Oberlander v. Canada (Attorney General)

Oberlander v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-01-13
Neutral citation
2015 FC 46
File numbers
T-2127-12
Notes
A correction was made on November 20, 2015
Reported Decision
Decision Content
Date: 20150113
Docket: T-2127-12
Citation: 2015 FC 46
Ottawa, Ontario, January 13, 2015
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
HELMUT OBERLANDER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s. 18.1 of the Federal Courts Act, RSC 1985, c F-7 for judicial review of Order in Council PC 2012-1137 [Order in Council], dated September 27, 2012, which revoked Helmut Oberlander’s [Applicant or Mr. Oberlander] Canadian citizenship under s. 10 of the Citizenship Act, RSC 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 was instigated 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 determine whether 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 by knowingly concealing material circumstances within the meaning of s. 18(1) of the Act: Canada (Minister of Citizenship and Immigration) v Oberlander (2000), 185 FTR 41 [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, s. 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, the Federal Court of Appeal set aside the GIC’s decision for failing to consider whether Mr. Oberlander’s activities fell within Canada’s “no safe haven” policy and for failing to balance Mr. Oberlander’s personal interests against the public interest: Oberlander v Canada (Attorney General), 2004 FCA 213 at paras 58-60 [Oberlander (2004)]. The matter was sent back to the GIC for 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 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 Mr. Oberlander’s submission that he was under duress during his time with Ek 10a: Oberlander v Canada (Attorney General), 2009 FCA 330 at paras 22, 41 [Oberlander (2009)].
III. DECISION UNDER REVIEW [9] The reconsideration decision under review consists of the Order in Council and the Report to the Governor General in Council from the Minister of Citizenship and Immigration Concerning the Citizenship of Helmut Oberlander, Supplementary Report and Response to 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 in immigration law, in the Citizenship and Immigration Operational Manual ENF 18: War Crimes and Crimes Against Humanity, s. 7.4 [Guidelines], and under criminal law. The Report outlines the legal requirements for each of these 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. This test has three basic elements (Ramirez v Canada (Minister of Employment and Immigration), [1992] 2 FC 306, 89 DLR (4th) 173 (CA) [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, [1994] 1 SCR 701 at 837 [Finta]. 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 para 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 the credibility of his assertion that he was facing a threat of imminent, real danger: Equizabal v Canada (Minister of Employment and Immigration), [1994] 3 FC 514 (CA) [Equizabal].
[14] The second element of the Ramirez test is concerned with whether the individual claiming duress is responsible for his or her own predicament. The Report says that, contrary to Mr. Oberlander’s submissions, Justice MacKay made no finding as to whether he was conscripted. Even if the Minister were to accept Mr. Oberlander’s submissions, conscription is not conclusive of duress: Oberlander (2009), above, at paras 32-33. Mr. Oberlander was promoted and accepted a medal recognizing his service, leading to the conclusion that he was responsible for his actions during the duration of his service, regardless of whether he was conscripted: Caballero v Canada (Minister of Citizenship and Immigration) (1996), 122 FTR 291 (TD) [Caballero].
[15] The Report points to The Report of Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 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 a discharge 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 by disobeying an order be more serious than the harm to victims caused by the claimant’s actions: Ramirez, above, at para 40. As Justice MacKay found that Ek 10a was a killing squad, Mr. Oberlander was obligated to show that he feared death to justify his complicity. The Report says that Justice MacKay found Mr. Oberlander’s evidence that he joined out of fear of harm or the harshest of penalties to be inconsistent. Justice MacKay made no findings that Mr. Oberlander would have faced death if he had not complied with Ek 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 was under duress under the Guidelines’ requirements. The Report specifically highlights its finding that Mr. Oberlander had numerous opportunities to desert, given his many periods of leave, and the lack of evidence to establish Mr. Oberlander’s assertion that members who 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 to base its decision on immigration law and policy considerations, but says that criminal law can serve as an interpretive aid, if applied with circumspection: Nagalingam v Canada (Citizenship and Immigration), 2008 FCA 153 at para 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 the harm inflicted and the harm avoided: R v Ruzic, 2001 SCC 24 at paras 59-64 [Ruzic]; R v Hibbert, [1995] 2 SCR 973 [Hibbert].
