| Oberlander v. Canada (Attorney general), 2009 FCA 330, [2010] 4 F.C.R. 395 |
A-589-08 |
A-589-08
2009 FCA 330
Helmut Oberlander (Appellant)
v.
The Attorney General of Canada (Respondent)
Indexed as: Oberlander v. Canada (Attorney General)
Federal Court of Appeal, Sharlow, Layden-Stevenson and Ryer JJ.A.—Toronto, October 27; Ottawa, November 17, 2009.
Citizenship and Immigration — Status in Canada — Citizens — Appeal from Federal Court decision dismissing judicial review of Governor in Council’s (GIC) decision revoking appellant’s citizenship on basis obtained by knowingly concealing material circumstances, i.e. serving as auxiliary with Einsatzkommando 10a (EK 10a) — Appellant arguing participation in EK 10a under duress — Whether record sufficient to oblige GIC to consider justification of duress — Conscription appropriately addressed under justification of duress — Factors related to duress raised by appellant in Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (F.C.T.D.) — GIC could not claim to be unaware of assertions therein — GIC’s reasons silent regarding allegations of duress — Sufficient evidence in record to address justification of duress — Open to GIC to reject duress as justification, but not to ignore it — Appeal allowed in part — Per Sharlow J.A. (dissenting): No reasonable explanation existing for appellant’s failure to assert duress in submissions to Minister, Federal Court.
This was an appeal from a Federal Court decision dismissing the application for judicial review of the Governor in Council’s (GIC) decision to revoke the appellant’s citizenship because he obtained it by knowingly concealing material circumstances, specifically that he had served as an auxiliary with the Einsatzkommando 10a (EK 10a) during World War II.
The appellant argued that he was conscripted and that his participation in the EK 10a was under duress because the penalty for desertion was execution. He claimed that although he did not expressly put forward the issue of duress, he had submitted the requisite evidence upon which it should have been assessed. The Federal Court concluded that the GIC’s reasons regarding complicity were adequate and reasonable.
At issue was whether the appellant could reasonably be found to be complicit in the war crimes committed by the EK 10a and if so, whether the record contained sufficient information to oblige the GIC to consider the justification of duress.
Held (Sharlow J.A. dissenting), the appeal should be allowed in part.
Per Layden-Stevenson J.A. (Ryer J.A. concurring): Membership in a limited brutal purpose organization creates a presumption of complicity that can be rebutted by evidence that there was no mens rea or actus reus. Here, the binding factual findings from Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (F.C.T.D.) (Oberlander 1) precluded any argument with respect to a lack of knowledge or participation. As such, the requisite mens rea and actus reus were met and the application Judge made no error when he concluded that the decision with respect to complicity was reasonable.
As to the issue of conscription with respect to a limited brutal purpose organization, it is appropriately addressed under the justification of duress. In Oberlander 1, the appellant raised factors related to duress, including that he would have been subject to the harshest penalties if he did not work for the EK 10a, and that he did not serve as an interpreter voluntarily but in fear of harm if he refused. Additional submissions by the appellant to the GIC included that he was forcibly taken from his home and that escape was punishable by death. The GIC could not claim to be unaware of these assertions. The GIC’s reasons were silent regarding the appellant’s allegations that he would have been executed if he had deserted. There was sufficient evidence in the record to require the GIC to address the justification of duress, notwithstanding that it was not labelled as such. It is open to the GIC to reject duress as a justification, but not to ignore it. The matter was therefore remitted to the GIC for consideration of the issue of duress.
Per Sharlow J.A. (dissenting): The record is equivocal on duress. No reasonable explanation exists for the appellant’s failure to assert duress in his submissions to the Minister or before the Federal Court. The GIC made no error warranting the intervention of this Court.
STATUTES AND REGULATIONS CITED
Citizenship Act, R.S.C., 1985, c. C-29, ss. 10, 18.
Order in Council P.C. 2007-801.
