Applicant

    - and -

    Respondent

[1]    In this reference by the Minister of Citizenship and Immigration, pursuant to s. 18 of the Citizenship Act¹ (the "Act"), I have determined, for the reasons that follow, that the respondent, Helmut Oberlander, was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by knowingly concealing material circumstances.

[2]    These Reasons are organized under the following headings, commencing at the paragraphs noted.

    para.

[3]    The reference, filed April 28, 1995, was made at the request of Mr. Oberlander, in response to a Notice in respect of Revocation of Citizenship, dated January 27, 1995, addressed to him, advising that the Minister intends to make to the Governor in Council a report within the meaning of sections 10 and 18 of the Act and section 19 of the Canadian Citizenship Act², on the grounds

that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that you failed to divulge to Canadian immigration and citizenship officials your membership in the German Sicherheitspolizei und SD and Einsatzkommando 10A during the Second World War and your participation in the executions of civilians during that period of time.³

[4]    That Notice also advised that if the Governor in Council is satisfied, upon the Minister's report, that Mr. Oberlander obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, Mr. Oberlander will cease to be a Canadian citizen on a date to be fixed by order of the Governor in Council. Further, the notice advised the respondent that he could request that the Minister refer the case to this Court and the Minister will not make a report to the Governor in Council unless the Court decides that the respondent has obtained Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances. That notice is in accord with s.18 of the Act.

[5]    When this reference was initiated by a Notice of Reference filed in the Court on behalf of the applicant Minister, the Court's Rule 920 provided for basic procedures preparatory to, and for, the hearing of this matter.⁴ In accord with that Rule the Minister served and filed on May 11, 1995 a summary of facts and evidence on which the Minister intended to rely in these proceedings, a list of the witnesses, with their addresses, which she proposed to call to testify, and a list of documents, subsequently added to by a supplementary list, upon which she intended to rely.

[6]    After the Notice of Reference was filed in May 1995, a number of preliminary issues were raised in this and in certain other cases which were then being considered together for case management purposes in preparation for hearings. That process was suspended when the reference proceedings in this and the other cases were ordered to be stayed⁵, a stay subsequently removed upon appeal to the Court of Appeal⁶, which decision was upheld by the Supreme Court of Canada⁷.

[7]    Following reinstatement of proceedings, pursuant to an Order of Mr. Justice Noël dated December 23, 1997 the respondent filed a reply dated January 13, 1998, to the Minister's statement of fact and evidence, and an affidavit of documents. Thereafter, both a representative of the Minister and Mr. Oberlander himself were discovered orally before the hearing of this application commenced in late August 1998.

[8]    After the hearing was underway, counsel for the respondent asked the Court to direct that the applicant Minister answer certain questions, earlier asked and not answered in the course of discovery, in regard to the case the respondent is expected to meet. I declined to so order, but I took this to be a request for directions defining the issue before the Court in this reference.

[9]    Questions might have been raised, by a demand for particulars, or by a motion to compel answers in discovery, in advance of the hearing, for the Reasons for Order of Noël J., dated December 23, 1997, directing arrangements pursuant to Rule 920 in preparation for hearing this reference, stress the nature of the proceedings as civil, not criminal⁸. Yet, while no further steps were taken before the hearing to clarify any uncertainties in the facts alleged by the Minister, the respondent is entitled to know the case he is expected to meet. That case I then defined from the text of the documents constituting the Minister's "pleadings", subject to any submissions on the matter that counsel for either party might then raise. No submissions on the matter were then made.

[10]    The purpose of this proceeding is to determine whether or not, as set out in the Notice of Reference, "the Respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or by fraud or by knowingly concealing material circumstances". That determination, when made, is one of fact⁹, based on the evidence adduced in this reference. It is not subject to appeal.¹⁰

[11]    The applicant does allege, as the basis for her concern, in the Notice of Revocation, that material circumstances were concealed by the respondent's failure "to divulge to Canadian immigration and citizenship officials your membership in the German Sicherheitspolizei und SD and Einsatzkommando 10 A during the Second World War and your participation in the executions of civilians during that period of time". The portion of that allegation concerning the respondent's "participation in the execution of civilians", is not reflected in any of the facts alleged in the Minister's Summary of Facts and Evidence.

[12]    That Summary, which must be taken to include all of the facts the applicant hopes to establish by evidence in this case, does not include any reference to personal commission by the respondent of atrocities or war crimes or his personal involvement in "the execution of civilians" or in criminal activities. Nor does it include any reference to his involvement in aiding and abetting others in the commission of criminal activities, in any sense comparable to "aiding and abetting" as those terms are used in s. 21 of the Criminal Code for Canada, R.S.C. 1985, c. C-46. Thus, in my view the Minister does not seek to establish by evidence that Mr. Oberlander was personally involved in the commission of atrocities or war crimes or criminal activities, or in aiding and abetting, in any criminal sense, others engaged in criminal activities. I affirm for the record that no evidence was presented to the Court about any personal involvement of the respondent in criminal activities or war crimes.

[13]    The Minister's Summary of Facts and Evidence does include reference to allegations that the respondent joined the Sicherheitspolizei and SD and Einsatzkommando 10A ("Ek 10a")¹¹ in or about October 1941, that he served with it in German-occupied eastern territories from 1941 to 1943 or 1944, and during that time the unit he served with was involved in criminal killing of civilians. This is the basis of the Minister's concern about false representation, or fraud or failing to disclose material circumstances, that is, Mr. Oberlander's association with a certain German police unit that participated in criminal killing of civilians in World War II. That association is specified as "membership", in the Notice of Revocation and as repeated in the Minister's Summary of Facts and Evidence, in S.S. organizations and in a unit, Ek 10a, known to have been engaged in criminal killing activity.

[14]    Ultimately, this association of Mr. Oberlander must be established and it must also be established that this was falsely misrepresented or knowingly concealed by the respondent when he was admitted to Canada as a landed immigrant. If those are established it is urged for the Minister that under s-s. 10(2) of the Act Mr. Oberlander would be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances.

[15]    In written submissions after the close of evidence, on behalf of the Minister it is specified that the ultimate issue is whether Mr. Oberlander obtained citizenship by false representation or fraud or knowingly concealing material circumstances. That accords with the Court's direction during the hearings.

[16]    Resolution of that issue before the Court is complicated, in review of the circumstances under which Mr. Oberlander came to Canada, by the lack of most documentary evidence relating to his application and his admission for permanent residence. That lack arises from the destruction of immigration files and records by or on behalf of the Government of Canada, including records relating to Mr. Oberlander's immigration. That destruction was effected under general government policies for destruction, after a fixed time, of records which are not considered likely to be required for any particular purpose.¹² In this case the only direct evidence of the circumstances concerning the immigration from Germany to Canada in the spring of 1954 by Mr. Oberlander and his wife, as immigrants to Canada, is the evidence provided by the Oberlanders themselves, except for a record known as Canadian Immigration Card (Landing Card) Imm. 1000 (Revised 1.4.53)¹³. That last form was maintained by the Immigration Department as a record of the Oberlanders' arrival and landing in Canada as permanent residents, on May 13, 1954 at Quebec, as signified by the Canada Immigration stamp entered on the form.

[17]    Mr. Oberlander was born in 1924 and raised in the town of Halbstadt, as it was known before the Second World War to the local community of Volksdeutsche, that is persons of German descent, in southeastern Ukraine. His forebears had lived there for more than 250 years, having originally come to settle there as members of a German Mennonite community. The town lies north of Melitopol in eastern Ukraine, and it was also then known, as it is now, as Molochansk or Molo…ansk,¹⁴ the name used then and since by its substantial Russian and Ukrainian populations. It is apparently also referred to as Halberstadt, a name used after German occupation in 1941, as appears from some of the documents produced in evidence. The town is in the portion of Ukraine that was within the U.S.S.R. in the years between the two world wars and again following the German occupation from 1941 to 1944, until the independence of Ukraine in 1991. Through the 1930's the enforced Sovietization of Ukraine meant great hardship for many people, including, it is said, the families of Mr. and Mrs. Oberlander. Many people suffered further in the period under German occupation and again after the subsequent return of Soviet forces.

