Cabinet Ministers | May 22, 2001 | Eugene Harasymiw
AUSRL position on D/D

AUSRL position on D/D

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May 22, 2001        FAXED to all Cabinet members (except as noted)

Cabinet Ministers
Parliament of Canada
House of Commons
Ottawa, ON
K1A 0A6

Dear Members of Cabinet:

Citizenship and Immigration Minister Elinor Caplan’s recent decision—made against protestations from prominent and respected Canadians—to refer the case of Mr. Helmut Oberlander to Cabinet has prompted this urgent request. As you are aware, Federal Court Judge Andrew Mackay, using the questionable denaturalization and deportation process as a vehicle, has ruled that Mr. Oberlander obtained his Canadian citizenship 50 years ago by false representation or by knowingly concealing material circumstances, in violation of the Citizenship Act. The denaturalization and deportation process instituted by your government in 1995 requires that you, the Cabinet, and not the Courts, act as final arbiter of Mr. Oberlander’s citizenship and residence status.

We are unsure at this stage whether this frightening authority vests in Cabinet as a whole, or more likely in a select group within Cabinet. It is also unknown to the public how the ultimate decision-maker or “inner cabinet on denaturalization and deportation” is selected, by whom, on what basis, or to what degree outside lobbying pressure influences the Prime Minister during the selection of this final non-judicial tribunal (although it wouldn’t take an unusual degree of insight to deduce the source of such efforts).

Given the foregoing, the purpose of this letter is to ask the entire Cabinet to urge the “inner circle” to withstand the said lobbying efforts, reject the notion that Mr. Oberlander is actually guilty of anything and refuse to either strip him of his citizenship or order him deported from Canada.

Having personally followed the politics of the so-called war crimes issue for two decades, I place before you with the full confidence of AUSRL’s 1,000 members the following reasons why you must not only retain Mr. Oberlander’s citizenship and residence status, but also why you must do the honourable thing — i.e. scrap the denaturalization and deportation process before it is too late:

1. The denaturalization and deportation policy invites abuses of its victim’s (i.e. the accused’s) rights — in fact, no case has ever proceeded unless the victim’s rights are first violated):

- “evidence” gathered under false pretences by RCMP

- victim not cautioned as to his rights or as to nature of RCMP questioning

- victim never told consequences of RCMP questioning

- victim’s inability to cope with English language is taken advantage of

- victim is not told he is not obligated to give answers or to hand over documents.

2. Denaturalization and deportation fundamentally lacks fairness and circumvents due process:

- cases rely entirely on “balance of probabilities” onus (i.e. that a hypothetical interview took place 50 years ago, during which an official asked the victim a hypothetical question, to which the victim gave a hypothetical response)

- despite removal by Crown of all substantive charges of war criminality, yet the trials proceed

- denial of Charter rights, as Supreme Court has held that Federal Court trial process “is not determinative of the accused’s rights” — Canada v. Luitjens

- lack of judicial appeal means accused has rights determined by “judicial lottery”

- imposition of onus on accused to explain why he took no “corrective action”

- improbability of accused getting a fair trial with passage of a half century

- reneging on government promise made by Allan Rock: “The key criterion in all proceedings is the existence of some evidence of individual criminality. If that cannot be proven, no proceedings will be considered.” [emphasis mine]

3. The judicial approach to denaturalization and deportation has, on occasion, exhibited a lack of understanding of rules governing the application of evidence to cases of this nature. To help you understand the gravity of this point, we quote here from a critique of the Oberlander decision prepared by retired Justice Roger Salhany Q.C., Canada’s number one expert on evidentiary process:

“I have reviewed the evidence presented at the hearing and his [Justice Mackay’s] judgment and respectfully submit that the evidence does not support the conclusions reached by the learned judge.”

“…[A] judge who admits and relies upon evidence which is not admissible in law makes an error in law. A judge who makes an erroneous finding of fact from the evidence presented and relies upon that fact to reach a conclusion errs in law. A judge who draws an unreasonable inference from the testimony of a witness and relies upon it in reaching his decision errs in law. A judge who fails to apply the correct onus of proof or incorrectly applies it errs in law. In my view such errors in law were made in this case by the learned judge.”

“One is either a member of an organization or one is not. The fact that one may be forced to do the bidding of an organization does not make them a member…
[Judge Mackay’s] reasoning would mean that the janitor at the police station is not a member of the police force in a formal sense, but he is still a member because he provides a service to the police. In my respectful view, this conclusion is simply unreasonable.”

