The decision herein was based upon the fact that the applicant’s assertions were not sufficient to establish the defence of duress given that he submitted insufficient evidence to support them and given that the evidence on the record suggested contrary conclusions to those which he asserted.

A full reading of the Report revealed that it was based on the Minister not being satisfied that there was sufficient evidence to support duress. While the Report uses confusing language at times, in the context of the decision as a whole, the Report’s conclusions were based on an insufficiency of evidence and not on the applicant’s credibility. Therefore, the applicant did not establish that procedural unfairness occurred in this case. Regarding the issue of duress, a review of the record led to the conclusion that the GIC applied the correct standard in assessing the issue

of duress. However, there were some problems with the way the evidence was handled that were addressed to decide whether thedecision was reasonable or whether it should be returned for reconsideration. The Report made several references to the applicant’speriods of leave whereas the Federal Court did not make any findings that the applicant took any periods of leave or had an opportunityto desert.

While the Minister may have made mistakes about the Federal Court’s findings, there was still sufficient evidence to supportthe Minister’s contention that the applicant took periods of leave, returned to Ek 10a voluntarily and had opportunities to desert that hedid not take. Even though the Federal Court did not make any clear findings on issues such as forcible conscription or the applicant’sperception of threat, it was open to the GIC to assess all of the other evidence.

This evidence revealed that even if the applicant wasconscripted, there was no evidence to suggest that what he did with Ek 10a or his remaining with the unit was against his will. Also,there was no evidence that the applicant had been mistreated, that he found Ek 10a’s activities and objectives abhorrent, that he eversought to be relieved of his duties or that he ever contemplated desertion or tried to desert.

With respect to reasonableness, a reading of the Report was that it correctly identified the Ramirez test for duress and acknowledged thatthe matter should be examined from the point of view of a reasonable person who is similarly situated to the applicant. It considered theevidence and what it showed about the applicant’s point of view.

The onus was on the applicant to establish duress and in the end hefailed to demonstrate a reasonable apprehension of imminent physical peril, that the situation he found himself in was not of his makingor was not consistent with his will or that he satisfied the proportionality requirement. Each of the applicant’s assertions for reviewableerror were examined. While some mistakes were made by the Minister, there was no material error in the decision.

Reasons do not needto be perfect; they simply need to be sufficient to allow the individual to understand why the decision was made and to allow thereviewing court to assess the decision’s validity. The record and each of the applicant’s submissions were carefully examined but noreviewable error was found. STATUTES AND REGULATIONS CITED Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 7. Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18. Criminal Code, R.S.C., 1985, c. C-46, s. 618. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1. Order in Council P.C. 2012-1137. CASES CITED APPLIED: Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C. 306, (1992), 89 D.L.R. (4th)173 (C.A.); Valle Lopes v. Canada (Citizenship and Immigration), 2010 FC 403, 6 Admin. L.R. (5th) 257, affd 2012 FCA 25, 4 Imm.L.R. (4th) 14; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; R. v.

Ryan, 2013 SCC 3, [2013] 1 S.C.R. 14; Ferguson v.Canada (Citizenship and Immigration), 2008 FC 1067, 74 Imm. L.R. (3d) 306; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,[2001] 2 S.C.R. 460; Gao v. Canada (Citizenship and Immigration), 2014 FC 59; Bicuku v. Canada (Citizenship and Immigration), 2014FC 339; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761. DISTINGUISHED: Canada (Minister of Citizenship and Immigration) v. Asghedom, 2001 FCT 972, 210 F.T.R. 294; R. v. Wigman, (SCC),[1987] 1 S.C.R. 246, (1987), 38 D.L.R. (4th) 530; Régie des rentes du Québec v.

Canada Bread Company Ltd., 2013 SCC 46, [2013] 3S.C.R. 125. 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, revg 2003 FC 944, 238 F.T.R. 35; Oberlander v. Canada (Attorney General),2009 FCA 330, [2010] 4 F.C.R. 395; R. v. Finta, (SCC), [1994] 1 S.C.R. 701, (1994), 112 D.L.R. (4th) 513; Caballerov. Canada (Minister of Citizenship and Immigration), , 122 F.T.R. 291 (F.C.T.D.); R. v. Ruzic, 2001 SCC 24, [2001] 1S.C.R. 687; Ezokola v.

Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678; Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canada (Minister of Citizenship and Immigration) v. Copeland, (FC), [1998] 2 F.C. 493, (1997), 51 C.R.R. (2d) 65 (T.D.); Canada (Minister of Citizenship and Immigration) v. Oberlander, , 155 D.L.R. (4th) 481 (F.C.T.D.); R. v. Weir, 1999 ABCA 275, 250 A.R. 73; R. v. Sarson, (SCC), [1996]2 S.C.R. 223, (1996), 135 D.L.R. (4th) 402; R. v. Thomas, (SCC), [1990] 1 S.C.R. 713, (1990), 75 C.R. (3d) 352;Metro Can Construction Ltd. v.

Canada, 2001 FCA 227, 203 D.L.R. (4th) 741; Apotex Inc. v. Merck & Co., 2002 FCA 210, [2003] 1F.C. 242; Pehtereva v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 200 (F.C.T.D.); Singh v. Canada(Citizenship and Immigration), 2008 FC 494; Myle v. Canada (Citizenship and Immigration), 2007 FC 1073, 66 Imm. L.R. (3d) 214;Bermudez v. Canada (Citizenship and Immigration), 2007 FC 681; Agastra v. Canada (Minister of Citizenship and Immigration), 2006FC 548; General Motors of Canada Ltd. v. Naken et al., (SCC), [1983] 1 S.C.R. 72, (1983), 144 D.L.R. (3d) 385;Prosecutor v.

KAING Guek Eav alias Duch Case File/ Dossier No. 001/18-07-2007/ ECCC/TC, Extraordinary Chambers in the Court ofCambodia; Vandifar v. Canada (Citizenship and Immigration), 2012 FC 433, 27 Imm. L.R. (4th) 78; Nnabuike Ozomma v. Canada(Citizenship and Immigration), 2012 FC 1167, [2014] 1 F.C.R. 732. REFERRED TO:

Equizabal v. Canada (Minister of Employment and Immigration), (FCA), [1994] 3 F.C. 514, (1994), 24 Imm. L.R.(2d) 277 (C.A.); Nagalingam v. Canada (Minister of Citizenship and Immigration), 2008 FCA 153, [2009] 2 F.C.R. 52; R. v. Hibbert, (SCC), [1995] 2 S.C.R. 973, (1995), 99 C.C.C. (3d) 193; Agraira v. Canada (Public Safety and EmergencyPreparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Oberlander v. Canada (Attorney General), 2003 FC 944, 238 F.T.R. 35; Oberlanderv. Canada (Attorney General), 2008 FC 1200, [2009] 3 F.C.R. 358; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502;Exeter v.