[18]    The respondent's father, a doctor, had died when Mr. Oberlander was quite young. Thereafter he lived with his mother, who was a nurse, and with his sister and his grandmother, until he was 17 years of age. By the summer of 1941 Mr. Oberlander had completed ten grades in school, initial years in the German language and then after 1937, in Russian, the language required in Ukrainian schools by Soviet decree. In the result, after ten years of school, Mr. Oberlander was reasonably literate in both German and Russian, as well as Ukrainian.

[19]    After Germany attacked Russia in June, 1941 German troops arrived in Halbstadt by October of that year. Mr. Oberlander's testimony is that before the arrival of the German army in Halbstadt the adult men of German origin had been taken by the Russians. He believed they had been taken to Siberia. Shortly before German troops arrived, ethnic German families of the town, including Mr. Oberlander and his family, were detained by the Russians in a fenced compound at the railway station, awaiting trains to take them to the east. Before trains arrived to transport them, German army troops reached Halbstadt and the German families were freed from the compound and permitted to return to their homes. Soon thereafter ethnic Germans were summoned to the town hall to be registered and in that process Mr. Oberlander, because of his facility with languages, was directed to assist. This he did. He says that he was also involved for some time, until about the end of the year, in reconstruction and cleaning up damage near the city hall in the town.

[20]    The evidence is not consistent about circumstances and the time when Mr. Oberlander was taken by German authorities to serve as an interpreter with German forces. There was no conscription of non-Germans to serve with the German army¹⁵. It is suggested that Mr. Oberlander went voluntarily. His own evidence is that when a local authority, whom he believes was a policeman, came to his house, he says in about February 1942, to order that he report in two hours to the town hall to serve with the German troops as an interpreter, his mother was very upset. She was told that the war would soon be over, that his service was required and was due because the Germans had freed him and the family. Mr. Oberlander believed that he had no alternative and would have been subject to the harshest penalties had he not gone as ordered. He does not agree that he went voluntarily in the sense of a decision made without compulsion. He reported to the town hall as directed and the same day he was taken by vehicle, with two or three other, older ethnic Germans, to Melitopol.

[21]    The Minister's evidence, based in part on the evidence of John Huebert, is that Mr. Oberlander commenced serving as an interpreter in October 1941. Mr. Huebert, who testified at the hearings, was also from Ukraine, where he was born in 1917, in the village of Ladekopp, a few kilometres from Halbstadt. His forebears were Mennonites from Holland and he grew up speaking Mennonite and Russian. His evidence is that he too was taken by the Germans, in his case to be a chauffeur of vehicles, in October 1941, and thereafter he served, driving a truck, with Ek 10a, the same unit with which Mr. Oberlander served as an interpreter. Huebert had previously served as a truck driver with the Russian army, which he left when his vehicle broke down as the German army approached. He had then returned to his home at Ladekopp and only a few days later, probably in early October 1942, he was taken to be a driver for the Germans with Ek 10a.

[22]    Mr. Huebert recalls that the day he was taken by the Germans from his village to Halbstadt, Mr. Oberlander was already there, at Halbstadt, with the Germans, and that they travelled from Halbstadt towards Mariupol, which lies east of Melitopol. Huebert also recalls that in early May 1942 he and Oberlander had together driven, by one motorcycle with a side car, some 400 km from Taganrog, where they were then stationed, to their respective homes, on leave for 14 days, and thereafter they returned together, by motorcycle to Mariupol and then by truck to Taganrog. Mr. Oberlander does not recall that journey.

[23]    The respondent testified that he was ordered to serve as an interpreter and he left home in February 1942, a date he traces from family recollections. His family members recalled that he left home to go as an interpreter about one month before his mother moved away from Halbstadt in March 1942. In these proceedings he is clear in his recollection that he did not, after leaving, ever return to Halbstadt. It is unlikely that he 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 had left the town.

[24]    In my opinion, these differences about the timing and the circumstances of his commencing service as an interpreter are not significant for the ultimate issue. The evidence is clear that he did serve as an interpreter for the Sicherheitsdienst (SD) with Ek 10a. He admits that service.

[25]    Hearings in this matter included testimony from another, in addition to Messrs. Oberlander and Huebert, who had been taken from the local population to serve with Ek 10a. John Huebert, from the same area of Ukraine as the respondent, as we have seen, claims to have served from October 1941 with that unit. Nikolai Siderenko, a Ukrainian, originally from Taganrog and in recent years living in Donetz, had been serving with the Russian army at Novorossiysk until that city fell to the Germans in the fall of 1942. Soon after his capture and detention as a prisoner of war, he was ordered by his German captors, with other prisoners, to serve as an auxiliary policeman with Ek 10a. At that time at least, he did not speak German but he and other Ukrainians served as auxiliary police, guarding the premises and property of the unit and serving as local police to protect the unit or portions of it, wherever they were sent. Both Messrs. Huebert and Siderenko remember Mr. Oberlander serving as an interpreter with Ek 10a, including certain matters or incidents which Mr. Oberlander does not recall. Further, he did not recall, at the hearing of this matter, either Mr. Huebert or Mr. Siderenko as former fellow auxiliaries with Ek 10a. In my opinion both Messrs. Huebert and Siderenko were credible witnesses, though Mr. Huebert's testimony, because of language difficulties for him, was not consistently reliable.

[26]    When they first joined the unit all three of them, Oberlander, Huebert and Siderenko, were unaware of the designation of the unit or of its function in exterminating those perceived by the Germans as enemies. Huebert says he learned the name of the unit as Sonderkommando 10a in Taganrog. Siderenko claims not to have known its designation as Ek 10a perhaps until after he was captured and then interrogated by the Russian KGB after the war. Mr. Oberlander claims not to have known the unit's designation until he was interviewed by a German consular officer in 1970 in Toronto, in relation to a trial then underway in Munich of Dr. Christmann, one of the wartime commanders of Ek 10a. I find Mr. Oberlander's ignorance of the name of the unit with which he served for one and a half years or more, to be implausible, as I explain in assessing his evidence.

[27]    Mr. Huebert, as a truck driver, came to know of the killing activities of the unit, indeed he witnessed some executions, by shooting, first at Taganrog. Later at Krasnodar he saw people forced into a gassing van operated by Ek 10a as an execution chamber. He acknowledged he had driven German officers to pick up local civilians who were interrogated and he believed were later executed. Mr. Siderenko, soon after his service as an auxiliary began, observed Jewish persons summoned to meet and then marched or trucked away, and from reports of others accompanying them he learned that the Jews had been killed. He also witnessed the massacre of civilians, by German troops serving in his unit, in a Belarus village in 1943, in the course of anti-partisan operations. Mr. Oberlander was not seen by Messrs. Huebert or Siderenko at any assemblies of victims or any of the killing activities they witnessed.¹⁶ He claims not to have witnessed any of these killing activities and not to have been involved in any, but he could not have been unaware of this function of the unit. Indeed, he acknowledged that at some time while serving with Ek 10a he was aware of its execution of civilians.¹⁷

[28]    Evidence of the record of Ek 10a was provided to the Court by Dr. Manfred Messerschmidt, an internationally recognized military historian, accepted as an expert witness, with expertise in respect of the German attack on the Soviet Union and the conduct of police units behind the front lines in the occupied territories. Before his testimony I heard argument about the admissibility of his evidence and of the historic wartime documents upon which it was based. The Court ruled that documents certified by historians or archivists in accord with the Canada Evidence Act¹⁸ as documents prepared in the ordinary course of the activities of German army and other German authorities during World War II, were admissible. Further, as a trained and recognized historian, Dr. Messerschmidt's opinion evidence based on these documents and his own research, was admissible. I excluded as evidence portions of his written report and any testimony, based upon archival reports of investigations or prosecutions of others, in the U.S.S.R. or in Germany. There was no evidence of the nature or circumstances of those prosecutions or investigations,¹⁹ thus there is no basis for assessing reliability of any such reports. Their admission, in circumstances unknown to the respondent who had no opportunity to question witnesses who were referred to in reports, clearly would be prejudicial, in my opinion.

