Ukrainian News | Jan. 21 - Feb. 03, 2004 | Eugene Harasymiw
Article on Oberlander case

Oberlander decision puts politicians and Canada's justice system to the test

Ever since former Justice Minister Allan Rock announced, in 1995, the adoption of denaturalization and deportation as the approach to the alleged presence in this country of so-called "war criminals," -- the government having failed miserably to prove war criminality in their first 4 cases -- Canada's justice system has endured a steady descent into abject disrepute. That policy was taken up with vigor and defended in earnest by Rock's successor, Anne MacLellan, who claimed it was a "more efficient", rather than a more appropriate, way of dealing with the perceived problem and of obtaining results, rather than finding the truth.

Nine years, a dozen trials, and millions of tax dollars later, the government has failed to deport a single person. What is more, the process has been dealt a major blow which could yet be its undoing. Ontario Superior Court Justice Robert Reilly handed down a decision Jan. 06, 2004 which has major potential ramifications. The decision goes to the core of dangers inherent in attempting to pervert independent operation of the justice system for purely political goals in order to satisfy the agenda of powerful lobbies -- objectives which have nothing remotely to do with dispensing justice. Appointment of Irwin Cotler as the new Justice Minister not only confirms that dubious objective, but raises the question of whether those who prosecute the law should be answerable to political masters.

Helmut Oberlander was charged in 1995 with illegal entry into Canada allegedly brought about by his failure to disclose military membership and his commission of war crimes against civilians. For the next nine years he waged a largely unsuccessful battle in Federal Court to clear his name. However, it was not until the government, in a secret hearing before a secret committee of Cabinet, revoked his citizenship that the process began to unravel. It was the propriety of that July 2001 Cabinet hearing that was raised before Justice Reilly.

Oberlander's application, which sought to quash the Order-in-Council revoking his citizenship, stay his deportation, and direct the re-issuance of his citizenship was predictably resisted by federal prosecutors. Justice Reilly, dismissing government objections, granted Oberlander's stay and ruled that the Ontario Superior Court possesses jurisdiction.

The narrow issue the Ontario Court was asked to decide was whether it had jurisdiction to hear Oberlander's application on its merits. Before reaching his decision, Justice Reilly reviewed what he termed "ill-advised and inappropriate communications" between the Assistant Deputy Minister of Justice and the Associate Chief Justice of the Trial Division. He went on to review the trial court's factual finding that there was no evidence of war criminality or membership in one of the impugned units. Instead, the Federal Court found Oberlander had "probably" [quotation marks are Justice Reilly's] committed a misrepresentation when he applied to come to Canada.

The key contention is that the process, which resulted in Oberlander's loss of citizenship, does not accord with the principles of fundamental justice as guaranteed by the Charter, thereby denying him fairness and due process. It is to be kept in mind that this issue is yet to be heard by Justice Reilly on its merits.

Throughout, Eric Haffemann, Oberlander's counsel, painted a truly frightening picture of secrecy, potential bias and conflicting interests. Though his citizenship was at stake, Oberlander was not allowed to address Cabinet in person nor, it would appear, was his written submission placed before the hearing. As no record of the deliberations were made available, there was no indication whether a quorum of Ministers was present, which Ministers attended, what points were debated, what evidence was considered and who addressed the panel. If that were not enough, an issue has emerged as to whether government attorneys attempted to commit fraud on the Supreme Court by failing to provide any evidence of war criminality. If any of these contentions are accurate, the federal Justice Department, and every Canadian who believes in fair, open and transparent administration of justice, should be gravely concerned.

Most of the government's case will hinge on the contention that "Cabinet confidentiality as an integral part of Parliamentary government takes priority over any right of personal appearance before the tribunal or indeed any right to know [its] identity." This approach will have its obstacles. One is Justice Reilly's observation that he "could think of no consequence, apart from a sentence of several years imprisonment in a penitentiary, which would be more significant to a responsible citizen than the loss of that citizenship." As alluded to by Justice Reilly, the Universal Declaration of Human Rights, the Convention on the Status of Stateless Persons, and the Convention on the Reduction of Statelessness (to which Canada is a party), presume that domestic law will protect against both loss of citizenship and the inherent disabilities caused by rendering a person stateless.

Another is the Supreme Court of Canada's decision in the Babcock case where, in a 9-0 ruling, the country's top court affirmed that the public, including anyone suing the government, has a right "to challenge bad faith or otherwise improper decisions by federal cabinet ministers" in certifying documents as cabinet confidences under the Canada Evidence Act. The function of declaring cabinet secrecy is neither "to thwart public inquiry, nor is it to gain tactical advantage in litigation," the top Court added -- precisely Mr. Haffemann's point.

Of interest to everyone is the identity of the Cabinet Ministers who attended the hearing which stripped Oberlander of his citizenship. Justice Reilly said the material presented permitted him to infer that Minister Caplan and perhaps even MacLellan sat as members of the tribunal. If that were the case, the Judge suggested, "they were involved in a clear conflict of interest." The government has refused to reveal who was present and neither Minister is volunteering that information.

As the old maxim goes -- those who do not learn from history are bound to repeat it. The government surely knows that using the law to render fully naturalized citizens stateless aliens, and removing their basic rights and access to the courts in pursuance of a political agenda, while expedient, can only lead to injustice. History will look back on denaturalization and deportation for what it is -- the abuse of state prerogative to create a class of internal exiles whose rights are deemed too unimportant to inconvenience the blind, headlong pursuit of Rock-MacLellan-Cotler style "justice."

Eugene Harasymiw, LL.B. is president of the
Ukrainian Self-Reliance Association, Edmonton Branch