“…[T]he learned judge seems to have imposed the onus of strict proof, not upon the Minister, but upon Oberlander and the witnesses called on his behalf. Their testimony about matters in which they were directly involved was rejected because of frailty of memory, while the evidence of the Minister’s witnesses was totally accepted even though they were testifying about events of which they had no direct knowledge.”

“With the greatest respect, the learned judge was not present at the interview in 1970, does not know how and in what manner Oberlander was questioned, and therefore exceeds his role as a judge in assessing the credibility of the responses made by Oberlander when interrogated thirty years ago.”

“…[I]t is my opinion that the finding of the learned judge is not supported by the evidence and is unreasonable for the following reasons:

    (1) The finding that Oberlander was a member of Ek 10a in the face of the evidence was unreasonable.

    (2) There was no admissible and reliable evidence that Oberlander was ever questioned about his wartime activities by a Visa Control Officer and concealed them.”

4. To allow a select few in Cabinet to strip a person of citizenship and deport him, based on findings gleaned from a process critiqued in points 1 to 3 above flies in the face of present well-founded juristic principles, including:

(a) Everyone accused of criminal behaviour, or for that matter, of any offence (i.e. obtaining citizenship by false pretences) grounded in criminal acts is entitled to be tried before a criminal court in Canada. This principle is fundamental to our system of due process.

(b) The denaturalization and deportation process imposes on the accused an onus that is not supported at law. Denaturalization and deportation as a process ignores or obfuscates the defence of duress. In doing so it violates principles well-established in Canadian law, as in:

i) Paquette v. The Queen, [1977] 2 S.C.R. 189 and R. v. Hibbert, [1995] 2 S.C.R. 973, decisions of the Supreme Court, which hold that the common law defence of duress is open to accused, notwithstanding section 17 of the Criminal Code, who are peripherally involved in an offence as opposed to those who committed the offences as principals.

ii) R. v. Ruzic, [2001] S.C.C. (April 20, 2001) confirmed the principle that “criminal responsibility should be attributed only to an act that is the result of the deliberation of a free and conscious mind,” and that “a law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Charter…” This case also held that the accused bears an “evidential burden of laying a factual foundation for the defence of duress (if no such foundation may be inferred from the Crown’s case). Once the factual foundation is established, the Crown has the onus of disproving duress.”

Contrary to the rantings of political lobbies who urge your government to deal with accused on the basis they allegedly failed to avail themselves of conduct based on the concept of safe avenue of escape, the Supreme Court of Canada held that “the law is designed for the common man, not for a community of saints or heroes.” [emphasis mine throughout]

In summary, there is no justifiable reason why Mr. Helmut Oberlander should suffer the loss of his Canadian citizenship or be forcefully deported based on a process as flawed, mean-spirited, fundamentally unjust and un-Canadian as denaturalization and deportation. Denaturalization and deportation is a blight not only on the Canadian justice system, but also on the very fabric of Canadian society. The sooner you withstand the harangues of those who propose its continued misuse, and the sooner your government disabuses our legal system of this colossal blunder, the better. Canada’s international reputation will not be tarnished by your government’s unwillingness to resort to unjust mechanisms which seek to prosecute questionable violations of the law and “made-in-the-media” war criminality.

In an eloquent defence of due process, noted attorney Clayton C. Ruby, was quoted in the Toronto Globe & Mail (November 6, 2000) as stating: “We, as a society, are determined to avoid convicting the innocent, and to that end, we require an exacting standard of proof that is not required in everyday life, but is close to absolute certainty. This is not some peripheral, minor issue in a criminal trial. In the end, the choice is stark: Either we provide fair trials to those accused of crime … or we arbitrarily select some people for less-than-fundamental justice because it suits the attorney-general of the day.”

Ladies and gentlemen—justice will never be achieved through politicization. The victims of events in mid-twentieth century Europe will never be vindicated by turning the state itself into an instrument of repression. In short, you will never achieve justice by pursing the path of injustice.

Of necessity, this letter is not being sent to either Ms. Caplan or Ms. McLellan, since they must surely be disqualified from participating in each of the investigation, prosecution and judgment of such cases. Should they be foolhardy enough to take part in the deliberations of the “inner circle” on any referrals of denaturalization and deportation cases to Cabinet, then justice in this country is unlikely to recover.

Yours truly,

Eugene Harasymiw, LL.B.