Canada (Attorney General), 2014 FCA 251, 465 N.R. 346; League for Human Rights of B’nai Brith Canada v. Canada, 2010FCA 307, [2012] 2 F.C.R. 312; R. v. Arsenault, 2009 NBCP 44, 354 N.B.R. (2d) 200; Nagamany v. Canada (Minister of Citizenship andImmigration), 2005 FC 1554; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817,(1999), 174 D.L.R. (4th) 193; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Bhagwandass v.Canada (Minister of Citizenship and Immigration), 2001 FCA 49, [2001] 3 F.C. 3; Singh et al. v.

Minister of Employment andImmigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422; Belalcazar v. Canada (Public Safety andEmergency Preparedness), 2011 FC 1013, 395 F.T.R. 291; Jimenez v. Canada (Citizenship and Immigration), 2012 FC 1231; Arica v.Canada (Solicitor General), 2005 FC 907, 276 F.T.R. 124; Boshra v. Canadian Association of Professional Employees, 2011 FCA 98,90 C.C.E.L. (3d) 89; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Lupsa v. Canada(Citizenship and Immigration), 2007 FC 311; Ventura v.

Canada (Citizenship and Immigration), 2010 FC 871, 90 Imm. L.R. (3d) 264;I.I. v. Canada (Citizenship and Immigration), 2009 FC 892; Giles v. Westminster Savings and Credit Union, 2010 BCCA 282, 5B.C.L.R. (5th) 252; Sanofi-Aventis Canada Inc. v. Pharmascience Inc., 2007 FC 1057, 61 C.P.R. (4th) 434, affd 2008 FCA 213, 67C.P.R. (4th) 385; Smith Estate v. National Money Mart Co., 2008 ONCA 746, 92 O.R. (3d) 641; Minott v. O’Shanter Development Co.(1999), (ON CA), 42 O.R. (3d) 321, 168 D.L.R. (4th) 270 (C.A.); Hernandez v. Canada (Minister of Citizenship andImmigration), 2005 FC 429, [2006] 1 F.C.R. 3; Al Yamani v.

Canada (Solicitor General), (FC), [1996] 1 F.C. 174,(1995), 129 D.L.R. (4th) 226 (T.D.); R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520; Liban v. Canada (Citizenship and Immigration),2008 FC 1252, 76 Imm. L.R. (3d) 227; Zokai v. Canada (Minister of Citizenship and Immigration), 2005 FC 1103; Carrillo v. Canada(Minister of Citizenship and Immigration), 2008 FCA 94, [2008] 4 F.C.R. 636. AUTHORS CITED Citizenship and Immigration Canada. Enforcement Manual (ENF),

Chapter ENF 18: War crimes and crimes against humanity, online:<http://www.cic.gc.ca/english/resources/manuals/enf/enf18-eng.pdf>. Hawley, Charles. “Overturning Hitler’s Military Tribunals: Germany Considers Rehabilitating Soldiers Executed for ‘Treason’”, Spiegel(June 29, 2007), online: <http://www.spiegel.de/international/germany/overturning-hitler-s-military-tribunals-germany-considers-rehabilitating-soldiers-executed-for-treason-a-491332.html>.

Marinero, Ximena. “ Germany passes law to exonerate Nazi-era ‘war traitors’”, Jurist (September 9, 2009), online:<http://jurist.org/paperchase/2009/09/germany-passes-law-to-exonerate-nazi.php>. Moore, Tristana. “Nazi deserter hails long-awaited triumph”, BBC News (September 8, 2009), online:<http://news.bbc.co.uk/2/hi/europe/8244186.stm>. Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV, October 1946–April1949, online : <http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-IV.pdf>.

APPLICATION for judicial review of Order in Council P.C. 2012-1137 revoking the applicant’s Canadian citizenship under

section 10of the Citizenship Act. Application dismissed. APPEARANCES Ronald Poulton and Barbara Jackman for applicant. Catherine Vasilaros and Jeannine Plamondon for respondent. SOLICITORS OF RECORD Poulton Law Office Professional Corporation and Jackman, Nazami & Associates, Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Russell J.: I. INTRODUCTION [1] This is an application under

section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7, for judicial review of Order in CouncilP.C. 2012-1137 (Order in Council), dated September 27, 2012, which revoked Helmut Oberlander’s (applicant or Mr. Oberlander)Canadian citizenship under

section 10 of the Citizenship Act, R.S.C., 1985, c. C-29 (Act). II. BACKGROUND [2] Mr. Oberlander was born on February 15, 1924 in Halbstadt, Ukraine. He obtained his Canadian citizenship on April 19, 1960. [3] In a letter dated January 27, 1995, Mr. Oberlander received notice of the Minister of Citizenship and Immigration’s (Minister)intention to make a report to the Governor in Council (GIC) recommending the revocation of his Canadian citizenship. This process wasinstigated based on the Minister’s allegation that Mr. Oberlander 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 determinewhether he had obtained his Canadian citizenship by false representations, fraud, or by knowingly concealing material circumstances. [4] In February 2000, Justice MacKay found that Mr. Oberlander had obtained his citizenship by false representation or byknowingly concealing material circumstances within the meaning of subsection 18(1) of the Act: Canada (Minister of Citizenship andImmigration) v. Oberlander , 185 F.T.R. 41 (F.C.T.D.) (Oberlander (2000)).

Justice MacKay found that Mr.Oberlander had served as an interpreter for Einsatzkommando 10a (Ek 10a), a unit involved in war crimes. This is a final and non-reviewable decision: Act, subsection 18(3). [5] In response to Justice MacKay’s decision, the Minister submitted a report to the GIC recommending the revocation of Mr.Oberlander’s Canadian citizenship. The GIC revoked Mr. Oberlander’s citizenship on July 21, 2001. [6] Mr. Oberlander sought judicial review of the GIC’s decision at the Federal Court. His application was dismissed.

On appeal, theFederal Court of Appeal set aside the GIC’s decision for failing to consider whether Mr. Oberlander’s activities fell within Canada’s “nosafe haven” policy and for failing to balance Mr. Oberlander’s personal interests against the public interest: Oberlander v. Canada(Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3 (Oberlander (2004)), at paragraphs 58–60. The matter was sent back to the GICfor redetermination. [7] The GIC revoked Mr. Oberlander’s citizenship again on May 17, 2007. [8] Mr. Oberlander sought judicial review of the GIC’s second decision. Again, his application was dismissed.

On appeal, Mr.Oberlander submitted that he was forcibly conscripted into Ek 10a, and that he was under duress throughout his service to Ek 10a. The[Federal] Court of Appeal held that the GIC’s decision was reasonable as regards complicity, but returned the decision forreconsideration of the sole issue of duress, in light of Mr. Oberlander’s submission that he was under duress during his time with Ek 10a:Oberlander v. Canada (Attorney General), 2009 FCA 330, [2010] 4 F.C.R. 395 (Oberlander (2009)), at paragraphs 22 and 41. III.

