Operation: Last Chance.ARTICLES
Jul 8 7:20 AM ET news.nationalpost.com
Supreme Court rules federal cabinet must decide whether to deport suspected Nazi war criminal
Ian MacLeod

OTTAWA — The Supreme Court of Canada has rejected a government challenge in the case of Helmut Oberlander, a 92-year-old Canadian fighting for two decades to retain his citizenship since being exposed as a former member of a Nazi death squad.

The decision means a February ruling by the Federal Court of Appeal stands, sending the case back to the federal cabinet for reconsideration for the fourth time in 15 years.

Oberlander, an ethnic German, was born in Ukraine, and obtained Canadian citizenship in 1960, settling in Kitchener, Ont. and raising a family.

In 1995, the federal government learned Oberlander was conscripted by the German military at 17 to work as an interpreter for the Einsatzkommando 10a, a unit involved in war crimes. Oberlander maintains he was told he would be shot if he tried to escape.

The Federal Court subsequently ruled Oberlander had failed to disclose his wartime past and the minister of immigration successfully recommended cabinet revoke his citizenship.

That began a long-running series of legal challenges and appeals, triggering two additional cabinet decisions to strip Oberlander’s citizenship.

Oberlander appealed the latest cabinet revocation, in 2012, to the Federal Court and lost. The judge ruled he failed to show he had made any effort to leave the Einsatzkommando 10a.

“He served the Nazi cause for three or four years (and) surrendered at the end of the war,” the judge wrote. “He gave no convincing evidence that he ever gave any real consideration to ways in which he might extricate or distance himself from the brutal purpose of the organization to which he contributed.”

Oberlander appealed again.

While the case waited to be heard, the Supreme Court of Canada, in an unrelated 2013 judgment, said on this issue of complicity: “individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose.”

In February, the Federal Court of Appeal relied on that direction and overturned the 2012 Federal Court decision.

“The appellant was entitled to a determination of the extent to which he made a significant and knowing contribution to the crime or criminal purpose of the Ek 10a,” Justice Elanor Dawson wrote. “Only then could a reasonable determination be made as to whether whatever harm he faced was more serious than the harm inflicted on others through his complicity.”

The government sought leave to appeal to the Supreme Court, but the court dismissed the bid Thursday. As is custom, it gave no reasons.

Jewish organizations reacted with dismay.

“Oberlander was a member of a Nazi mobile killing unit that murdered more than 90,000 Jewish men, women and children during the Holocaust,” Shimon Koffler Fogel, chief executive officer of the Centre for Israel and Jewish Affairs, said in a statement.

“He lied about his complicity in these atrocities and gained Canadian citizenship fraudulently. Based on these facts, he should be deported without further delay.”

The Privy Council Office had no immediate reaction and a spokesperson could not say if or when the case will go back to cabinet for reconsideration.