[20] Whether the accused had a safe avenue of escape should be examined from an objective-subjective standard. This requires consideration from the perspective of a similarly-situated reasonable person: Ruzic, above, at para 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 para 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 of his 18th birthday. According to his own evidence, he showed his maturity by being the only male of the household, having worked to support his family and save for his education. In addition, Justice MacKay found that Mr. Oberlander “was comparatively well educated for his time” (thus, lending him to the task of interpretation). Therefore, Mr. Oberlander was not a boy or a child at the time that he joined 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 a transfer.
[21] The criminal law also requires a close temporal connection between the threat and the potential infliction of harm: Ruzic, above, at para 65. The Report again relies on the fact that Mr. Oberlander went on leave several times to find that there was no close temporal 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 the previous 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 these submissions as “a repeated attempt to re-litigate all the issues that were already decided by Justice MacKay or to attack decisions made by the Governor in Council that were later confirmed by the Federal Court and the Federal Court of Appeal”: Report at para 79.
[24] On the duress issue, Mr. Oberlander submitted that the Report’s account of his leaves and absences was wrong. The final Report says 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 had the 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: Valle Lopes v Canada (Citizenship and Immigration), 2010 FC 403 at para 107 [Valle Lopes], aff’d 2012 FCA 25.
[25] The final Report says that the Minister has measured Mr. Oberlander’s arguments against the findings of Justice MacKay, and has found that Mr. Oberlander has failed to demonstrate that he was under duress while remaining in the service of Ek 10a. The final Report recommends that Mr. Oberlander be deprived of his Canadian citizenship pursuant to s. 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 and capricious manner?
c. Did the GIC breach 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?
d. Did the GIC breach principles of procedural fairness, the Canadian Bill of Rights, SC 1960, c 44 [Bill of Rights], and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [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 [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 [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 at para 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 at para 18; Oberlander v Canada (Attorney General), 2008 FC 1200 at para 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 para 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 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 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 para 55; Oberlander (2009), above, at para 12; League for Human Rights of B'Nai Brith Canada v Odynsky, 2010 FCA 307 at paras 83-91 [Odynsky].
[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 para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 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
Décret en cas de fraude
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,
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu’il est convaincu, sur rapport du ministre, que l’acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d’une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l’intéressé, à compter de la date qui y est fixée :
(a) the person ceases to be a citizen, or
a) soit perd sa citoyenneté;
(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.
b) soit est réputé ne pas avoir répudié sa citoyenneté.
Presumption
Présomption
(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.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l’a acquise à raison d’une admission légale au Canada à titre de résident permanent obtenue par l’un de ces trois moyens.
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 [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 para 62; Ruzic, above, at para 40; R v Arsenault, 2009 NBPC 44 at para 60. A reasonable course of action to avoid imminent harm does not require heroics: Ruzic, above, at para 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 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 left town”: Oberlander (2000), above, at para 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 [Asghedom]. A future harm can satisfy the imminent harm element: Asghedom, above; Ryan, above. In Ruzic, above, the Court found an imminent threat of harm despite the fact that Ms. Ruzic travelled far from her attacker and months had passed between the threat and her criminal act.