DECISION UNDER REVIEW [9] The reconsideration decision under review consists of the Order in Council and the Report to the Governor General in Councilfrom the Minister of Citizenship and Immigration Concerning the Citizenship of Helmut Oberlander, supplementary report and responseto submissions (Report) (Decision), which reflects the GIC’s reasons. [10] The Report says its analysis as to whether duress can overcome Mr. Oberlander’s complicity applies to the definition of duress inimmigration law, in the Citizenship and Immigration Operational Manual [Enforcement Manual (ENF)],

Chapter ENF 18: War crimesand crimes against humanity,

section 7.4 (Guidelines), and under criminal law. The Report outlines the legal requirements for each ofthese tests and considers whether Mr. Oberlander has established that he satisfies their requirements. [11] From the perspective of immigration law, the Report applies the test developed in Federal Court of Appeal jurisprudence. Thistest has three basic elements (Ramirez v. Canada (Minister of Employment and Immigration), (FCA), [1992] 2 F.C.306 (C.A.) (Ramirez)): i. A reasonable apprehension of imminent physical peril, depriving the claimant of the freedom to choose right from wrong; ii.

The situation cannot be brought about through the claimant’s own acts or be consistent with the claimant’s will; and iii. The harm inflicted must not be in excess of that which would have been directed at the claimant (the “proportionality”requirement). A failure to establish any one element is enough to dismiss the defence of duress. [12] The imminent peril issue is concerned with whether the individual faced an “imminent, real, and inevitable threat to his life”: R.v. Finta, (SCC), [1994] 1 S.C.R. 701 (Finta), at page 837. The Report says that there is no evidence that Mr.Oberlander faced this type of threat.

In reaching this conclusion, the Report considers the following findings of Justice MacKay (Report,at paragraph 32): i. Mr. Oberlander maintained a continuous, lengthy service for 3-4 years, only surrendering at the end of the war. ii. Mr. Oberlander voluntarily accepted the award of the War Service Cross Second Class for his service in Ek10a. iii. Mr. Oberlander voluntarily joined his mother’s application for German citizenship. iv. Mr. Oberlander had numerous opportunities to desert as he was on leave many times and for several weeks on each occasion.[Footnotes omitted.] [13] The Report finds that Mr.

Oberlander’s failure to desert while on leave or while serving as a solitary guard casts doubt on thecredibility of his assertion that he was facing a threat of imminent, real danger: Equizabal v. Canada (Minister of Employment andImmigration), (FCA), [1994] 3 F.C. 514 (C.A.) (Equizabal). [14] The second element of the Ramirez test is concerned with whether the individual claiming duress is responsible for his or herown predicament. The Report says that, contrary to Mr. Oberlander’s submissions, Justice MacKay made no finding as to whether hewas conscripted. Even if the Minister were to accept Mr.

Oberlander’s submissions, conscription is not conclusive of duress: Oberlander(2009), above, at paragraphs 32–33. Mr. Oberlander was promoted and accepted a medal recognizing his service, leading to theconclusion that he was responsible for his actions during the duration of his service, regardless of whether he was conscripted: Caballerov. Canada (Minister of Citizenship and Immigration), , 122 F.T.R. 291 (F.C.T.D.) (Caballero).

[15] The Report points to the report of Trials of War Criminals before the Nuremberg Military Tribunals under Control Council LawNo. 10, Vol. IV, October 1946-April 1949 (Nuremberg Report) which found that members of Einsatzgruppen were able to seek transfers,and could ask to be excused from their duties. The Report concludes that the lack of evidence that Mr. Oberlander sought a transfer or adischarge confirms that he was responsible for his own predicament. [16] Finally, the Report considers the proportionality element.

This requires that the potential harm the claimant would have faced bydisobeying an order be more serious than the harm to victims caused by the claimant’s actions: Ramirez, above, at pages 327–328. AsJustice MacKay found that Ek 10a was a killing squad, Mr. Oberlander was obligated to show that he feared death to justify hiscomplicity. The Report says that Justice MacKay found Mr. Oberlander’s evidence that he joined out of fear of harm or the harshest ofpenalties to be inconsistent. Justice MacKay made no findings that Mr.

Oberlander would have faced death if he had not complied withEk 10a’s orders. [17] As the Guidelines are based on the Ramirez factors, the Report also finds that Mr. Oberlander has not established that he wasunder duress under the Guidelines’ requirements. The Report specifically highlights its finding that Mr. Oberlander had numerousopportunities to desert, given his many periods of leave, and the lack of evidence to establish Mr. Oberlander’s assertion that memberswho disobeyed or tried to desert Ek 10a were executed. [18] Next, the Report addresses Mr.

Oberlander’s submissions regarding the defence of duress in criminal law. It advises the GIC tobase its decision on immigration law and policy considerations, but says that criminal law can serve as an interpretive aid, if applied withcircumspection: Nagalingam v.

Canada (Minister of Citizenship and Immigration), 2008 FCA 153, [2009] 2 F.C.R. 52, at paragraph 67. [19] The criminal law defence of duress is based on the same three elements as immigration law: (1) clear and imminent danger; (2)the absence of any reasonable legal alternative to breaking the law, such as a safe avenue of escape; and (3) proportionality between theharm inflicted and the harm avoided: R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687 (Ruzic), at paragraphs 59–64; R. v.

Hibbert, (SCC), [1995] 2 S.C.R. 973 (Hibbert). [20] Whether the accused had a safe avenue of escape should be examined from an objective-subjective standard. This requiresconsideration from the perspective of a similarly-situated reasonable person: Ruzic, above, at paragraph 61. The Report addresses Mr.Oberlander’s submissions regarding his age, and his belief that he would be killed if he tried to escape (Report, at paragraph 65): Age should be considered on a spectrum. Mr. Oberlander would be on the more mature end being 18 years old or some months shy ofhis 18th birthday.

According to his own evidence, he showed his maturity by being the only male of the household, having worked tosupport his family and save for his education. In addition, Justice MacKay found that Mr. Oberlander “was comparatively well educatedfor his time” (thus, lending him to the task of

interpretation). Therefore, Mr. Oberlander was not a boy or a child at the time that hejoined the Ek10a. [Footnotes omitted.] The Report concludes that Mr. Oberlander’s maturity level was such that he could have evaluated the situation and deserted or sought atransfer. [21] The criminal law also requires a close temporal connection between the threat and the potential infliction of harm: Ruzic, above,at paragraph 65. The Report again relies on the fact that Mr.

Oberlander went on leave several times to find that there was no closetemporal connection between the threat and the potential harm (death for desertion) that Mr. Oberlander feared. [22] The Report concludes that there is insufficient evidence to establish that Mr. Oberlander served Ek 10a under duress, and theprevious determination of his complicity stands. It says the duress analysis has no impact on the Minister’s prior balancing of Mr.Oberlander’s personal interests with the public interests. [23] Mr. Oberlander was provided with a draft copy of the Report and invited to make submissions.

