Accused Nazi too frail to deport, lawyers argue

Helmut Oberlander, the 95- year- old man who worked as a translator for a Nazi death squad in Ukraine and Russia, is so old, infirm and his mental faculties so diminished it is an “abuse of process” for the government to continue to try to deport him, his lawyers say.

Despite failing in what was seen as a last- ditch appeal to the Supreme Court of Canada in December, new legal filings continue Oberlander’s campaign to thwart the government’s 25- yearlong effort to deport him.

“He cannot read or hear the allegations of fact alleged against him. Given his age, his memory faculties are diminished greatly,” his lawyer said in a documents filed Friday. “Such a lengthy process, coupled with aging over the decades, has left Mr. Oberlander extremely vulnerable and unable to defend his own interests in this proceeding. It would be an abuse of process to continue in this case.”

Claiming he is unable to appreciate the nature of the immigration proceedings, his lawyers have asked the Immigration and Refugee Board ( IRB) to appoint a designated representative to look out for his interests.

Even so, his “participatory rights are greatly reduced. If these proceedings are permitted to continue, he requires that accommodations be undertaken to the hearing process to ensure his full and active participation.”

Oberlander’s lawyers, Ronald Poulton and Barbara Jackman, filed a new dossier with the IRB arguing why Oberlander, who retired after a career as a real estate developer in Kitchener, Ont., should not be deported.

Canada has been trying to deport Oberlander because of his Nazi past for decades. Four times his Canadian citizenship was stripped and three times that decision was overturned by the courts, in 2001, 2007, and 2012.

A Federal Court decision that he entered Canada fraudulently in 1954 by failing to disclose his activities with the Nazis during the Second World War was also contested but when the Supreme Court denied him leave to appeal in December, there seemed no further legal avenues. His lawyers, however, found something to fight. They argued before the IRB that despite the court ruling, Oberlander’s citizenship was never definitively expunged and the IRB does not have the jurisdiction to issue a removal order.

New documents filed in response to the government’s rebuttal of their motion display the parsing of legal meaning and language that lawyers revel in.

His lawyers say a judicial finding that he committed fraud to get immigration status does not make his status void, but rather makes it “voidable.” Extra steps would need to precede him being legally deportable.

They allege the federal government’s lawyers appear to completely misunderstand the place of the decision of Justice Andrew Mackay, the Federal Court of Canada judge who made the 2000 decision in the Oberlander case. Mackay said in his decision that Oberlander had not been lawfully admitted into Canada and so could not have legally acquired residency status.

However, Oberlander’s lawyers argue that, like other judges hearing other citizenship revocation cases that were cited by the government, Mackay had jurisdiction only to decide whether there was a factual basis to conclude his arrival in Canada was by fraud and not on the outcome of it.

“Any comment on the impact of that misrepresentation on the person’s status was beyond their jurisdiction,” his lawyers say in the filing. “The lone issue for consideration was whether or not he obtained citizenship by false representation or fraud or knowingly concealing material circumstances. Whether or not he had Canadian domicile was not before the Court, nor was the issue argued,” the filing says. The government can’t have it both ways, the lawyers say.

In a nod to the lengthy proceedings, and perhaps to public opinion from the Jewish community and other observers, his lawyers suggest Oberlander is not playing legal games.

“It cannot be said that Mr. Oberlander has abused the judicial process. He has been successful three times in the Court of Appeal in having decisions that were wrong in law quashed,” his filing says.