[29]    Dr. Messerschmidt's evidence included reference to the background, organization and functions of four Einsatzgruppen ("EG") designated A, B, C and D, operating under direction of Reinhard Heydrich, acting under Reichführer-SS Heinrich Himmler, in supervision of special police forces, with responsibility for ideological warfare and police action in occupied territories in the east, behind the army's front lines. One of their principal tasks was the elimination, by executions, of perceived enemies of the German Reich, in particular, communist leaders, Jews, Gypsies and others in all the eastern territories occupied by the Germans.

[30]    The report of Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IV, October 1946 - April 1949, sets out the Opinion and Judgment of the Tribunal in regard to some 22 surviving leaders of Einsatzgruppen operations in the east, including SS General Otto Ohlendorf, commanding EG D. The opinion describes in graphic terms the enormity of the crimes committed by the Einsatzgruppen A, B, C and D. It also notes that among other offences charged and established in the case of Ohlendorf and others was membership in the SS, an organization which, with the SD and others, was declared to be criminal by the International Military Tribunal in 1946 and by Article II of Control Council Law No. 10.

[31]    The Einsatzgruppen, and their operational sub-units, known as Einsatzkommandos or Sonderkommandos, were initially formed from members of various police forces from within Germany, including the SD or Sicherheitsdienst which was the internal security service of the SS, the Sipo or Sicherheitspolizei or Security Police of the SS, the Waffen SS or fighting arm of the SS, the Kriminalpolizei or Criminal Police, and some Gestapo. German police manpower was bolstered in the occupied territories, by Volksdeutsche or others, who were ordered or enlisted to serve as auxiliaries, as Messrs. Oberlander, Huebert and Siderenko were, working with the Einsatzkommando units.²⁰ Ek 10a was one of five commando or operational units within Einsatzgruppe D ("EG D"), the latter being the smallest of the Einsatzgruppen with somewhat more than 500 men including auxiliary personnel²¹.

[32]    Reports from EG D which operated in the south, in the Ukraine and elsewhere, show that by mid-December 1941 more than 55,000 people had been killed²² and by April 1942 more than 91,000²³. Ek 10a, one of the units within EG D, by its own reports to police headquarters in Germany, had carried out substantial execution activities, in Melitopol, in Berdjansk, Mariupol and Taganrog, and then in the summer and fall of 1942 at Rostov and Krasnodar, and in the area of Novorossiysk,²⁴ among other places. By the time there was a change of commanders of Ek 10a in August 1942, when Dr. Christmann succeeded Seetzen, the unit's first commander, its operational area, extending east to Rostov, but not then south to Krasnodar or Novorossiysk, was said to be "free of Jews"²⁵. Only later did Ek 10a move south from Rostov to Krasnodar, where large scale executions were committed, and then on to Novorossiysk. While the unit was at Krasnodar it is reported by a post-war German judicial inquiry that some 7,000 civilians were executed.²⁶

[33]    Mr. Oberlander's evidence is that he served with different units, of different sizes, as he was moved from place to place. That is not inconsistent with the operational pattern of Ek 10a which apparently moved in various sub-units from place to place as its operations carried on. From his home at Halbstadt Mr. Oberlander was taken to Melitopol, and after two or three weeks there he moved on to Mariupol and thence to Taganrog, where the unit, Ek 10a, was based from late October to the spring of 1942. He says that when he arrived there Taganrog was close to the front and the city was under continuing air attack as it was a major transit area for the exchange of German forces, with those rested for a few days relieving those fighting at the front.

[34]    After the Germans captured Rostov, east of the border of Ukraine, on the Don River at the east end of the Sea of Azov, Mr. Oberlander moved there with some element of Ek 10a. His evidence is that he remained there for three or four weeks, spent almost entirely as a solitary guard armed with a rifle, to protect against pilfering, a cargo of grain and sunflower oil on a barge in the river. Thereafter, from Rostov he moved to Krasnodar where the whole unit was stationed for one or two months. From there he was sent with a small advance party though not the first, he says, to Novorossiysk where he remained for some six months. There he was engaged in his first major action against partisan groups, action for which he was armed with a submachine gun. His name appears in a unit order, of Einsatzkommando 10a, as one of the interpreters designated to serve with an army unit acting against partisans. He was later awarded a medal, the War Service Cross Second Class, which by his testimony he had little interest in, although he says it was for rescuing two wounded German soldiers after Russian forces landed near Novorossiysk and attacked German forces.

[35]    By early 1943 the Russian counter offensive was underway. Mr. Oberlander and the group he was with from Ek 10a moved, ahead of advancing Russian forces, to the Crimea where, at Kerch they were again involved for about three months in fighting against armed partisan forces. From there they were moved by truck and train, with others, to the area of Mozyr, in Belarus. Of passing interest is Siderenko's testimony that the Ek 10a group he was with in the Crimea was not actively engaged in anti-partisan or other police action activities for some three months before they were moved to Belarus.

[36]    Einsatzgruppe D apparently did not remain as a separate police unit but elements of it, including Ek 10a, were sent to Belarus where, as part of a group that came to be known as combat group Bierkamp they were engaged in anti-partisan operations in the latter part of 1943. Mr. Oberlander's evidence is that before arrival of his unit at Mozyr he was flown to a German anti-partisan headquarters base in marshy country, which was probably the area known as the Pripjet marshes, and there he spent his full time, for some three or four months, listening to and monitoring Russian radio signals to and from and among major partisan units, and reporting on this frequently to his superiors at the base. He says he did not participate in other ways in actions against partisans in Belarus. The men of Ek 10a operated there in conjunction with the 11^th SS Cavalry division, a unit of the Waffen SS, in these operations²⁷, particularly after May 1943 when the combat group Bierkamp was disbanded.

[37]    From Belarus, Mr. Oberlander moved later in 1943 or early in 1944 with the remnants of Ek 10a, now apparently integrated with others, either as a part of Ek 6 or, as Mr. Oberlander claimed at the hearing, in a regular army unit, to the former Poland in the area near Lemberg, now Lviv in western Ukraine. He claims the unit he was with in Poland was of the army, that it was not an SS unit. There he was engaged in protection of military installations from partisans and in actions against them. He was wounded while there and spent a few weeks in hospital in early 1944.

[38]    At the beginning of April, 1944 he went on leave. His mother and his sister were both then living at Gnessen. He joined them at Litzmannstadt where his mother's application for herself and her family to become naturalized German citizens was processed. They succeeded in meeting the standards for citizenship and thereafter became German citizens. Mr. Oberlander's explanation is that his mother was concerned to qualify for any German pension or other benefits which might become available if Mr. Oberlander were killed after he was made a naturalized citizen, as was then facilitated for Volksdeutsche from the occupied territories seeking resettlement, particularly those who had served with the German forces, and their families. Mr. Oberlander's name was included in a letter to the SS and Police Leader in the district of Lublin, with the names of others having proven themselves, whom it was urged should be granted German citizenship, in accord with a decree by the Führer for acquisition of citizenship by Volksdeutsche serving with German forces. At all events, the family was processed together, on the same day, April 6, 1944, at Litzmannstadt.