The final Report describes thesesubmissions as “a repeated attempt to relitigate all the issues that were already decided by Justice MacKay or to attack decisions made bythe Governor in Council that were later confirmed by the Federal Court and the Federal Court of Appeal”: Report, at paragraph 79. [24] On the duress issue, Mr. Oberlander submitted that the Report’s account of his leaves and absences was wrong. The final Reportsays that even if this assertion is accepted, it does not change the fact that Mr.

Oberlander was alone and armed for a month and so hadthe opportunity to escape and was not under duress for the entire duration of his service to Ek 10a. The final Report says that Mr.Oberlander’s submissions regarding his fear of death for desertion cannot constitute a carte blanche excuse for his complicity: ValleLopes v. Canada (Citizenship and Immigration), 2010 FC 403, 6 Admin. L.R. (5th) 257 (Valle Lopes), at paragraph 107, affd 2012 FCA25, 4 Imm. L.R. (4th) 14. [25] The final Report says that the Minister has measured Mr. Oberlander’s arguments against the findings of Justice MacKay, andhas found that Mr.

Oberlander has failed to demonstrate that he was under duress while remaining in the service of Ek 10a. The finalReport recommends that Mr. Oberlander be deprived of his Canadian citizenship pursuant to

section 10 of the Act. IV. ISSUES [26] The applicant raises the following issues in this proceeding: a. Did the GIC err in law in applying the wrong standard for assessing the defence of duress? b. Did the GIC err in law in ignoring and misstating evidence, such that it made erroneous findings of fact in a perverse andcapricious manner? c. Did the GIC breach principles of procedural fairness in failing to allow the applicant or counsel an opportunity to comment onrebuttal arguments put forward in its final Report to the GIC?

d. Did the GIC breach principles of procedural fairness, the Canadian Bill of Rights , R.S.C., 1985, Appendix III (Bill of Rights), and the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter) in rendering a finding on credibility without conducting an interview of the applicant? e. Did the GIC err in law in reaching an unreasonable decision? In an order dated September 30, 2012, Prothonotary Aalto granted the applicant’s motion to permit the parties to file supplemental memoranda of fact and law addressing a change in the law. The applicant raised two additional issues in his submissions: f. Are the issues determined by the Supreme Court of Canada in Ezokola v.

Canada (Citizenship and Immigration) , 2013 SCC 40 , [2013] 2 S.C.R. 678 ( Ezokola ) relevant to the within proceeding, and can they be raised at this stage of the proceeding? g. Should the decision of the GIC be set aside because its treatment of complicity does not comply with the requirements established by the Supreme Court of Canada in Ezokola ? V. STANDARD OF REVIEW [ 27 ] The Supreme Court of Canada in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ) held that a standard of review analysis need not be conducted in every instance.

Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, at paragraph 48 . [ 28 ] The applicant does not address the standard of review applicable to this proceeding. The respondent submits that the GIC’s decision should be reviewed on a standard of reasonableness as it is a discretionary, policy-driven decision made by “the highest political organ of the Canadian government”: Oberlander v. Canada (Attorney General) , 2003 FC 944 , 238 F.T.R. 35, at paragraph 18 ; Oberlander v.

Canada (Attorney General) , 2008 FC 1200 , [2009] 3 F.C.R. 358, at paragraph 41 . [ 29 ] Issues a. and b. will be reviewed on a standard of reasonableness as the GIC’s application of the law to the facts at hand raises a question where “the legal issues cannot be easily separated from the factual issues”: Dunsmuir , above, at paragraph 51 . [ 30 ] Issues c. and d. raise issues of procedural fairness and will be reviewed on a standard of correctness: Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502, at paragraph 79 ; Exeter v.

Canada (Attorney General) , 2014 FCA 251 , 465 N.R. 346, at paragraph 31 . [ 31 ] Issue e. requires the review of a decision of the GIC. The Federal Court of Appeal has established that such decisions are reviewed on a standard of reasonableness: Oberlander (2004), above, at paragraph 55; Oberlander (2009), above, at paragraph 12; League for Human Rights of B'nai Brith Canada v.

Canada , 2010 FCA 307 , [2012] 2 F.C.R. 312 ([hereinafter referred to as] Odynsky ), at paragraphs 83–91. [ 32 ] Issues f. and g. raise questions of law for the Court to determine and no standard of review applies. [ 33 ] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: see Dunsmuir , above, at paragraph 47 ; Canada (Citizenship and Immigration) v.

Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at paragraph 59 . Put another way, the Court should intervene only if the decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law”. VI. STATUTORY PROVISIONS Order in cases of fraud 10.

(1) Subject to

section 18 but notwithstanding any other

section of this Act , where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances, (

a) the person ceases to be a citizen, or (

b) the renunciation of citizenship by the person shall be deemed to have had no effect, as of such date as may be fixed by order of the Governor in Council with respect thereto. Presumption

(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship. VII. ARGUMENT A. Applicant

(1) Legal Test for the Defence of Duress [ 34 ] The applicant agrees that the Ramirez test is the correct approach to evaluating duress in immigration law. However, the applicant says that the Minister erred in his application by evaluating whether the imminent harm feared by the applicant was established

at a standard of certainty. The Minister should have considered whether a reasonable person in the applicant’s position would have perceived an imminent harm. [ 35 ] The applicant says this failure is in part due to the Minister’s belief that the Guidelines are a reflection of the jurisprudence on duress.

The applicant argues that the Guidelines remove the consideration of the reasonable person test, and this has resulted in an improper determination. [ 36 ] The applicant also says that the criminal law defence of duress should apply to the GIC’s determination because the defence is based on the principle of moral blameworthiness in both criminal law and immigration law. The criminal law provides that the elements of duress are evaluated on a modified objective standard; that is, one that considers a similarly-situated reasonable person: R. v. Ryan , 2013 SCC 3 , [2013] 1 S.C.R. 14 ( Ryan ).

Again, under the criminal law analysis, the applicant says that the Minister considered whether a threat did or did not exist, rather than what a reasonable person in the applicant’s position would have perceived. [ 37 ] The applicant says the Minister also erred in his examination of whether the applicant had a safe avenue of escape. The proper consideration was whether the applicant could have escaped without undue danger: Hibbert , above.

The personal circumstances of the accused should be taken into account when making this determination: Hibbert , above, at paragraph 62 ; Ruzic , above, at paragraph 40 ; R. v. Arsenault , 2009 NBPC 44 , 354 N.B.R. (2d) 200, at paragraph 60 . A reasonable course of action to avoid imminent harm does not require heroics: Ruzic , above, at paragraph 40 . [ 38 ] The Report finds at various points that Mr. Oberlander’s periods of leave provided him with an opportunity to desert.

The applicant says that this analysis fails to consider the evidence that the applicant put forward concerning the reasonableness of his belief that he could not desert or escape from Ek 10a, including (applicant’s record, at page 63): i. Mr. Oberlander was 17 years old and had recently finished grade 10 when he was initially taken by the German forces. He was working in a factory, helping to support his family and saving money for medical school. His father was deceased; ii.

