Oberlander fights to stay after losing his citizenship

Friday August 10, 2001
Philip Jalsevac

Lawyer Eric Hafemann confirmed yesterday that Helmut Oberlander had his Canadian citizenship revoked on July 12, 2001.

At a news conference, Hafemann vowed to fight the move, which could lead to the deportation of the Waterloo man.

He will apply for a judicial review of a court ruling and cabinet decision to strip Oberlander of his citizenship over failing to disclose his role as an interpreter with a Nazi death squad in the Second World War.

The lawyer will also mount a legal challenge in the Superior Court of Justice.

"We will attack the constitutionality of this entire proceeding," Hafemann said.

Hafemann plans to introduce evidence that there was "no meaningful review" by cabinet of the ruling of Justice Andrew MacKay of the Federal Court of Canada on Oberlander's case.

"We were the subject of a charade."

An informal decision to revoke his client's citizenship was effectively made "virtually within days" of the ruling of Feb. 28, 2000, he claimed.

"I will not provide you with my proof," he told reporters. "You will have to wait for that to be presented in court."

The lawyer also claimed that not all members of cabinet were involved in the decision.

MacKay found there was no evidence that Oberlander, 77, was personally involved in war crimes. But he ruled "on a balance of probabilities" that he failed to disclose his role in a German Einsatzkommando unit when applying to come to Canada in the early 1950s.

Oberlander maintains he was never asked about his wartime record.

However, the judge's finding prompted Immigration Minister Elinor Caplan to recommend to the federal cabinet that Oberlander be stripped of citizenship. Now that cabinet has done that, the retired Waterloo developer faces a deportation hearing before the Immigration and Refugee Board.

Hafemann has claimed the judicial review -- which could make its way up to the Supreme Court of Canada -- must take place before any deportation hearing, which is technically referred to as an "inquiry."

However, Huguette Shouldice, a spokeswoman for the Ministry of Citizenship and Immigration, said: "There is no legal impediment to pursuing the inquiry. We do not have to wait for the decision of the judicial review. However, at the immigration inquiry, the person could ask the adjudicator to stay the inquiry until such a time as the court has made a decision."

Shouldice couldn't say whether an adjudicator would grant a stay in a case such as Oberlander's.

"We don't have any other case like that in our jurisprudence," she said.

If the government proceeds with a deportation hearing, Shouldice said "it could take some time."

There have been two recent cases in which individuals had their citizenship stripped for failing to disclose their records in the Second World War. The time between revocation and the beginning of a deportation hearing was about two months in one case and seven months in the other. Both men died during the proceedings.

Hafemann, meanwhile, criticized the government yesterday over its insistence that it would violate the Privacy Act to disclose cabinet's decision.

"They go through this scam," he said, adding that it means "every cabinet minister would get a notice and they would shut up."

Alain Laurencelle, acting press secretary for Caplan, repeated the government's position yesterday.

"Obviously, persons can comment on their own cases, but we're bound by the Privacy Act and we can't comment on the specifics of any case."

Hafemann said Oberlander is under stress over the whole affair and "sometimes he becomes despondent, as anybody would."


Defence lawyer Eric Hafemann is seeking a judicial review in Federal Court of a judge's ruling and subsequent cabinet decision to revoke the citizenship of Helmut Oberlander of Waterloo.

In a separate action in the Superior Court of Ontario, the lawyer plans to mount a constitutional challenge of "this entire proceeding."

Among his arguments, Hafemann claims his client was denied due process through the lack of any meaningful review by cabinet of the judge's finding that Oberlander failed to disclose his record with a notorious German unit in the Second World War.

While it is not automatic, the federal government could proceed with a deportation hearing before the Immigration and Refugee Board prior to the outcome of the judicial review. Oberlander could apply for a stay of the hearing before a board adjudicator pending the disposition of the judicial review.

If the stay is not granted, he could seek a separate judicial review of the adjudicator's ruling.