[45] The Applicant says that the testimony before Justice MacKay established that the penalty for desertion or disobedience was death. Further, recent reports confirm that approximately twenty thousand German soldiers were executed during World War II for desertion. The fact 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 authorized leave and remaining at his solitary post could not result in execution for desertion. However, if Mr. Oberlander had not returned or had deserted his post, he would have put himself at risk of being executed. This would have placed the Applicant in close temporal connection to the harm threatened. The law does not require heroics, and the Applicant was not required to show that he risked his life to escape the German forces: Ruzic, above, at para 40; Ramirez, above. The Applicant says the Minister failed to consider where he could 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 to leaders, while the Supreme Court has said that different standards should be applied to individuals of different ranks: Finta, above, at para 24. There is no evidence that a person of Mr. Oberlander’s rank could have sought a transfer or asked to be discharged. The Nuremberg 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 a breach of procedural fairness. The requirements of procedural fairness vary in accordance with a number of factors, including the importance of the decision to the person concerned. Citizenship revocation engages Charter rights and other highly important issues: Odynsky, above, at para 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), [1999] 2 SCR 817 [Baker]; Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. The Federal Court of Appeal has held that it is a breach of the duty of fairness not to provide a person subject to the danger opinion process with the Minister’s Report and an opportunity to respond: Canada (Minister of Citizenship and Immigration) v Bhagwandass, 2001 FCA 49 at para 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 little weight 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 the possibility 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 of terror 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 before Justice 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’s erroneous 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 the Applicant. When credibility is in issue, procedural fairness, s. 2(e) of the Bill of Rights, and s. 7 of the Charter require that an oral interview be held: see Singh v Minister of Employment and Immigration, [1985] 1 SCR 177 at 213-14; Baker, above. The Applicant says that he was denied procedural fairness because he was not provided with an oral interview.
(5) Unreasonable decision [52] The Applicant submits that the GIC decision is unreasonable for several reasons (Applicant’s Record at 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 at para 19. The burden of establishing duress lies on the Applicant: Jimenez v Canada (Citizenship and Immigration), 2012 FC 1231 at paras 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 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 analyzed 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 paras 73, 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 para 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 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 immigration and citizenship law, and not in the criminal law context”: Canada (Minister of Citizenship and Immigration) v Copeland, [1998] 2 FC 493, quoted in Canada (Minister of Citizenship and Immigration) v Oberlander (1997), 155 DLR (4th) 481 at para 26 (FCTD).
[63] Notwithstanding this direction from the Court, the Applicant does not meet the criminal law test established in Ryan, above. The Applicant relies on unsubstantiated evidence to establish a threat. One’s subjective belief is not determinative, and the possibility of death for desertion does not excuse the commission of atrocities: Valle Lopes, above, at para 107. There also must be a close temporal connection between the threat and the harm threatened: Ryan, above, at paras 66-67. The Applicant asserts that the harm can be future-based, but in Caballero, above, the Court rejected the argument that imminent harm could be continuous and lacked a temporal limitation (at paras 30-31). The Applicant cannot meet the proportionality element of the Ryan test because there is no evidence of a threat against him: Arica v Canada (Solicitor General), 2005 FC 907 at para 25. The Respondent also disputes the 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 was provided with a meaningful opportunity to present his case; he was provided with a draft copy of the Report, which contained the Minister’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 his response to the Applicant’s reply submissions. The process requires finality at some point, and the Applicant has not pointed to any case law 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 or arguments, 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 paras 23-27; Boshra v Canadian Association of Professional Employees, 2011 FCA 98 at para 15. The Applicant had an oral hearing before the Federal Court, and the Act contemplates a paper process based on a written report produced following the hearing: Act, s. 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 be sufficient in cases where a risk of torture is alleged: Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 113-123; Lupsa v Canada (Citizenship and Immigration), 2007 FC 311 at paras 32-36.
[68] The Respondent also disputes the Applicant’s contention that this case turns on credibility. The Respondent says that the GIC did not make an adverse credibility finding against the Applicant, but rather found his evidence unpersuasive. The Applicant had the onus to present evidence showing that the defence of duress applied. The evidence he presented to establish duress was weighed against the evidence 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 at paras 21-23; Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067 at para 27 [Ferguson ]; I.I. v Canada (Citizenship and Immigration), 2009 FC 892 at paras 20-21. The Applicant’s evidence was reasonably found to be of insufficient probative value.
[69] Finally, the Respondent says that the Bill of Rights