According to a recent understanding of international law principles, forced conscription at age 17 is considered a violation of international human rights principles. The ILO [International Labour Organization] considers it to be a form of child slavery; iii. Members of Mr. Oberlander’s family had been forcibly taken by Stalin’s NKVD. The family believed they had been murdered; iv. Mr. Oberlander was the lone male remaining alive in his immediate family; v. It was the middle of the Second World War; vi. Mr. Oberlander was ordered to act as an interpreter for the German forces.

His mother was distraught and had nearly fainted when told he had to go. He himself described it as being “kidnapped” by the German forces; vii. Mr. Oberlander was told of an incident in which a deserting German soldier had been executed. He was informed that if he tried to escape, he would be shot; viii. The anti-German partisans were known to execute members of the German forces they captured. The applicant says that the Minister’s failure to consider these submissions shows a misunderstanding of the legal criteria.

(2) Applicant’s Periods of Absence From Ek 10a [ 39 ] The applicant argues that the Minister improperly relied on his periods of leave to find that he was not always under duress. The applicant points to four specific references. [ 40 ] First, the applicant says the only period of time relevant to the issue of complicity, and so also to the issue of duress, is the time during which a person is involved with an organization with a brutal and limited purpose: Nagamany v. Canada (Minister of Citizenship and Immigration) , 2005 FC 1554 .

The Minister erred by referring to a period of leave that allegedly took place one month after he left Ek 10a and when he was with a regular combat unit of the German forces. This period of time is irrelevant to the applicant’s complicity in the crimes committed by Ek 10a and whether or not he could have deserted. [ 41 ] Second, the applicant says that the Minister erred by relying on a period of leave that Justice MacKay said was unlikely to have taken place. Mr. Huebert, a Crown witness, testified that he and Mr. Oberlander drove to Halbstadt on a period of leave in May 1942.

Justice MacKay found, “[i]t is unlikely that [Mr. Oberlander] travelled to Halbstadt with Mr. Huebert at least at the time Huebert suggests, in May 1942, since this would have been after Mr. Oberlander’s mother and family had left town”: Oberlander (2000), above, at paragraph 23. The Minister erred by finding the applicant’s voluntary return from this alleged leave negated the existence of an imminent, real, inevitable harm. [ 42 ] Third, the applicant says that the Minister erred by misstating the evidence. The Report points to findings by Justice MacKay that Mr.

Oberlander had numerous opportunities to desert because he was on leave many times, and, at times, for several weeks. The applicant says a review of the paragraphs the Minister cites makes clear that Justice MacKay never found that he had numerous opportunities to desert. [ 43 ] Fourth, the applicant says that the Minister’s assertion that the time Mr. Oberlander spent guarding a barge as a solitary soldier meant that he was not under duress during the duration of his service with Ek 10a is both unreasonable and a misunderstanding of the law on duress.

The Minister erred by suggesting that the harm feared must be constant to establish duress. In the applicant’s circumstances, the harm would have arisen if he had attempted to escape or desert. [ 44 ] The applicant argues that desertion punishable by execution satisfies the imminent harm element, as well as the proportionality in

the harm inflicted and avoided in the duress analysis: Canada (Minister of Citizenship and Immigration) v. Asghedom, 2001 FCT 972,210 F.T.R. 294 (Asghedom). A future harm can satisfy the imminent harm element: Asghedom, above; Ryan, above. In Ruzic, above, theCourt found an imminent threat of harm despite the fact that Ms. Ruzic travelled far from her attacker and months had passed betweenthe threat and her criminal act. [45] The applicant says that the testimony before Justice MacKay established that the penalty for desertion or disobedience wasdeath.

Further, recent reports confirm that approximately 20 000 German soldiers were executed during World War II for desertion. Thefact that desertion was punishable by death clearly establishes the close temporal connection to the harm feared. [46] Mr. Oberlander was never outside of German-occupied territory during his time with Ek 10a. Leaving his unit on an authorizedleave and remaining at his solitary post could not result in execution for desertion. However, if Mr. Oberlander had not returned or haddeserted his post, he would have put himself at risk of being executed.

This would have placed the applicant in close temporalconnection to the harm threatened. The law does not require heroics, and the applicant was not required to show that he risked his life toescape the German forces: Ruzic, above, at paragraph 40; Ramirez, above. The applicant says the Minister failed to consider where hecould have fled to in a Europe largely occupied by German forces. [47] The applicant also argues that the Minister is wrong in relying on the Nuremberg Report.

The Nuremberg Report refers toleaders, while the Supreme Court has said that different standards should be applied to individuals of different ranks: Finta, above, atparagraph 24. There is no evidence that a person of Mr. Oberlander’s rank could have sought a transfer or asked to be discharged. TheNuremberg Report cannot be used to establish the reasonableness of Mr. Oberlander’s perceptions and has no evidentiary value.

(3) Failure to Disclose the Final Report [48] The applicant says that the Minister’s failure to disclose the final Report and provide him with an opportunity to respond is abreach of procedural fairness. The requirements of procedural fairness vary in accordance with a number of factors, including theimportance of the decision to the person concerned.

Citizenship revocation engages Charter rights and other highly important issues:Odynsky, above, at paragraph 80. [49] Procedural fairness requires that a party know the case he or she has to meet and be given a chance to respond to it: Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 (Baker); Charkaoui v. Canada(Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.

The Federal Court of Appeal has held that it is a breach of the duty offairness not to provide a person subject to the danger opinion process with the Minister’s Report and an opportunity to respond:Bhagwandass v.

Canada (Minister of Citizenship and Immigration), 2001 FCA 49, [2001] 3 F.C. 3, at paragraph 35. [50] The applicant says the final Report contains new legal arguments and case law, to which the applicant was unable to respond.These include: • The Minister’s explanation that he used the word “rumours” to refer to the fact that an assertion was based on hearsay and littleweight should be afforded to it; • The Minister’s claim that the newspaper reports relied on by the applicant are less reliable evidentiary sources; • The Minister’s use of case law not disclosed to the applicant for the proposition that there is no authority to establish that thepossibility of death for desertion is a carte blanche excuse for participation in the commission of atrocities; • The Minister’s use of a case in which the defence of duress was rejected because the perceived threat resulted from a policy ofterror that the accused willingly and actively participated in; • The Minister’s claim that the applicant has changed his position on the age he was conscripted from what he testified to beforeJustice MacKay, and what he submitted to the Minister; • The Minister’s suggestion that the evidence submitted to the GIC is outside of the existing record and impermissible.

The applicant argues that as a result of his inability to respond to these new submissions, the GIC’s decision is based on the Minister’serroneous submissions.

(4) Oral Interview Required [51] The applicant submits that the Report, and the GIC decision, is based, in part, on a negative credibility assessment of theapplicant. When credibility is in issue, procedural fairness, paragraph 2(

e) of the Bill of Rights, and

section 7 of the Charter require thatan oral interview be held: see Singh et al. v Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, atpages 213–214; Baker, above. The applicant says that he was denied procedural fairness because he was not provided with an oralinterview.