CASES CITED
considered:
Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (F.C.T.D.); Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3, 241 D.L.R. (4th) 146, 320 N.R. 366; Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, (1992), 89 D.L.R. (4th) 173, 135 N.R. 390 (C.A.).
referred to:
Oberlander v. Canada (Attorney General), 2003 FC 944, 238 F.T.R. 35; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, 223 D.L.R. (4th) 599; [2003] 5 W.W.R. 1; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610, 265 D.L.R. (4th) 154; 55 Admin. L.R. (4th) 191; Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123, 2009 DTC 5046; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, (1993), 107 D.L.R. (4th) 424, 21 Imm. L.R. (2d) 221 (C.A.); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, (1993) 163 N.R. 197 (C.A.); Barzargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (F.C.A.); Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66, (2000), 183 D.L.R. (4th) 713, 3 Imm. L.R. (3d) 169 (C.A.); Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 36 Imm. L.R. (3d) 167, 318 N.R. 365; Zazai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th) 281, 50 Imm. L.R. (3d) 107; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, 254 D.L.R. (4th) 200, 28 Admin. L.R. (4th) 161; Equizabal v. Canada (Minister of Citizenship and Immigration), [1994] 3 F.C. 514, (1994) 24 Imm. L.R. (2d) 277, 170 N.R. 329 (C.A.); Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.); Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, 292 D.L.R. (4th) 193, 72 Admin. L.R. (4th) 30.
AUTHORS CITED
appeal from a Federal Court decision (2008 FC 1200, [2009] 3 F.C.R. 358, 336 F.T.R. 179, 75 Imm. L.R. (3d) 114) dismissing the application for judicial review of the Governor in Council’s decision to revoke the appellant’s citizenship because he obtained it by knowingly concealing material circumstances. Appeal allowed in part.
APPEARANCES
Barbara L. Jackman and Ronald P. Poulton for appellant.
John Provart, Catherine C. Vasilaros and Tessa Kroeker for respondent.
SOLICITORS OF RECORD
Jackman & Associates, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1] Layden-Stevenson J.A.: On May 17, 2007, the Governor in Council (GIC), by Order in Council P.C. 2007-801, revoked the citizenship of the appellant, Helmut Oberlander, on the basis that he obtained it by knowingly concealing material circumstances, specifically, that he had been an auxiliary of the Einsatzkommando 10a (EK 10a) during World War II. Mr. Oberlander sought judicial review of that decision. A Federal Court judge (the application Judge) dismissed the application [2008 FC 1200, [2009] 3 F.C.R. 358]. This appeal is from that judgment.
[2] I conclude that the appeal should be allowed in part and the matter remitted to the GIC for determination with respect to the issue of duress.
Background
[3] Mr. Oberlander’s circumstances are extensively documented in decisions of the Federal Court and this Court: Canada (Minister of Citizenship and Immigration) v. Oberlander (2000), 185 F.T.R. 41 (F.C.T.D.) (Oberlander 1 [or the Reference]); Oberlander v. Canada (Attorney General), 2003 FC 994, 238 F.T.R. 35 (Oberlander 2); Oberlander v. Canada (Attorney General), 2004 FCA 213, [2005] 1 F.C.R. 3 (Oberlander 3); Oberlander v. Canada (Attorney General), 2008 FC 1200, [2009] 3 F.C.R. 358 (Oberlander 4). For present purposes, a detailed recitation is not required.
[4] Briefly stated, during World War II, the EK 10a operated behind the German army’s front line in the Eastern occupied territories. It was part of a force responsible for killing more than two million people, most of whom were civilians and largely Jewish. It has been characterized as a death squad. From 1941 to 1943, Mr. Oberlander served with the EK 10a as an interpreter and an auxiliary. In addition to interpreting, he was tasked with finding and protecting food and polishing boots. He lived, ate, travelled and worked full time with the EK 10a. From 1943 to 1944, he served as an infantryman in the German army.
[5] In 1954, Mr. Oberlander and his wife immigrated to Canada. They had two daughters, one of whom has a mental illness. Mr. Oberlander became a Canadian citizen in 1960. He did not disclose his wartime experience to Canadian officers when he applied to come to Canada, when he entered Canada, or when he applied for Canadian citizenship.
[6] In 1995, the process under sections 10 and 18 of the Citizenship Act, R.S.C., 1985, c. C-29 to revoke Mr. Oberlander’s citizenship was initiated. A reference to the then Federal Court of Canada, Trial Division (the Reference) was heard by Mr. Justice MacKay. The factual findings from the Reference are binding for subsequent purposes in relation to the revocation of citizenship, including this appeal. The penultimate finding was that Mr. Oberlander had falsely represented his background and knowingly concealed information and was granted citizenship on that basis.
[7] After receipt of Justice MacKay’s factual findings from the Reference, the Minister of Citizenship and Immigration (the Minister) issued a report to the GIC recommending revocation of Mr. Oberlander’s citizenship. The recommendation was accepted and the citizenship was revoked. Mr. Oberlander unsuccessfully applied for judicial review [Oberlander 2]. On appeal to this Court [Oberlander 3], Mr. Oberlander’s appeal was allowed and the Minister was directed to present the GIC with a new report addressing the concerns expressed by the Court. The Minister’s failure to address the purpose of the EK 10a organization, failure to address the issues of complicity and conscription and failure to provide an explanation to support the conclusion that Mr. Oberlander fell within the government’s “no safe haven policy” were specifically identified as defects in the Minister’s report [Oberlander 3, at paragraphs 59–60].
