After 13 years before the courts, it’s unlikely that Helmut Oberlander has his bags packed and is sitting by the door waiting to be thrown out of the country.
The former interpreter with a Nazi killing squad won another legal battle last week, further delaying any chance he will be deported from Canada for lying about his wartime service.
The Federal Court of Appeal ruled 2-1 that the governor-in-council – the federal cabinet – erred in revoking his citizenship because it didn’t properly consider the implied claim he had served in the Einsatzgruppe killing squad under duress, even though it had evidence he was conscripted into the group.
Writing for the court, judge Carolyn Layden-Stevenson said “duress… operates to excuse the complicity so that the complicit individual is exonerated of culpability.”
“The question then is whether the record contained sufficient information to oblige the governor-in-council (GIC) to consider that allegation, along with the evidence of conscription and any other relevant evidence, to determine whether the justification of duress is made out, notwithstanding that duress was not the basis of Mr. Oberlander’s argument. In my view, there was sufficient evidence in the record to require the GIC to address this issue.”
The judge goes on to write, “It is open to the GIC to reject duress as a justification, but it must not ignore it.”
Jewish groups were outraged at the ruling, based, as one said, on a “hyper-technical point of interpretation.”
Canadian Jewish Congress (CJC) president Mark Freiman issued a statement saying, “CJC deplores the decision… It is frustrating that two judges of the Court of Appeal have seen fit to delay yet again a case involving a member of a mobile killing squad that goes back almost 15 years, this time on a hyper-technical point of interpretation.
“Oberlander’s defence claimed he was conscripted into the Einsatzgruppe. Cabinet assessed this argument and rejected it in recommending revocation. The Court of Appeal has now decided to send this matter back to cabinet for reconsideration based on its view that cabinet was unreasonable in not assessing essentially this very same excuse under the rubric of ‘compulsion,’ a concept that Mr. Oberlander himself did not see fit to raise in his own defence.
“Ultimately, the issue is not how he came to be attached to a mobile killing squad, but rather that he then lied about it to gain entry into Canada and to obtain Canadian citizenship.”
Congress urged the government to seek leave to appeal to the Supreme Court of Canada.
Canadian Friends of the Simon Wiesenthal Center (FSWC) called “a reconsideration of Oberlander’s status in Canada disappointing, if not shocking.”