(5) Unreasonable Decision [52] The applicant submits that the GIC decision is unreasonable for several reasons (applicant’s record, at pages 81–82): • It partially relies on facts to find complicity which occurred after the Applicant was a forced conscript with Ek 10a; • It applies the wrong standard for the assessment of duress; • It ignores the evidence of government witnesses; • It appears to suggest that evidence outside the record before Justice MacKay on the reference should be ignored;

• It misunderstands and misstates case law; and • It refers to the fact of the execution of deserters from the German forces as mere rumour. B. Respondent

(1) Legal Test for Defence of Duress [ 53 ] The respondent agrees that the legal test for the defence of duress was established by Ramirez and confirmed by the Federal Court of Appeal in Oberlander (2009), above. The three elements of the test are conjunctive; a failure to meet one of the elements is fatal to establishing the defence of duress: Belalcazar v. Canada (Public Safety and Emergency Preparedness) , 2011 FC 1013 , 395 F.T.R. 291, at paragraph 19 . The burden of establishing duress lies on the applicant: Jimenez v.

Canada (Citizenship and Immigration) , 2012 FC 1231 , at paragraphs 16 , 18–21. [ 54 ] The respondent points to five errors in the applicant’s submissions regarding the Minister’s duress analysis (respondent’s record, at pages 33–35): • The Applicant misconstrues the test by focusing exclusively on the imminent peril element of the defence on duress in immigration law, and the safe avenue of escape under criminal law; • The Federal Court of Appeal has already confirmed that the Guidelines are reflective of its jurisprudence: Oberlander (2009), above; • The Report properly considered the perspective of a similarly-situated reasonable person in Mr.

Oberlander’s position; • Despite the Applicant’s argument before the Court that the reasonable person consideration is determinative, this was not emphasized in the Applicant’s earlier submissions or reply; and • The Applicant improperly relies on an isolated statement from Ruzic : “the law is designed for the common man, not for a community of saints or heroes” (above, at para 40). This ignores the Court’s further comments regarding the fortitude and resistance an accused is expected to demonstrate.

Contrary to the applicant’s assertions, the respondent says that the Report properly analysed whether the applicant had established that he met the duress criteria. [ 55 ] The respondent highlights the Report’s consideration of whether Mr. Oberlander faced an imminent threat of harm, focusing on: the length of Mr.

Oberlander’s service; the fact that he returned from many periods of leave; his time stationed as a solitary guard for three to four weeks; and, the lack of evidence that he was ever mistreated. [ 56 ] The periods of leave were established by the evidence that was before Justice MacKay ( Oberlander (2000), above, at paragraphs 73 and 158) and the applicant does not dispute his time spent as a solitary guard. The respondent also says that the evidence shows that some of the time that Mr. Oberlander spent with a regular combat group was in conjunction with Ek 10a.

As such, the applicant is wrong in arguing that the Report considers periods of leave after Mr. Oberlander left Ek 10a. The applicant is also wrong in saying Justice MacKay found the leave alleged by Mr. Huebert to have taken place in May 1942 did not take place. [ 57 ] The applicant provides no evidence to dispute the finding of the Nuremberg Report that members of Ek 10a had the ability to ask for transfers. The respondent says that the applicant’s assertion that he believed he would be killed if he deserted is insufficient to establish imminent peril: Equizabal , above.

Failure to desert while on leave is indicative of a lack of an imminent threat: Equizabal , above. The respondent also relies on Valle Lopes , above, in which the Court upheld the finding that the applicant in that case was not under constant watch and could have escaped, even if it would have placed him in grave danger (at paragraph 108). [ 58 ] The applicant’s reliance on Asghedom , above, is improper. In that case, there was no evidence that the applicant had any leave opportunities, and there was documentary evidence showing that the penalty for desertion was death.

There is no such evidence to support the applicant’s claim of duress. [ 59 ] Collectively, the evidence invalidates the applicant’s contention that he was in imminent danger. [ 60 ] The applicant also failed to establish that his time with Ek 10a was inconsistent with his will. The respondent highlights the following facts as establishing that Mr.

Oberlander’s service was consistent with his will (respondent’s record, at pages 41–42): • There is no conclusive finding that the Applicant was conscripted; • The Applicant was promoted and received a medal recognizing his service; • The Nuremberg Report says that uncooperative or unwilling individuals could have sought a transfer or a discharge; • There is no evidence the Applicant ever sought a discharge, or a transfer, or that he considered desertion; • The Applicant always returned to his duties after his periods of leave; • There is no evidence that he found Ek 10a’s activities abhorrent; and • The Applicant joined his mother’s application for German citizenship. [ 61 ] The applicant also failed to establish that he met the proportionality element.

He has not presented evidence to show that the harm caused to the victims of Ek 10a was less than the possible harm he would have faced. There is no factual foundation for the

applicant’s assertion that Ek 10a members faced death if they disobeyed an order or tried to leave. [62] In response to the applicant’s reliance on the criminal law of duress, the respondent says that the jurisprudence has held that“proceedings under

section 18 of the Citizenship Act must be analysed in the context of principles and policies underlying immigrationand citizenship law, and not in the criminal law context”: Canada (Minister of Citizenship and Immigration) v. Copeland, (FC), [1998] 2 F.C. 493 (T.D.), quoted in Canada (Minister of Citizenship and Immigration) v. Oberlander, , 155D.L.R. (4th) 481 (F.C.T.D.), at paragraph 26. [63] Notwithstanding this direction from the Court, the applicant does not meet the criminal law test established in Ryan, above. Theapplicant relies on unsubstantiated evidence to establish a threat.

One’s subjective belief is not determinative, and the possibility of deathfor desertion does not excuse the commission of atrocities: Valle Lopes, above, at paragraph 107. There also must be a close temporalconnection between the threat and the harm threatened: Ryan, above, at paragraphs 66–67. The applicant asserts that the harm can befuture-based, but in Caballero, above, the Court rejected the argument that imminent harm could be continuous and lacked a temporallimitation (at paragraphs 30–31).

The applicant cannot meet the proportionality element of the Ryan test because there is no evidence ofa threat against him: Arica v. Canada (Solicitor General), 2005 FC 907, 276 F.T.R. 124, at paragraph 25. The respondent also disputesthe applicant’s contention that the Report failed to consider his personal circumstances. The Report considered Mr. Oberlander’s age,level of maturity, and his level of education.

(2) No Right to Reply to the Final Report [64] The respondent argues that there was no breach of procedural fairness in the preparation of the Report. The applicant wasprovided with a meaningful opportunity to present his case; he was provided with a draft copy of the Report, which contained theMinister’s analysis on the issue of duress; he was provided with a meaningful opportunity to reply to the draft copy of the Report; and,the final Report merely addressed the applicant’s reply submissions. The respondent says there is no duty on the Minister to provide hisresponse to the applicant’s reply submissions.