[39]    Documents from that occasion were in evidence, from German archives, and they were described in the testimony of Dr. David Marwell, an expert witness on the resettlement and naturalization process for ethnic Germans from eastern occupied territories. He is an historian, formerly Chief of Investigative Research of the Office of Special Investigations in the United States Department of Justice, former Director of the Berlin Document Centre, and now Associate Director of Museum programs at the U.S. Holocaust Memorial Museum.

[40]    I return to these documents in discussion of evidence before the Court about Mr. Oberlander's status or association with Ek 10a. First, I complete his story of his involvement from April 1944 until the end of the war.

[41]    He returned to his unit, no longer Ek 10a, in Poland after he had qualified for German citizenship. From then on or even from an earlier date Mr. Oberlander recounts that his service was as a regular soldier in an army unit. As the Russian troops continued to advance, his unit was moved from Poland to Yugoslavia where they guarded vital properties against partisan attacks and occasionally went on "search and destroy" operations against the partisan forces operating under Tito. From Yugoslavia he and others retreated by way of Vienna to Germany. He was not able to recall, in these proceedings, the route, or the means of travel used en route to Germany except that he believes they went via Vienna.

[42]    He ended up at Torgau, south of Berlin, with a mixed group, known to him only as the Holz Battalion, apparently named after its commander. Since then he has had a document from the Holz Battalion, provided to him shortly before its surrender in 1945, a certificate typed on a card-size paper, which identifies him, by name and date of birth, with his place of birth "Giesen", as a non-commissioned officer, and as a member of the combat group "Holz", adding that he has been on duty since April 23, 1945. Just before the German surrender, he says he was put in charge of some wounded and some older men and they moved westward to surrender to American forces. Soon after their surrender they learned that the area they were in was to become subject to Soviet occupation and with a large group of other prisoners of war, Mr. Oberlander walked further west, ending up near Hannover, in the zone thereafter occupied by British forces, where he and others were held in a major P.O.W. camp. Thus ended Mr. Oberlander's war service.

[43]    Two aspects of that service require further review, his work with Ek 10a and other German forces, and the status or association he had with those forces.

[44]    Mr. Oberlander describes his duties variously, with no involvement in any of the more brutal or criminal activities of Ek 10a. When first taken from his home to Melitopol he was told to clean the boots and see to repair and cleaning of the Germans' uniforms, and cleaning their premises, tasks he continued to carry on from time to time. He worked with the kitchen staff, usually non-German auxiliaries, and he went on forays for food, other necessaries and fuel, to surrounding farms and communities, for the element of the unit with which he was serving. He worked with the Russian speaking auxiliary police who served with the unit. On occasion he registered ethnic Germans. He dealt with auxiliary drivers with the unit's motor pool, dealing with supplies, spare parts and gasoline. He interpreted for his German officers with local authorities. While at Taganrog he searched for and recorded locations of the graves of German soldiers for proper reburial in military cemeteries. While in Taganrog he also organized local entertainment for German troops on their rotation leave from the front lines, and he helped to oversee certain construction projects for the unit's accommodation. His radio monitoring activity in Belarus apparently reflected earlier experience he had with the unit first at Taganrog and later after it had become engaged in significant anti-partisan action. While at Novorossiysk he worked with German medical teams seeking to promote public health measures.

[45]    Initially he had no weapon, except for a rifle on the occasion of his guarding of the barge cargo at Rostov. Later he had a pistol, and a submachine gun when he was engaged in anti-partisan activities. Those activities became more a part of his duties at Novorossiysk, at Kerch in the Crimea, and after his return to Poland from Belarus. From then on he acknowledges he had a rifle, and his duties he says then were those of a regular soldier engaged for the most part in guarding against partisan attacks and in searching out partisans.

[46]    He admits to his involvement as an interpreter in occasional interrogation sessions when German officers questioned those detained as suspected of anti-German sentiments or activities.²⁸ Mr. Huebert, who witnessed executions by shooting and the parading of persons to the mobile killing vehicle for gassing victims used by Ek 10a, had no recollection of Oberlander or any other auxiliary interpreter being involved directly in those activities. Mr. Siderenko, who witnessed the assembly of Jews at Novorossiysk and their being marched or trucked off, ostensibly to be "re-settled" but really to be executed, as he was later advised, had not observed any auxiliary interpreter on those occasions, or later at the slaughter he had witnessed in the Belarus village. The absence of auxiliary interpreters on these occasions may be explained by the inclusion in the unit of Russian speaking Germans who came from Germany, regular police force members who also served as interpreters.

[47]    Mr. Siderenko testified he had observed Mr. Oberlander serving as an interpreter on two occasions. Once, when Siderenko and a colleague were permitted to intervene at an interrogation of a woman to represent that she was not a Jew, their representations were made through Oberlander as interpreter, and these succeeded in release of the woman. On the other occasion Mr. Siderenko was himself interrogated in relation to an attempted escape by a captured Russian general. Siderenko's explanation, delivered he says through Oberlander, was accepted and he was not punished. These incidents Mr. Oberlander did not recall when he testified in this proceeding, and as earlier noted he did not recall Mr. Siderenko as an auxiliary member of Ek 10a.

[48]    I accept Mr. Oberlander's description of his work within Ek 10a without determining, since there is no need to do so, whether it is a full and fair description of his activities from the time he was taken as an interpreter at Halbstadt until he left Belarus for Poland, in late 1943 or early 1944.

[49]    His status with Ek 10a, in my opinion, is clear. He was not a member of the Sicherheitspolizei or the SD in a formal sense. Both were organizations of the SS, i.e., the Shutzstaffel, the special organization begun within the National Socialist, or Nazi, Party to promote its political and social goals. It will be recalled that the Sicherheitspolizei was a general security police force of SS personnel, and the SD was a special security service, initially responsible for internal security of the SS itself. Both assumed wider roles in the police actions in the bitter ideological warfare waged by the Germans in the eastern occupied territories, and both the SS and the SD were declared to be criminal organizations under Control Council Law No. 10, Art. II, para. I(d) and by the International Military Tribunal.²⁹

[50]    Mr. Oberlander wore a uniform or parts of a uniform of the SD, with SD symbols. He was referred to in the Medal Bestowal List of Army High Command 17 as "SS-Mann",³⁰ a term by which he was also described in one of the documents from the naturalization process at Litzmannstadt in April 1944.³¹ Those documents³² also list that among documents submitted for his naturalization was an "assignment book, No. 012418, issued 25.3.44 by Sipo and SD, FP No. 35979"; they note concerning Mr. Oberlander "Relocated. Field Post No. 35979 on 3.10.41 from Molotschansk", that his work history is "Sicherheitspolizei and SD - SS-mann and interpreter from 1941 to present".

[51]    Those documentary descriptions might lead one to conclude, as Dr. Marwell suggested, that Mr. Oberlander was a member of the Sicherheitspolizei and SD were it not for the very clear evidence of Dr. Messerschmidt, the Minister's expert witness on auxiliary police operations in eastern occupied territories.

