Marco Levytsky, National Affairs Editor.
Just when we thought the federal government’s assault on civil liberties known as Denaturalization and Deportation (D and D) had been mercifully laid to rest, we came across a November 8 Canadian Press story by Colin Perkel which opened with the following lead: “An elderly man has lost a key battle in his fight to stave off deportation for lying to Canadian immigration authorities about his Second World War activities with a Nazi death squad.”
Sounds like the person in question was quite a monster until one gets to paragraph 8 of the story in which we read that Federal Court Judge Michael Phelan found in his earlier September decision that “no evidence existed that (94-year-old Helmut) Oberlander took part in any atrocities.”
However, that decision did not stop Immigration Minister Ahmed Hussen from making the following grossly misleading statement: “Our government is pleased with the decision by the Federal Court to uphold the revocation of Mr. Oberlander’s citizenship. This decision further supports our mandate to deny safe haven in Canada to war criminals and persons believed to have committed or been complicit in war crimes, crimes against humanity, or genocide.”
When asked by this newspaper what crimes Oberlander had been charged with, Mathieu Genest, Press Secretary for the Minister, referred to Justice Phelan’s finding that: “It is uncontested that Oberlander obtained his Canadian citizenship by false representation or by knowingly concealing material circumstances by failing to disclose involvement in the SS at the time of his immigration screening.”
To put this in its proper perspective, Oberlander was found to have lied about his wartime past upon applying for citizenship through a civil process which we refer to as D and D. Under this civil process it is necessary only to show “on a balance of probabilities” that he misrepresented himself upon applying for citizenship. This means a 50% plus one chance – not the “beyond a reasonable doubt” standard of a criminal code charge. It also means that it is unnecessary to provide any evidence whatsoever that he committed any crime. To infer he is a war criminal, therefore, is totally false. In the Oberlander case, which dates back 23 years, the government did attempt to provide some kind of evidence, but that turned out to be a fabricated KGB affidavit obtained through torture and was thrown out by the court on those grounds. This was also the last time the government attempted to introduce evidence of any war crime – as its new policy eliminated the need to adduce evidence of criminal conduct in order to establish legal culpability. The D and D policy was adopted by then-Justice Minister Allan Rock in 1995 because the government lacked the evidence to prosecute alleged war criminals under the criminal code. Simply put, the government intentionally circumvented centuries-old legal safeguards designed to protect the innocent in criminal court proceedings for purely political gain. It then proceeded to utilize this tainted and inherently flawed process against other victims, mostly ethnic Ukrainians like Wasyl Odynsky, Volodymyr Katriuk and Joseph Furman, all of whom have since passed away.
It was for this reason that the Ukrainian Canadian Congress took a resolute stand against D and D. A resolution adopted by the 19th Triennial Congress of the UCC in Winnipeg on October 12, 1998 referred to “persistent, false and defamatory allegations linking the Ukrainian community in Canada with complicity in Nazi war crimes” adding that “abuses of the Canadian judicial process… have arisen in denaturalization and deportation cases against Canadian citizens based on the imported concept of guilt by inference.”
The resolution reiterated the UCC’s position that “Canada, as a leading nation in the world, has an international obligation to institute criminal proceedings against all Canadian citizens that committed war crimes” and that “Canada, with its long-standing tradition of judicial fairness, has a domestic obligation towards its own citizens to ensure that Canadians suspected of war crimes, living in Canada, are tried before Canadian courts of criminal jurisdiction in accordance with Canadian rules of evidence in criminal proceedings.”
It also pointed out that “the Canadian government has destroyed a significant portion of its records pertaining to the admission into Canada of post World War Two immigrants” and “is using citizenship revocation proceedings in an effort to conduct war crime trials without the safeguards enshrined by the Canadian Charter of Rights and Canadian standards of justice in criminal matters.”
In the case of Oberlander, Justice Andrew MacKay on February 28, 2000, concluded that even though Oberlander, on the balance of probabilities, lied about his wartime past, there was no evidence that he was involved, directly or indirectly, in committing any war crimes or any crimes against humanity. So, what were Oberlander’s activities during the war? As an ethnic German born and living in Ukraine, he was conscripted into the German forces at the age of 17 to serve as an interpreter for the Einsatzkommando. His duties included listening to and translating Russian radio transmissions, acting as an interpreter during interactions between the military and the local population, and guarding military supplies. He also said that he was forced into service under coercion.
Since 2000 there has been a long list of federal cabinet decisions to strip Oberlander of his citizenship, accompanied by a long list of appeals. In July 2016, the Supreme Court of Canada went so far as to rule that in order to deport Oberlander for trial, the government must first prove that he was a willing participant in death squad activities. The fourth and latest decision by cabinet to revoke Oberlander’s citizenship came in July 2017 and led to Justice Phelan’s September 2018, decision.
What is most disconcerting about this latest round is that this action is perpetrated by a cabinet led by none other than Justin Trudeau – son of the late Prime Minister Pierre Elliot Trudeau, who consistently resisted pressure to cut legal corners in the prosecution of alleged war criminals. As one of Pierre Trudeau’s insiders told Ukrainian News in September 2000, at a meeting in which the chief Liberal backroom organizers Keith Davey and Jim Coutts were present, Trudeau flatly told then-Justice Minister Robert Kaplan, who was pushing for this kind of policy, that if he could prove to him that all war criminals could be prosecuted in Canada – and he stressed all war criminals so that no particular groups would be segregated – he would be interested. However, since the justice minister could not prove to him this could be done, he was not interested.
Pierre Trudeau was a dedicated civil libertarian who believed in following proper Canadian standards of justice in criminal matters, as opposed to circumventing due process of law through such shortcuts as D and D.
Justin Trudeau would be well advised to honour the principles set out by his father, rather than pandering to lobby groups.