The process requires finality at some point, and the applicant has not pointed to any caselaw establishing a right to reply to the Minister’s final consideration of his reply submissions. [65] The respondent also argues that the applicant has not established that the final portion of the Report contained new facts orarguments, or came to an unreasonable conclusion.

(3) No Right to an Oral Hearing [66] The respondent submits that the applicant was not entitled to an oral hearing: see Baker, above, at paragraphs 23–27; Boshra v.Canadian Association of Professional Employees, 2011 FCA 98, 90 C.C.E.L. (3d) 89, at paragraph 15. The applicant had an oral hearingbefore the Federal Court, and the Act contemplates a paper process based on a written report produced following the hearing: Act,subsection 10(1); Odynsky, above.

The applicant is not entitled to an oral hearing before the GIC, nor did he ever request an oral hearing. [67] The importance of the decision to the applicant does not entitle him to an oral hearing. A paper process has been held to besufficient in cases where a risk of torture is alleged: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1S.C.R. 3, at paragraphs 113–123; Lupsa v. Canada (Citizenship and Immigration), 2007 FC 311, at paragraphs 32–36. [68] The respondent also disputes the applicant’s contention that this case turns on credibility.

The respondent says that the GIC didnot make an adverse credibility finding against the applicant, but rather found his evidence unpersuasive. The applicant had the onus topresent evidence showing that the defence of duress applied. The evidence he presented to establish duress was weighed against theevidence which indicated he was not under duress. Evidence from witnesses with a personal interest in the matter, lacking corroboration,or vague evidence may be given less weight: Ventura v. Canada (Citizenship and Immigration), 2010 FC 871, 90 Imm. L.R. (3d) 264, atparagraphs 21–23; Ferguson v.

Canada (Citizenship and Immigration), 2008 FC 1067, 74 Imm. L.R. (3d) 306 (Ferguson), at paragraph27; I.I. v. Canada (Citizenship and Immigration), 2009 FC 892, at paragraphs 20–21. The applicant’s evidence was reasonably found tobe of insufficient probative value. [69] Finally, the respondent says that the Bill of Rights is of no use to the applicant as fundamental justice has been held to have thesame meaning as natural justice. The applicant also fails to establish how revoking Canadian citizenship for fraud or misrepresentationengages

section 7 of the Charter, never mind how it actually breaches it. C. Applicant’s Supplementary Written Submissions

(1) The Court has Jurisdiction to Hear Submissions on a New Issue [70] The applicant submits that a new issue not previously raised can be argued to take advantage of a change in the law so long as amatter remains in the legal system: R. v. Wigman, (SCC), [1987] 1 S.C.R. 246 (Wigman); R. v. Weir, 1999 ABCA 275,250 A.R. 73 (Weir). [71] The applicant says that an important consideration for the Supreme Court of Canada in Wigman was the fact that the CriminalCode, R.S.C., 1985, c. C-46,

section 618 provided that an appeal could be made on any question of law, rather than any question uponwhich leave was granted. The applicant says that this wording is similar to the jurisdiction granted to the Federal Court under theFederal Courts Act. The applicant points specifically to paragraph 18.1(3)(

a) and paragraph 18.1(4)(

c) which respectively allow theCourt to order a federal board, commission or other tribunal to do any act it has unlawfully failed or refused to do, and also allow theCourt to grant relief if satisfied that the board or tribunal erred in law, whether or not the error appears on the face of the record. There isno restriction limiting the Federal Court’s jurisdiction to only those issues that are referenced in the applicant’s initial submissions. [72] The applicant submits that the issue of the revocation of his Canadian citizenship remains a live issue within the judicial system,and this Court has jurisdiction to consider arguments on the change in the law.

(2) The Change in Law

[73] In Ramirez, above, the Court found that complicity in international crimes, such as crimes against peace, war crimes and crimesagainst humanity, could be established on the basis of personal and knowing participation. Once it was determined that a group hadcommitted international crimes, the assessment would consider whether the person concerned was complicit due to his or her knowledgeof the crimes and agreement to their commission. If an organization was found to have a single, brutal purpose, membership alone wassufficient to establish prima facie proof of personal and knowing participation.

This is the standard that the GIC used in determining thatMr. Oberlander was complicit in Ek 10a’s criminal activities: Guidelines,

section 7.2. [74] The Supreme Court of Canada’s recent decision in Ezokola, above, overrules this Federal Court of Appeal jurisprudence. Thepersonal and knowing standard was rejected due to the lack of a link to the alleged crime or the criminal purposes of the organization.This test was replaced with a consideration of whether “an individual has voluntarily made a significant and knowing contribution to agroup’s crime or criminal purpose”: Ezokola, above, at paragraph 8. [75] Without deciding whether it provided a full account of Mr.

Oberlander’s activities with Ek 10a, Justice MacKay accepted Mr.Oberlander’s description of his duties. This variously included: cleaning uniforms; working with the kitchen staff; occasionallyregistering ethnic Germans; dealing with supplies; interpreting for the German officers with local authorities; searching for the graves ofGerman soldiers; organizing local entertainment for German troops; promoting public health matters; and, occasionally, serving as aninterpreter during interrogation sessions (Oberlander (2000), above, at paragraphs 44–48).

Notably, Justice MacKay found that Mr.Oberlander had no involvement in Ek 10a’s brutal or criminal activities: Oberlander (2000), above, at paragraph 12. The applicantsubmits that his involvement strongly suggests that his contributions to Ek 10a were minor in nature. [76] The GIC has not rendered a determination as to whether Mr. Oberlander’s actions constituted a significant contribution to thecriminal purpose of Ek 10a. Hence, the decision is in error and must be quashed. D.

Respondent’s Supplementary Written Submissions [77] The respondent argues that the issue is whether a finding made by the GIC in 2007, which was upheld by the Federal Court ofAppeal in 2009, may be reopened in this proceeding to overturn the GIC’s 2012 determination regarding duress. The respondent submitsthat the applicant is asking the Court to overturn a decision of the Federal Court of Appeal.

This decision was a final determination thatthe applicant was complicit in Ek 10a’s war crimes and crimes against humanity, and is res judicata. [78] Res judicata denies a party the ability to relitigate an issue unless special circumstances exist. Special circumstances may beestablished if it is demonstrated that the decision was clearly wrong, or if it would be in the interest of justice to permit the matter to berelitigated. The respondent submits that there are no special circumstances in this proceeding to permit the Court to overturn the FederalCourt of Appeal’s final decision.

Ezokola does not provide a basis for finding that the GIC’s decision on complicity was clearly wrong,and it would not be in the interests of justice to reconsider the matter. [79] Issue estoppel is a branch of res judicata that prevents the relitigation of constituent issues or material facts that were previouslyresolved: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 (Danyluk), at paragraph 20.