[8] The Minister issued a new report recommending the revocation of citizenship. The GIC accepted the recommendation and again revoked Mr. Oberlander’s citizenship. A second application for judicial review was commenced and dismissed. Mr. Oberlander appeals from that judgment.
Federal Court Decision
[9] At the outset of his reasons, the application Judge identified two central issues: whether the GIC erred in finding, first, that there were reasonable grounds to believe Mr. Oberlander was complicit in war crimes or crimes against humanity and as a consequence subject to Canada’s “no safe haven” policy and, second, whether the GIC properly considered Mr. Oberlander’s personal interests in revoking his citizenship.
[10] The application Judge determined that the standard of review with respect to the revocation decision is that of reasonableness. He noted that the Minister’s report constitutes the reasons for the GIC decision. He summarized the criteria the GIC relied upon to conclude that the EK 10a was a limited brutal purpose organization and he arrived at the same conclusion. Regarding complicity, he concluded that the GIC’s reasons were adequate and reasonable. With respect to the balancing of Mr. Oberlander’s personal interests and the public interest, the application Judge concluded that the reasons, although brief, justified the revocation of citizenship on the basis that the public interest outweighed Mr. Oberlander’s personal interests.
Standard of Review
[11] On an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is whether the reviewing court identified the appropriate standard of review and applied it correctly: Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans), 2006 FCA 31, [2006] 3 F.C.R. 610; Telfer v. Canada (Revenue Agency), 2009 FCA 23.
[12] The parties agree, and I concur, that the application Judge correctly identified the applicable standard of review of the revocation decision as reasonableness.
The Legislative Provisions
[13] The pertinent legislative provisions are as follows:
CITIZENSHIP ACT
PART II
LOSS OF CITIZENSHIP
. . .
| Order in cases of fraud |
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, (a) the person ceases to be a citizen, or (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. |
| Presumption |
(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. |
. . .
PART V
PROCEDURE
. . .
| Notice to person in respect of revocation |
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and (a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or (b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances. |
| Nature of notice |
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address. |
| Decision final |
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom. |
The “No Safe Haven” Policy
[14] This Court previously determined in Oberlander 3 that the policy at the relevant period is as stated in a public report entitled Canada’s War Crimes Program. Annual Report 2000-2001, the pertinent portions of which are as follows:
The policy of the Government of Canada is clear. Canada will not become a safe haven for those individuals who have committed war crimes, crimes against humanity or any other reprehensible act during times of conflict.
Over the past several years, the Government of Canada has taken significant measures, both within and outside of our borders, to ensure that appropriate enforcement action is taken against suspected war criminals, regardless of when or where the crimes occurred. These measures include co-operation with international courts, foreign governments and enforcement action by one of the three departments mandated to deliver Canada’s War Crimes Program.
Canada is actively involved in supporting the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and has ratified both the International Criminal Court Statute (ICC) and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts. Canada was the first country to introduce comprehensive legislation incorporating the provisions of the ICC Statute into domestic law. This legislation, The Crimes Against Humanity and War Crimes Act, came into force on October 23, 2000.
. . .
World War II Cases
. . .
The government pursues only those cases for which there is evidence of direct involvement in or complicity of war crimes or crimes against humanity. A person is considered complicit if, while aware of the commission of war crimes or crimes against humanity, the person contributes, directly or indirectly, to their occurrence. Membership in an organization responsible for committing the atrocities can be sufficient for complicity if the organization in question is one with a single, brutal purpose, e.g. a death squad.
Issue
[15] No issue is taken with the finding that the EK 10a was a limited brutal purpose organization. The dispute centers on whether Mr. Oberlander could reasonably be found to be complicit in the war crimes perpetrated by this group and whether, if the answer is yes, the issue of duress arises.
The Position of the Parties
[16] Mr. Oberlander argued before the application Judge and before this Court that membership in a limited brutal purpose organization is insufficient to establish complicity. More particularly, he contended that mens rea must include a shared common purpose as well as knowing and meaningful participation. His more nuanced argument regarding duress was not placed squarely before the application Judge.
[17] The Attorney General (AG) asserted that the analysis must be centered on the limited brutal purpose organization because the law, in this context, requires only membership, knowledge and involvement. If these criteria are met, complicity is made out. The AG conceded that the issue of duress is available to overcome or absolve culpability, but maintained that it was not advanced to the GIC. In reply, Mr. Oberlander countered that, although duress was not specifically pleaded, the issue was evident from the record.