[52]    By Dr. Messerschmidt's testimony it was not possible for Mr. Oberlander to be a member of the SS, or of the Sicherheitspolizei, or of the SD. Only citizens of Germany, not Volksdeutsche as Mr. Oberlander was until 1944, could be members of the SS or its internal organizations.³³ Even though they wore SD uniforms and were referred to as SS-men and were subject to SS police jurisdiction and control, indigenous interpreters drawn from ethnic German communities in the Ukraine were not members of the Sicherheitspolizei and SD. The term SS-Mann was apparently used generally as a description to include one who was a member of the SS in a formal sense or one who was not a member but an auxiliary, with the equivalent rank of private, serving with an SS unit.³⁴

[53]    While he was not a member of the SS, or of its special security forces, the Sicherheitspolizei and SD, Mr. Oberlander was an interpreter, an auxiliary, serving the SD or others within a police unit, that is, Ek 10a, that was under the control of the SS. He says that he was not paid, but he was supplied a uniform by the summer of 1942, he lived, ate and travelled with the unit serving it and its members, even if that were by routine chores and as an interpreter. Whether he later served with other Einsatzkommando units, as was suggested from reference to his field post number appearing in the 1944 naturalization documents from Litzmannstadt, need not be determined. The evidence and his description of his role as an interpreter does not include any activity directly involved with Ek 10a's worst and most heinous operations. In his testimony Mr. Oberlander denied that he was ever a member of the SS, that he ever participated in execution of civilians or anyone, or that he assisted in such activity or that he was even present at executions or deportations. Yet Mr. Oberlander, by his testimony, acknowledges that he served as an interpreter with the SD³⁵, that the police unit was referred to as SD, and that after serving for some time he did know of its executions of civilians and others. He knew also its "re-settlement" practice for Jews, though he professes not to have understood the meaning of the latter as executions, until later³⁶, at Krasnodar. In all the circumstances, it is not plausible that he remained ignorant of the executions of Jews and others, as a major activity of the men with whom he served, until he was in Krasnodar.

[54]    In my opinion, the circumstances preclude any conclusion other than that Mr. Oberlander was a member of Ek 10a in any reasonable interpretation of the word "member". While there were formal requirements for membership in the SS, in the Sicherheitspolizei, and in the SD, there is no evidence of any such requirement for membership in Ek 10a, whether in its police elements or its auxiliaries, except selection to serve its purposes. Mr. Oberlander was selected, he served as an auxiliary with the unit and he lived and travelled with men of the unit. Its purposes he served, even if that service were not willingly given. Ek 10a, a police formation, was a unit under direction of the SS, from Berlin. Throughout his testimony he referred to the group he served with as "the unit". I find that while serving he belonged with the Ek 10a unit as a member. That is among allegations of the Minister in the Notice of Revocation and in the Summary of Facts and Evidence presented by the Minister in May 1995, which outlined the case upon which the notice was based.

[55]    From May 1945 Mr. Oberlander lived in a large British camp for German P.O.W.'s south of Hannover, for some two months. Food was in short supply and when opportunity arose for men prepared to work on farms to be released from the camp, he applied. Like other applicants he was examined by a doctor who certified him fit for farm work and who, he testified, examined him to ensure he did not have the "blood tattoo" worn by those who were members of the SS. Having no tattoo and having been found fit, he was examined by German officers, working with British officers, and a form for his discharge from the camp and from the "HEER", i.e. the German army, was then typed up. That form was delivered with him and others to the mayor of a village near Hannover where they were housed in the local school and worked on neighbouring farms until the school was required in the fall and their labour was no longer required. He was then permitted to leave, with the Certificate of Discharge earlier completed on July 26, 1945, then delivered to him.

[56]    The information included in the Certificate³⁷ identifies the person concerned, Mr. Oberlander, by his proper names, date of birth and with his place of birth as Halbstadt, without naming the country. The certificate bears his signature, as he testified. It also includes as his "civil occupation" the word "LANDARBEITER", i.e. a farm or agricultural worker, and it states his home address as "Haufstrasse, Burgdorf, Celle, Lüneburg", that is, in the town of Burgdorf, a town located fairly close to Hannover. The certificate sets out that the person to whom it refers was discharged on 26 Jul 1945 from the "HEER", i.e., the Army, on the form where instructions in English were for insertion of "Army", "Navy", "Air Force", "Volksstrum", or "Para Military Organization". That information may have come from Mr. Oberlander, though it is typed on the form and he testified it was completed by a clerk, not by him. Nevertheless, he essentially acknowledged in cross-examination³⁸, that when farm workers were wanted and those accepted would be released from the camp, where food was always in short supply, he provided information that would facilitate his release, including as his home address the address of a friend at the camp who agreed he might work on the farm of the latter's family in the area. He also noted that at that time he had no home address and did not know where his mother and family were.

[57]    Two other documents, completed in 1947, relating to Mr. Oberlander, were produced at trial, from German archives. One is a card, printed on both sides, described as one produced under the German de-Nazification program resulting from the Law of March 5, 1946 regarding Liberation from National Socialism and Militarism, a law adopted by the Allied Control Council for Germany. The document, a postal card, issued by the Public Prosecutor at Leonberg on 11/11/47 to Mr. Helmut Oberlander, student, at his then address at Korntal, states that "Based on the information in your registration form, the law of March 5, 1946, ... does not affect you".

[58]    The second document is a "Meldebogen" or registration form provided for under that same law of March 5, 1946. It bears Mr. Oberlander's signature and it is dated Sep. 19, 1947 at Korntal. It is completed with his birth date, it omits his birth place, and indicates his places of residence since 1933 as Halberstadt from 1933 to 1941, Wehrmacht [Armed forces] from 1942 to 1945 and Hanover from 1945 to 1947. In response to the question "Were you ever an enrollee, candidate, member, supporting member of the a. Nazi Party, b. General SS, c. Waffen SS, d. Gestapo, e. SD (Sicherheitsdienst)" and a number of other organizations, the form is completed with "no" after each organization, even though an asterisk after "SD (Sicherheitsdienst)" indicates a footnote that directs, as translated in English, "Also list secondary work here, e.g. agent", or in lieu of "agent" perhaps the translation should be "informer" as counsel for Mr. Oberlander submitted. In response to a question about "Membership in the Wehrmacht [Armed Forces], police formations, Reich Labour Service..." and "Exact designation or formation", the form has inserted upon it the entry "Infantry Regiment 159". It indicates his highest rank attained as "O.Gefr.", an abbreviated rank which the translator indicates is about the rank of lance corporal. Finally, in response to a question for "Information about your main occupation, income and assets since 1932", the form includes entries that in 1932, 1934 and 1938 he was a "Student", in 1943, "Wehrmacht" and 1945, an "Employee".

[59]    With the close of the farming work in the fall of 1945, having been provided with his Certificate of Discharge, Mr. Oberlander had moved to Hannover. There he worked at a canning factory, repairing roofs of buildings, until he learned in 1947 that his mother, and sister and grandmother, were living in Korntal, near Stuttgart. He was able to join them and thereafter, the reunited family moved into one room, an apartment of sorts. He applied for admission to a construction school, and after passing examinations, was admitted. He finished his studies as a certified construction engineer in 1952. In Korntal he had met and, in 1950, married his wife, and they lived with his family after he had finished fixing up a storage room for his wife and himself. There were five people then sharing two rooms, with a makeshift kitchen, and toilet facilities two floors below.

[60]    By 1952, when he was finishing his studies, relatives of his wife, who had moved to Canada in 1948, seemed to be getting well-established. Mr. and Mrs. Oberlander were in contact with them and one, in Kitchener, arranged employment for him if he were to come to Canada. The Oberlanders testified that they attended a presentation on Canada at a Canadian office in Stuttgart in 1952. After considering the matter further, in April of that year, they completed and submitted an application form to emigrate to Canada. An affidavit by Mrs. Oberlander's cousin, in Waterloo, Ontario, indicating he had secured a job for Mr. Oberlander and an undertaking to assist them on arrival in Canada, sworn a year later, on May 1, 1953, was suggested by counsel for the Minister as evidence that Mr. Oberlander's application was filed in 1953, but I am not persuaded of this. The affidavit was said by Mr. Oberlander to have been received a year after his application was made and to have been taken by him to Karlsruhe for his interview on August 14, 1953.