Issue estoppel applieswhen three criteria are met (Danyluk, above, at paragraph 25): the same question has been decided in previous litigation; the priorjudicial decision was final; and, the parties to both proceedings are the same. [80] The respondent says that these criteria are met in the present proceedings. The legal question of whether the applicant wascomplicit in the actions of Ek 10a was decided by the Federal Court of Appeal: the appeal was allowed only on the issue of duress,upholding the GIC’s determination on complicity. The Federal Court of Appeal’s decision on complicity was final.

A judgment need notdispose of litigation in its entirety to be final. If it disposes of any substantive interlocutory issue, res judicata will apply: Régie desrentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, [2013] 3 S.C.R. 125 (Régie des rentes du Québec), at paragraph 30.There is also no doubt that the parties to the litigation are the same. [81] The respondent says that Wigman, above, is distinguishable from this proceeding. In Wigman, the accused was appealing aconviction of attempted murder. The law of attempted murder changed.

The matter of whether the accused could be guilty of attemptedmurder was still before the Court. This cannot be compared to this proceeding where the issue of complicity has been conclusively andfinally dealt with in previous litigation concerning a different GIC decision. [82] In order to qualify as being “in the judicial system”, one of three criteria must be met (R. v. Sarson, (SCC),[1996] 2 S.C.R. 223, at paragraph 27; R. v. Thomas, (SCC), [1990] 1 S.C.R. 713 (Thomas); Metro Can ConstructionLtd. v.

Canada, 2001 FCA 227, 203 D.L.R. (4th) 741 (Metro Can Construction), at paragraph 5): an appeal has been launched to theSupreme Court; an application for leave has been made within the time; or, an application for an extension of time is granted based onthe criteria that normally apply in such cases. The respondent says that this proceeding does not fit into any of these situations.

TheFederal Court of Appeal’s decision in relation to complicity was final; it was not appealed to the Supreme Court; and, this issue is nolonger in the judicial system. [83] The Court can hear an issue that is res judicata if special circumstances exist: Danyluk, above, at paragraph 63; Giles v.Westminster Savings and Credit Union, 2010 BCCA 282, 5 B.C.L.R. (5th) 252, at paragraph 63. However, neither the Federal Court ofAppeal nor the Supreme Court of Canada have ever found evolving jurisprudence to be sufficient to justify relaxing the application ofissue estoppel: Apotex Inc. v.

Merck & Co., 2002 FCA 210, [2003] 1 F.C. 242 (Apotex), at paragraph 35; Régie des rentes du Québec,above, at paragraphs 24, 30–31 and 40; Metro Can Construction, above, at paragraph 5. [84] A change in law may only constitute special circumstances where the change in law renders the decision clearly wrong (Apotex,above, at paragraphs 35–36; Sanofi-Aventis Canada Inc. v. Pharmascience Inc., 2007 FC 1057, 61 C.P.R. (4th) 434, at paragraph 60,affd 2008 FCA 213, 67 C.P.R. (4th) 385), or it is in the interests of justice to relitigate the issue (Smith Estate v.

National Money MartCo., 2008 ONCA 746, 92 O.R. (3d) 641 (Smith Estate), at paragraph 42). [85] The respondent submits that the GIC’s decision is not clearly wrong, and that the GIC would have reached the same decisionunder the Ezokola analysis. The respondent says the applicant’s contribution to Ek 10a was not mere association and so is not the type of

complicity finding that the Supreme Court sought to rectify with Ezokola . Ezokola provides that an accused’s contribution can be directed to “wider concepts of common design, such as the accomplishment of an organization’s purpose[s]” (above, at paragraph 87). The applicant’s assistance in interpreting during interrogation sessions contributed to the identification of the enemies of the German Reich and their consequent execution.

This constitutes a significant contribution to Ek 10a’s criminal purpose. [ 86 ] The respondent also submits that relitigating the issue of the applicant’s complicity is not in the interests of justice. Rather, finality in this proceeding is in the interests of justice. [ 87 ] The only live issue remaining in the legal system is whether the applicant was under duress during his time with Ek 10a. Ezokola did not change the law on duress. The Report, which reflects the GIC’s reasons for the 2012 decision, makes no findings on complicity, so there is no need to consider this change in the law. E.

Applicant’s Reply to the Respondent’s Supplementary Written Submissions [ 88 ] The applicant argues that the issue is not a question of res judicata , but rather an issue of whether this matter is still in the judicial system. If the matter is within the system, a change in the law relevant to this application must be considered. [ 89 ] The applicant says that the issue of duress is directly related to the correctness of a finding of complicity. The proportionality element of the defence is not met as Mr.

Oberlander was not directly involved in any crimes, so his actions did not bring any harm to Ek 10a’s victims. The applicant also argues that, contrary to the respondent’s claim, the sessions in which he served as an interpreter did not end in executions. It would be an artificial exercise to consider the defence of duress in relation to a finding of complicity which is based on an understanding of the law that has been overruled. [ 90 ] In Wigman and Weir , both above, the relevant factor for whether to apply a change in the law was the fact that the cases were still before the courts.

In both cases, issues that were finally determined at trial, and not appealed, were permitted to be argued on appeal because the law had changed. [ 91 ] The applicant is not required to show special circumstances because this is not an issue of res judicata . The GIC applied a standard that the Supreme Court has held to be wrong. This is an error in law. [ 92 ] The applicant also submits that Ezokola was not concerned only with complicity by association, but with the level of contribution.

Justice MacKay affirmed “that no evidence was presented to the Court about any personal involvement of the respondent in criminal activities or war crimes”: Oberlander (2000), above, at paragraph 12. [ 93 ] The applicant says that it is not the Court’s role to make a factual finding as to whether Mr. Oberlander was complicit. However, the evidence does not establish that Mr. Oberlander’s role was significant to Ek 10a’s criminal purposes. There is no finding as to whether Mr. Oberlander’s activities as an interpreter significantly contributed to the purpose of Ek 10a.

The decision should be returned to the GIC for redetermination. VIII. ANALYSIS [ 94 ] This application gives rise to three principal areas of concern: res judicata (issue estoppel); procedural fairness; and unreasonable decision. Success by the applicant on any one of these issues will require reconsideration of the Decision. Hence, I will deal with each issue in turn. A.

Res Judicata—Issue Estoppel [ 95 ] The applicant says that following the filing of argument and before the scheduling of the hearing for this application, the Supreme Court of Canada released its decision in Ezokola , above, that fundamentally altered the law on complicity for international crimes in the context of an immigration matter. The applicant also says that the decision in Ezokola has a direct bearing on the GIC finding in this application that the applicant was complicit in war crimes and crimes against humanity.

Therefore, the applicant asserts that the GIC decision must be set aside because it does not comply with the requirements for complicity as established by the Supreme Court of Canada in Ezokola . The respondent resists this argument by raising res judicata (issue estoppel). [ 96 ] On the face of it, it seems to me that issue estoppel does apply in this case. In previous litigation, the Federal Court of Appeal upheld the GIC’s determination that the

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