Analysis
[18] The jurisprudence teaches that membership in a limited brutal purpose organization creates a presumption of complicity that can be rebutted by evidence that there was no mens rea (knowledge of the purpose) or actus reus (direct or indirect involvement in the acts). In other words, while membership per se is insufficient to establish complicity, it does create a rebuttable factual presumption. See: Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), at page 317; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at page 321; Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.), at pages 440 and 442; Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (F.C.A.), at paragraph 10; Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.), at paragraphs 31 and 32; Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at paragraph 11; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, 318 N.R. 365, at paragraph 6; Zazai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 303, 259 D.L.R. (4th) 281, at paragraphs 15 and 16.
[19] The Citizenship and Immigration Canada, Enforcement Manual (ENF), Chapter ENF 18 (War crimes and crimes against humanity) contains ministerial guidelines regarding the factors to be considered in assessing allegations of war crimes (the ministerial guidelines). These ministerial guidelines are compatible and consistent with the jurisprudence.
[20] In the normal course, the Minister bears the onus of establishing the requisite elements of complicity. The burden of proof is more than suspicion but less than the balance of probabilities: Ramirez. It may also be referred to as “reasonable grounds to believe”: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100.
[21] In this case, the binding factual findings from the Reference preclude any argument with respect to a lack of knowledge or participation. Justice MacKay found as follows:
• Mr. Oberlander was a member of EK 10a [at paragraph 54];
• Mr. Oberlander could not have been unaware of the function of the unit. He acknowledged that at some time while serving with EK 10a he was aware of its execution of civilians [at paragraph 27];
• Mr. Oberlander served as an auxiliary with the unit and he lived and travelled with men of the unit. Its purposes he served [at paragraph 54].
[22] Because these factual findings are binding, the requisite mens rea (knowledge) and actus reus (in this case indirect participation) are met. The application Judge made no error in applying the standard of review when he concluded that the decision with respect to complicity was reasonable.
[23] Regarding the issue of conscription, Mr. Oberlander maintained before this Court that he was conscripted and that his participation in EK 10a was under duress because the penalty for desertion was execution.
[24] Both the jurisprudence and the ministerial guidelines provide that the justification of duress is available to absolve complicity: Ramirez; Equizabal v. Canada (Minister of Citizenship and Immigration), [1994] 3 F.C. 514 (C.A.) (Equizabal).
[25] To establish duress, the jurisprudence requires the individual to demonstrate there was imminent physical peril in a situation not brought about voluntarily and that the harm caused was not greater than the harm to which the individual was subjected (Equizabal).
[26] The ministerial guidelines similarly require that three conditions be satisfied. Duress may be established where:
• it results from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person;
• the person acts necessarily and reasonably to avoid this threat;
• the person does not intend to cause a greater harm than the one sought to be avoided.
[27] Duress does not negate findings with respect to mens rea or actus reus. Rather, it operates to excuse the complicity so that the complicit individual is exonerated of culpability.
[28] Confusion has arisen as to where the issue of conscription is to be addressed when the organization in question is one of limited brutal purpose. The issue has been canvassed primarily in the context of organizations that do not meet the requisite threshold for characterization as a limited brutal purpose organization. Consequently, clarification in this respect is required.
[29] In my view, the issue of conscription with respect to a limited brutal purpose organization is properly examined as a factor in relation to justification. The AG does not disagree with this proposition.
[30] Each case will ultimately turn on its facts. The point is, where complicity is made out in relation to a limited brutal purpose organization, the facts may nonetheless give rise to the justification of duress.
[31] Mr. Oberlander acknowledged that he did not “expressly put forward” the issue of duress. However, he claimed to have submitted the requisite evidence upon which it should have been assessed. The AG countered that any such evidence was “neither compelling nor reliable . . . it was equivocal to non-existent.” From the AG’s perspective, “it is improper . . . to now make this assertion for the first time on appeal, when he failed to present any such evidence to the GIC and thus deprive the Minister of the opportunity to address it before the GIC.”
[32] In addressing conscription, the GIC stated, “[e]ven if one assumes that Mr. Oberlander was conscripted, that in no way means that he was not complicit in his unit’s subsequent brutal actions.” Further, “[c]onscription is not a barrier to complicity. If that were so, no draftee could ever be found complicit in his unit’s activities. Such a position is untenable.”