[61]    They heard nothing from Canadian officials for more than a year after filing their application. Meanwhile, Mr. Oberlander's work as a construction engineer and his work with architects was beginning to develop. He had acquired a car, but adequate housing was still not available and he and his wife continued to live with his family in the small two-room apartment. Then, by a form letter, undated in the translation provided to the Court, but said by Mr. Oberlander to have been received about June 1953, he was advised that the application to immigrate to Canada was accepted and if he were able to comply with civil and medical requirements "You and your family members shall be granted a visa". He was invited to bring specified documents, including a valid passport or travel document, chest x-ray photographs taken as directed, a police certificate, and discharge papers if he had served in the German or another army, and to appear on August 14, 1953 in the afternoon from 2 p.m. to 4 p.m., at the Canadian Immigration office at Karlsruhe. That he did, accompanied by Mrs. Oberlander.

[62]    At Karlsruhe, after submitting their documents to a receptionist, and waiting for a time, the Oberlanders say they were separately examined by medical doctors. Then they were interviewed together by another Canadian official who asked when they wanted to go to Canada, noting that the medical approval stamped by the examining doctor on their passports was valid only until December 14, 1953. Because that did not provide time to complete his commitments in construction work and to wind up their affairs in Germany, and suspecting there would be little construction activity in Canada in the winter, Mr. Oberlander and his wife decided to postpone departure until the following spring. They were advised they would have to produce new x-rays in the spring, for the medical approvals, based in part on the x-rays, were valid only for four months after August 14.

[63]    I will return to consider in more detail, their testimony concerning the processing of their applications to emigrate to Canada. First, I complete the story of their coming to Canada and settling here.

[64]    On February 23, 1954 the Oberlanders returned to the Canadian office in Karlsruhe and submitted new x-rays to the receptionist. After waiting, they say that their family passport was returned to them, stamped with a visa, and with a deadline for travel to Canada to arrive by June 23, 1954. They say they were not interviewed again but were told a letter would be sent to them with instructions to prepare for and to arrange transport to Canada. Those instructions they followed. They travelled to Bremerhaven where they boarded a ship bound for Canada and they landed at Quebec City on May 13, 1954. There they submitted a form earlier provided to them, regarding their landing, which was in evidence as the Landing Card, earlier referred to³⁹; they showed their passports and they were admitted to Canada without any questioning. Curiously, Mr. Oberlander's Landing Card indicates his place of birth as "Halberstadt, Germany" an error which the applicant Minister's representative in discovery acknowledged must have been made by immigration staff who completed the Landing Card when they had before them his passport which lists his place of birth as "Halberstadt, Ukraine".

[65]    From Quebec the Oberlanders travelled to Kitchener, Ontario, where, through Mrs. Oberlander's relatives, employment of Mr. Oberlander in construction work had been arranged. Since 1954 they have established their home and their family. In 1960 they applied for and were granted Canadian citizenship. Over the years since their arrival, Mr. Oberlander's work in commercial, apartment and housing development has apparently made a major contribution to the development of the Kitchener-Waterloo region.

[66]    While little was said in testimony or argument about Mr. Oberlander's application for, and the grant to him of, Canadian Citizenship, I note for the record that documentary evidence includes a copy of his Application for Citizenship⁴⁰ dated January 12, 1960, and a copy of a Description and of a Certificate of Citizenship⁴¹ for him, dated April 19, 1960. The application contains no request for a declaration by the applicant that he or she is of good character. The only reference to that requirement for citizenship appears in the decision of the County Court Judge, who, having examined the applicant, checked off on the decision form that he found him to be of good character. He checked as well that he found Mr. Oberlander to have been lawfully admitted to Canada for permanent residence.

[67]    Following their arrival in Canada two other investigations relating to Mr. Oberlander's wartime activities were undertaken prior to this proceeding, the first by German authorities and the second as a preliminary to this revocation proceeding.

[68]    In 1970 Mr. Oberlander was asked by a German lawyer, through the German Consulate in Toronto, to appear in Toronto and be interviewed in relation to charges under investigation in Munich, Germany, against a former commander of Ek 10a during the 1942-43 period, Dr. Christmann. Mr. Oberlander responded reluctantly but he agreed and was then interviewed, apparently by a German consular officer. A statement was then prepared from his interview, which Mr. Oberlander signed as his statement.⁴² He testified at this hearing that at the time of the interview he did not remember the names of the unit's commanders and that he did not know until that interview that the unit he first served with was known as Ek 10a. He says that he did then learn the charges under investigation by German authorities concerned the wartime activities of Dr. Christmann, one of the unit's commanders, whose name he said he did not, at that time recall, and others. A list of those to be investigated included his own name, as appears from the opening description of the document that he signed as his statement. His understanding from German authorities is that following the investigation the file was closed.

[69]    Mr. Oberlander's statement signed by him at the Consulate in Toronto, in its English translation, is dated 24 June 1970 and is identified at its beginning, as follows.

[70]    The statement then identifies Mr. Oberlander, and sets out his biographical background and a brief description of his activities during the war years, after the German army freed his family at Halbstadt in the fall of 1941. The statement is signed by Mr. Oberlander, and by the consular officer who interviewed him. I note that included in the documents submitted in this proceeding by the Minister is a copy of the decision, in German with some pages translated to English, rendered by the Regional Court at Munich, in March 1981, whereby Dr. Christmann was convicted of murder, and sentenced to prison, for his aiding and abetting in two mass executions in the Krasnodar area in late 1942 or early 1943.

[71]    In cross-examination of Mr. Oberlander in this proceeding counsel for the Minister raised several questions about this statement, in the main questioning why certain matters stated or acknowledged by the respondent in discovery or at the hearing of this reference were not referred to in the statement. Mr. Oberlander's repeated response was that he had given a voluntary statement about his wartime experience as he remembered it at the time, and the statement appeared to satisfy the consular officer who interviewed him. There is no other evidence of this investigation or about the circumstances of the interview, of the questions asked, directions given or the purposes sought to be met, except for Mr. Oberlander's, and his signed statement. What is set out in the signed statement may be considered here in evidence, since it is a statement said by Mr. Oberlander to have been given voluntarily and signed by him.

[72]    The statement is a relatively bland review of Mr. Oberlander's experiences during the war. He denies in the statement that he knew the name of his unit, indeed he also denies twice that Sonderkommando 10a or Einsatzkommando 10a were names known to him. Unknown to him also was Einsatzgruppe D. He also denies he had any medal except a wounded-in-action badge, and further, he denies he had been subjected to a denazification process. He states, with regard to the matter under investigation:

[73]    After describing some of the services he performed as an interpreter, and two occasions when he was in hospital, the statement notes that he was on leave several times, including one visit to his family in Halbstadt, the date of which he did not remember. He notes that he did not know who the leader of his unit was. The statement notes that he cannot remember the individual places where he went except for Taganrog, and it later refers to Rostov and his guarding of a barge, but he cannot remember Krasnodar or other places because Russian places had no name signs and he had no map. In his statement he denies knowing anything of the execution of Jews or mentally or physically disabled people by his unit and affirms that he did not observe anything himself, and no one told him anything about that at the time. He denies knowing anything about the execution of Jews in Rostov, or in Taganrog, or of the extermination of Soviet citizens in Krasnodar.

[74]    Both the statement of 1970 and the evidence in this proceeding have come some years after the events. It is perhaps not surprising that through the process of preparation for this hearing, after having had the Minister's documents, Mr. Oberlander's testimony differs in some important details from the 1970 statement. Both are similar in one respect. That is, the professed longtime ignorance of Mr. Oberlander in the 1970 statement, during his service with Ek 10a in the war years, about the atrocities committed by men of the unit with which he served. In the statement of 1970 he professed to know nothing of the execution of Jews or physically or mentally disabled people by his unit. He acknowledged in cross-examination that he did come to know of the executions of civilians by the unit probably when they were at Krasnodar. While he took no part he acknowledged that he knew of executions of civilians after interrogation by his unit, he knew of the activities for "re-settlement" of Jews, and he knew the work of an advance unit of Ek 10a that "arrived first in the city [Novorossiysk] which looked after the settlement of the Jews, before the main unit arrived"⁴³. His 1970 statement includes another matter of interest. In response to queries he states (in the English translation):

I note the statement deals only with his early life and service with the unit, Ek 10a, the matter apparently of interest in the German investigation and later trial of Dr. Christmann.

[75]    The second investigation occurred on January 25, 1995, when R.C.M.P. officers, with an interpreter, without any prior notice, called on the Oberlanders at their home in Waterloo, Ontario, and asked to talk to him. They advised they were from the R.C.M.P. war crimes unit, and that they wanted to interview him about some documents they wished to show him. His testimony is that when they assured him that he would not be charged with war crimes, he agreed to talk with them in the absence of his lawyer, but he refused to agree that the interview could be taped by them. On at least four occasions, recorded in the officers' notes of the interview, Mr. Oberlander expressed concern that he should consult a lawyer, but the officers continued their questioning, and only after the interview did they suggest that it might be wise for him to contact a lawyer. Notes were taken by one of the officers. Those notes were introduced and relied upon by the interviewing officers who testified at the hearing of this matter. I note that there had been no caution to Mr. Oberlander at the time of the interview that anything he said, and notes of that, might later be used as evidence in formal legal proceedings.

[76]    Mr. Oberlander says that he was excited or upset by the officers' reference to the possibility of his deportation from Canada, a reference made after the interview was well underway and confirmed again at the end of the interview, which he recalls took over two hours. Though the notes indicate the officers stated at the end of the interview that any decision about his situation would be made by the applicant Minister, and that they did not know what that decision would be, I note that the Notice of Revocation in this matter, on behalf of the Minister, was dated only two days later, following the interview.

[77]    The process smacks somewhat of unfairness. Particularly is this so where the testimony of investigating police officers concerns an interview when, without advance notice, the person interviewed is questioned about events and documents from some 45 or 50 years earlier, no warning is given that anything he says may be used in evidence against him, and his comments that he needs a lawyer are ignored until after the interview is over.

[78]    At the hearing of this matter serious objection was not raised to the evidence of the investigating officers, and I admitted their testimony. Certainly it is relevant, and the only issue is the weight to give any conflicting evidence introduced in this way.

[79]    I note that in the course of preparations for this hearing, since it is a civil rather than a criminal process, Mr. Oberlander, as ordered by the Court, was subject to discovery examination. Any evidence from that examination which is said to constitute admissions or to be contradictory to Mr. Oberlander's evidence at the hearing was read into the record and is before this Court, as in the usual civil case. While the Minister's case, in my opinion, must be established primarily on the testimony and documents adduced at this hearing and through discovery, the evidence of the investigating R.C.M.P. officers cannot be ignored.

[80]    There are two matters of interest in the evidence of the investigating officers. The testimony of Inspector Watson is, in part, as follows, based on notes he made by hand at the time of the interview.⁴⁵

Later the interview, as Inspector Watson testifies, continued as follows:

[81]    The latter reference attributed to Mr. Oberlander, to have been asked some questions about his military service when interviewed by Canadian immigration officials in Germany, is explained by him in the following terms, when cross-examined at the hearing of this matter.

[82]    The second matter of interest in Inspector Watson's testimony relates to a matter mentioned in the 1970 statement of Mr. Oberlander to the German consulate:

[83]    In cross-examination about this matter, counsel referred to the statement attributed to Mr. Oberlander that "older men in their 30s and 40s, career soldiers" participated in the operation, apparently seeking an acknowledgment by Mr. Oberlander that the situation described by the R.C.M.P. officer did occur. Mr. Oberlander commented:

I note that in his 1970 statement to German authorities Mr. Oberlander states that "the order ... according to which every member of the squad [Kommando] had to participate in an execution at least once, is unknown to me."

[84]    I turn from Mr. Oberlander's activities during World War II and in his subsequent years in Germany and in Canada, to consider Canada's postwar immigration policy and immigrant security screening practice when he came to Canada in 1954.

[85]    The Court was assisted by testimony and an affidavit⁴⁹ of Mr. Nicholas D'Ombrain concerning the evolution of Canadian immigration policy and security screening for immigration purposes. Mr. D'Ombrain was accepted as an expert in relation to the workings of Cabinet Government in Canada and federal arrangements for security.

[86]    At the end of the war in 1945 Canadian immigration policy was governed by regulation enacted in 1931⁵⁰ pursuant to the Immigration Act of 1927.⁵¹ Because of economic circumstances in Canada, immigration in the decade before the war was essentially limited to persons from the United Kingdom, Ireland, Dominions of the then British Empire, and from the United States. Apart from certain close family members of persons previously admitted to and resident in Canada, few immigrants were admitted into Canada. In the 1930's immigration numbers were an average of only 7,000 a year, a significant drop from the 165,000 admitted to Canada in 1929.

[87]    Commencing in 1945 Canadian interest in immigration was revived with renewed emphasis, first to meet manpower requirements particularly in agriculture and in resource industries, and for other trades and industries, and to assist in resettlement of some hundreds of thousands of persons who were displaced from their homelands as a result of the war in Europe. Government policy, with public support, led to re-establishment and ultimately expansion of an immigration service to deal with a significant increase in applicants for admission to Canada. The categories of persons eligible for admission as permanent residents were increased, first by providing opportunities for those who had come to Canada during the war essentially as refugees, then by extending the range for and removal of barriers to sponsoring relatives by persons already resident in Canada, and by adding classes of persons eligible as immigrants including those admitted to fill specific labour market needs. The first provision for admission of displaced persons in June 1947 was for 5,000 to be admitted, a number increased by stages to 40,000 by the fall of 1948, the numbers increasing through that short period as ships to carry the immigrants to Canada became available.

[88]    The government's policy was outlined by then Prime Minister Mackenzie King in a speech to the House of Commons on May 1, 1947.⁵² In that address he outlined the basis for policy to encourage immigration and he emphasized Canada's interest in assisting in resolution of the substantial international problem of settling displaced persons.

[89]    By 1950 the Minister of Mines and Resources, then responsible for immigration, was given broad discretion to permit landing in Canada of suitable persons.⁵³ In September 1950 a prohibition was abolished against admission to Canada of German nationals,⁵⁴ who until then were still formally classed as enemy aliens and inadmissible. That was soon followed by abolition of the similar prohibition against other former enemy nationals. This opened the door to Canada for the immigration of Germans, Italians and others from eastern Europe, formerly prohibited from entry as enemy aliens. These and other changes led to a significant increase in immigrants to Canada in the post-war years.

[90]    As interest grew in increasing the flow of immigrants and as staff, facilities and programs were arranged to provide for it, there was at the same time a concern for security, and for screening prospective immigrants to ensure, so far as it was possible, that those admitted for permanent residence would be likely to make a positive contribution to Canada's developing society, and would not threaten the internal or international security of the country.

[91]    In the post-war years screening of applicants for immigration to Canada for security purposes was a requirement for most of those in the new categories of eligible applicants. In 1947 the Cabinet determined that security screening of aliens applying for entry to Canada be required in cases as determined by immigration authorities, and by instructions of the Immigration Branch that screening was applied for all but British subjects, citizens of Ireland, France, South Africa, the United States and some Latin American countries.⁵⁵ In particular security screening was undertaken for those among displaced persons in Europe, and later for those of German and Italian nationality applying as independent immigrants when they became eligible in 1950.