[33] I do not disagree with those comments and, as I understand the argument, neither does Mr. Oberlander. He contends that the statements are incomplete. He accepts that conscription, in and of itself, is not conclusive. However, he claims that the prospect of execution upon desertion, in combination with conscription, may be sufficient to found duress. Relying upon the comment in Ramirez that the “law does not function at the level of heroism” [at page 320], Mr. Oberlander maintains that the full evidentiary record was not assessed.
[34] The GIC’s reasons are silent with respect to Mr. Oberlander’s allegation that he would have been executed had he deserted. The question then is whether the record contained sufficient information to oblige the 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.
[35] The Minister was a party to the Reference. There, Mr. Oberlander raised factors related to duress. Justice MacKay noted Mr. Oberlander’s evidence that he was ordered to work for the Germans, he believed he had no alternative and would have been subject to the harshest penalties had he not gone as ordered (at paragraph 20). Further, Justice MacKay referred to Mr. Oberlander’s evidence that he was ordered by local authorities to report to German occupying forces to serve as an interpreter and his evidence that he reported not voluntarily by free choice, but in fear of harm if he refused (at paragraph 191). Although Justice MacKay made no findings in this respect, the GIC cannot claim to be unaware of these assertions.
[36] Mr. Oberlander’s submissions to the GIC related that at the age of 17 he was forcibly taken from his mother’s home and conscripted as a civilian interpreter by the SD, the police arm of the SS of the Nazi regime. He asked, “[h]ow can anyone be a member in any capacity of an organization against his will?” He stated that he was in the same situation as the witness Mr. Siderenko, a prisoner of war captured and forced to fight for the Germans. He claimed to have been forced into an infantry unit despite the fact that he had no military training. He maintained that all witnesses, including government witnesses with personal experience, agreed that escape was punishable by death. In his responsive submissions, he referred to voluntariness as a key issue and specifically noted the testimony of the government’s witnesses Sidorenko and Huebert that any attempts at escape were punishable by death.
[37] As stated previously, the GIC linked the issue of conscription to the matter of membership in the organization. However, I have concluded that, in a limited brutal purpose organization, conscription is appropriately addressed under the justification of duress. The ministerial guidelines expressly refer to duress and they delineate the requisite conditions to be analysed in relation to it. In my view, the above-noted evidence ought to be addressed notwithstanding there was no specific argument labelled “duress”. That the AG does not regard the evidence as compelling or reliable begs the question. It is for the GIC to make that determination. The burden of explanation increases with the relevance of the evidence in question to the disputed facts: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.).
[38] That said, the GIC’s observations regarding the absence of evidence or finding that Mr. Oberlander was mistreated after he joined the unit, or that he found its activities abhorrent or that he ever sought to be relieved of his duties are equally relevant.
[39] Undoubtedly, the revocation of Mr. Oberlander’s citizenship is a matter for the GIC to determine. However, in view of its serious consequences, it is critical that all relevant issues be considered and analysed. The process must not only be proper and fair, it must be seen to be so. It is open to the GIC to reject duress as a justification, but it must not ignore it. The clarification that conscription is to be considered in relation to the justification of duress, when dealing with a limited brutal purpose organization, should facilitate the analysis.
[40] With respect to Mr. Oberlander’s argument that the consideration of his personal interests was inadequate, the application Judge correctly observed that issues related to deportation are irrelevant because deportation constitutes a separate process. Relying upon the reasoning in Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, he noted the brevity of the reasons with respect to this issue and determined, despite their brevity, they plainly disclosed why Mr. Oberlander’s personal interests did not outweigh the public interest. Therefore, they were reasonable. I am not persuaded that the application Judge incorrectly applied the standard of review in relation to this issue.
[41] I would allow the appeal in part. Making the order that ought to have been made, I would remit the matter to the GIC for consideration of the issue of duress. Given the appellant’s partial success, the fact that he did not plead duress before the GIC and did not raise the issue before the application judge, I would not award costs.
Ryer J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[42] Sharlow J.A. (dissenting reasons): I respectfully disagree with my colleagues’ proposed disposition of this appeal.
[43] The record here is equivocal on duress, and there is no reasonable explanation for Mr. Oberlander’s failure to assert duress in his submissions to the Minister or the Federal Court. Unlike my colleagues, I am not persuaded that a valid explanation arises from the fact that the jurisprudence on duress in relation to limited brutal purpose organizations has not yet been well developed. I see no basis for concluding that Mr. Oberlander’s failure to assert duress until now was anything but a deliberate decision on his part.
[44] In these circumstances, it seems to me that the GIC made no error warranting the intervention of this Court when it did not address the issue of duress. For that reason, I would dismiss this appeal.