[92]    Policy in relation to security screening evolved within the Security Panel, an interdepartmental committee of senior public servants, formed in 1946, chaired by the Secretary to the Cabinet, which reported directly to the Prime Minister. Policy as ultimately approved by Cabinet was then implemented by operating departments or agencies, and co-ordinated by the Security Panel. In the early post World War II years, with the Cold War evolving, there was concern to screen immigrants in order to seek to prevent admission to Canada of those who had supported Nazi causes and those who were communists. That concern related particularly to displaced persons from eastern European countries that after the war were within the Soviet bloc, for little or no reliable information was anticipated or was available from government or other sources in those countries about individuals who had originated there.

[93]    From 1946, the R.C.M.P., then responsible for security operations within Canada, was assigned the same responsibilities in relation to immigrants seeking landed status, i.e. permanent residence, in Canada. Initially this was done with regard to those who had arrived as refugees during the war who were permitted to apply for permanent residence from within Canada, and then for those sponsored by close family members in Canada. An R.C.M.P. mission was established in London to deal with security screening of many seeking to come to Canada from Europe. That mission later expanded to continental Europe. By 1948 there were 11 officers serving in Germany as security officers, known as Visa Control Officers ("V.C.O.s"). They were based at or attached to the headquarters for immigration in then West Germany, at Karlsruhe, with teams stationed at or travelling to several camps for displaced persons. Then or soon after there were also officers in Brussels, Salzburg, The Hague, Copenhagen, Stockholm, and Rome, all subject to direction and coordination from London. Many officers were regular officers of the R.C.M.P. Others, recruited by the R.C.M.P. for this purpose, had served with Scotland Yard in England or with military intelligence in Europe.

[94]    Initially the security screening was done on the basis of oral directions from R.C.M.P. headquarters at Ottawa, after Cabinet had decided in August 1946 that security screening of prospective immigrants would be dealt with by departmental administrative action without enacting legislation.⁵⁶ In time, criteria were set down, based upon policy and practice. Subsequently, changes in the original criteria were approved by the Security Panel and by Cabinet. The earliest statement of the criteria in evidence before the Court is a memorandum from R.C.M.P. records, dated at Ottawa, November 20, 1948 entitled "Screening of applicants for Admission to Canada".⁵⁷ This provided as follows:

[95]    The criteria outlined in the 1948 R.C.M.P. memorandum were the basis of decisions made by security officers considering prospective immigrants. Criteria (d) - (g) in the list were later of primary concern to immigration officers, after 1952. This statement of criteria was accepted as policy by the Security Panel. Modest modifications were made in 1950, to eliminate the complete ban on admission for former members of the Wehrmacht. Later, in 1952 further changes introduced some discretion in assessing former members of the Nazi party⁵⁸, and others, to exclude only major offenders among them, and discretion to admit certain former members of the Waffen-SS, and minor collaborators. Policy reflecting these modifications was approved by the Security Panel in May 1952 in the following terms:⁵⁹

That decision was communicated to the R.C.M.P.⁶⁰

[96]    Whether the Security Panel's modifications were appropriately applied by security officers at Karlsruhe or whether they were ignored by them and with what legal implications was a matter raised in the course of cross-examination of former security officers in this proceeding. The principal issue concerned paragraph (a) in the policy adopted in May 1952.

[97]    When word of these changes reached Mr. Kelly, then R.C.M.P. Liaison Officer in London, in August 1952 he wrote to Ottawa seeking clarification about how the modified clause (a) was intended to affect applicants who were former members of the designated organizations other than the Nazi Party. A series of letters followed, ultimately with a letter of January 21, 1953⁶¹ from Mr. Kelly to Ottawa setting out his understanding of that exchange and appending to that his list "Reasons for Rejection", which he proposed, subject to direction otherwise, for circulation to his officers in the field. That list includes only the security reasons for rejection that were of concern to the R.C.M.P. in London, to be used as guidance for the officers in the field. Mr. Kelly's evidence in cross-examination was that the differences earlier raised in his correspondence with Ottawa were resolved and that the statement of reasons he developed was circulated to officers in Europe.⁶² He acknowledged that this conclusion was based on his review of documents following an appearance by him some years ago before the Deschênes Commission⁶³ when he could not recall the outcome.

[98]    The list of reasons developed by Mr. Kelly is as follows:⁶⁴

[99]    Mr. Cliffe, a former security officer, testified that while he was in Germany in 1953-54 this statement of the Reasons for Rejection was applied by officers in the field. Both Messrs. Kelly and Cliffe testified that in the field, former members of the SS, the Sicherheitsdienst, the Abwehr and the Gestapo continued to be rejected automatically by security officers. Neither Mr. Cliffe nor Mr. Poole, another former security officer, were aware of the terms of the Security Panel's decision in May 1952 when they were serving as V.C.O.'s.

[100]    It is urged for Mr. Oberlander that the statement of rejection criteria distributed by Mr. Kelly to his officers in the field was not authorized and that the lawful rejection criteria in existence from May 1952 were those set out by the Security Panel.⁶⁵ The statement of the Security panel is set out in a memorandum dated June 19, 1953, to or from the Officer-in-charge at Karlsruhe with reference to "Former members of the Waffen S.S."⁶⁶. That sets out the Security Panel's statement, clauses (a) and (b), but omitting clause (c) which concerned collaborators, indicating that at least the clauses there repeated were known to the Officer-in-charge at Karlsruhe. Nevertheless, there is no evidence of a negative response from Ottawa to Kelly's restatement of the Reasons for Rejection which he requested be commented upon before his proposed distribution of his statement as guidance for his officers in Europe. Moreover, his objective was to set out a complete statement of the rejection criteria, including those approved in May 1952 by the Security Panel, and those earlier approved, in terms that could be readily applied in the field, without individual officers having to interpret Allied Control Council Directive No. 38 of 12 October 1946 referred to in the Security Panel statement⁶⁷. As he interpreted the Allied Directive, members of the SS, the Sicherheitsdienst, the Abwehr, the Gestapo were offenders or major offenders under that directive and thus were excluded automatically under the Panel's decision. Counsel for Mr. Oberlander urged that Mr. Kelly's interpretation of the Allied Directive was wrong or unreasonable, or unlawful. I am not persuaded this was so. The statement was intended as guidance for officers in the field. If it were not acceptable for that purpose it would be expected that Ottawa would have objected to it, as it had done with earlier correspondence from Mr. Kelly about the Security Panel's decision. There is no record of any objection. He requested Ottawa's views before sending the amended Reasons for Rejection to men in the field.

[101]    Both Mr. Cliffe and Mr. Poole, former security officers, indicated that the Reasons for Rejection as set out by Mr. Kelly were used by them in dealing with immigrant applicants in Germany, Mr. Cliffe in 1953-54, and Mr. Poole when he spent two weeks at Karlsruhe in 1954, and thereafter in Munich and later in Stockholm.

[102]    Three former visa officers of the Immigration Department testified in this proceeding. One, Mr. Donald Archie Dubé, served as a visa officer in processing immigration applicants at Karlsruhe and in Berlin in 1953 and 1954. Another, Mr. Roger St. Vincent, was attached to Karlsruhe from 1948 to 1952 but served on one of the "flying teams" composed of a security officer, a medical doctor and an immigration officer, that were fully engaged in processing refugees and displaced persons in camps throughout Germany. The third former visa officer, Mr. Joseph Aldard Walter Gunn, served in Brussels from 1954 to 1957. None of them had experience with security screening but each had served, as the immi