Canada's Program on Crimes Against Humanity and War Crimes - 2011–2015: 13th Report

Appendix 1: Case Samples

Revocation of Citizenship

Oberlander, Helmut

Helmut Oberlander did not declare his involvement with Nazi forces in the Second World War, first as an interpreter and later as an infantry member, when he was granted permanent residency in 1954 and citizenship in 1960.

In February 2000, the Federal Court decided that Mr. Oberlander had obtained citizenship through deception by concealing his membership in Einsatzkommando 10a, a unit that systematically carried out mass executions of civilians, particularly Jews, in the occupied Soviet Union.

The Governor-in-Council revoked Mr. Oberlander’s Canadian citizenship in July 2001. In May 2004, the Federal Court of Appeal quashed the revocation because the report of the Minister of Citizenship and Immigration on which the Governor-in-Council had based its decision failed to address if Mr. Oberlander’s case fell within the Canadian government’s revocation policy for Second World War cases and also did not balance Mr. Oberlander’s personal interests against the public interest.

In May 2007, the Governor-in-Council revoked Mr. Oberlander’s citizenship for a second time. Mr. Oberlander applied for judicial review of this decision, which was dismissed by the Federal Court. At the Federal Court of Appeal, Mr. Oberlander raised for the first time the issue of duress as justification for his complicity in the atrocities committed by the Nazis. In November 2009, the Federal Court of Appeal remitted the matter to the Governor-in- Council for consideration of the issue of duress.

In September 2012, the Governor-in-Council revoked Mr. Oberlander’s citizenship for a third time. Mr. Oberlander filed an application for judicial review in November 2012, which was dismissed in January 2015.

Mr. Oberlander filed a Notice of Appeal with the Federal Court of Appeal on February 11, 2015. The Federal Court of Appeal heard the appeal on February 1, 2016. The Federal Court of Appeal allowed the appeal, with costs, on February 15, 2016. The Court remitted the issues of complicity and duress to the Governor-in-Council for redetermination in accordance with the law.

The Attorney General of Canada filed an application for leave to appeal to the Supreme Court of Canada on April 14, 2016, which was dismissed on July 7, 2016. In accordance with the Federal Court of Appeal’s decision, the Minister of Citizenship and Immigration may submit Mr. Oberlander’s case to the Governor-in-Council for redetermination of the issues of complicity and duress in accordance with the law.

Rogan, Branko

This was the first citizenship revocation case involving a war crimes-related matter in the modern context. In August 2007, a Notice of Intention to Revoke Citizenship was served on Mr. Rogan pursuant to section 18 of the Citizenship Act. In August 2011, the Federal Court decided that Mr. Rogan had provided misleading or false information when he sought admission to Canada in 1994 regarding his work as a reserve police officer and guard at detention facilities in the municipality of Bileca in Bosnia-Herzegovina and his personal and knowing participation in the commission of the crimes against humanity of persecution and “other inhumane acts.” Specifically, the Federal Court decided that Mr. Rogan participated directly and indirectly in the abuse of Muslim prisoners in detention facilities in Bileca.

The Immigration and Refugee Board’s Refugee Protection Division vacated Mr. Rogan’s refugee status on October 8, 2014, and the Canada Border Services Agency issued a deportation order against him on the same date. Mr. Rogan filed applications for leave and for judicial review of the vacation and deportation decisions on October 22, 2014, which the Federal Court dismissed on January 28 and February 3, 2015, respectively.

Halindintwali, Celestin

Celestin Halindintwali immigrated to Canada from Rwanda in July 1997 after being granted a visa as a Convention refugee; he obtained Canadian citizenship in June 2001. Mr. Halindintwali was alleged to have made numerous misrepresentations and to have knowingly concealed material facts concerning his affiliation with political organizations and militia groups as well as his active participation in human rights violations committed by the civilian and military authorities, the Interahamwe militia and the civilian self-defence organization during the 1994 genocide in Rwanda.

On June 6, 2013, the Minister served Mr. Halindintwali with a Notice of Intention to Revoke Citizenship. Mr. Halindintwali requested that the matter be referred to the Federal Court. The Statement of Claim was filed on November 27 and served on December 4, 2013. A Statement of Defense was not served or filed. Consequently, the Minister filed a motion for default judgment, which was heard on January 13, 2015.

On March 27, 2015, Madam Justice Bédard of the Federal Court granted the motion for default judgment and found that Mr. Halindintwali had obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances. The Court did not accept the evidence regarding the participation of Mr. Halindintwali in the genocide, concluding that the hearsay evidence did not meet the criteria of necessity and reliability. Based on the Federal Court decision, the Minister of Citizenship and Immigration may submit Mr. Halindintwali’s case to the Governor in-Council for a decision on citizenship revocation.

Rubuga, Maurice:

Maurice Rubuga (alias Gervais Ndahayo), a Rwandan citizen from the Hutu ethnic group, claimed refugee status on July 2, 1998. The Immigration and Refugee Board’s Refugee Protection Division granted this status on October 13, 1999. On December 13, 1999, he applied for permanent residence and became a permanent resident on May 31, 2001. He then applied for citizenship and became a Canadian citizen on September 13, 2004.

Mr. Rubuga was alleged to have obtained his refugee and permanent resident status as well as his Canadian citizenship by false representation or by knowingly concealing material circumstances. He was alleged to have falsified information in relation to his identity, his school and work history, his position within the Rwandan Armed Forces (FAR), his involvement in the training of the militia and his alleged mistreatment by the Rwandan authorities.

On March 28, 2014, the Minister of Citizenship and Immigration served Mr. Rubuga with a Notice of Intent to Revoke Citizenship. On April 7, 2014, Mr. Rubuga requested that the matter be referred to the Federal Court. The Statement of Claim was filed on August 26, 2014, and served on Mr. Rubuga’s counsel. Counsel advised on October 10, 2014, that a Statement of Defence would not be filed. Consequently, the Minister filed a motion for default judgment on February 16, 2015, which was heard on April 14, 2015. Mr. Rubuga’s case fell under the transitional provisions in the Citizenship Act, which state that any proceeding that is pending before the Federal Court immediately before the day it comes into force continues under subsection 10.1(1) of the Citizenship Act.

On September 14, 2015, Madam Justice Gleason of the Federal Court granted the motion for default judgment and found that Mr. Rubuga had acquired his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances, within the meaning of subsection 10.1(1) of the Citizenship Act, in relation to his identity, school curriculum, marital status and employment history and that he had hidden the fact that he was a second lieutenant with the Rwandan Armed Forces. This declaration had the effect of revoking Mr. Rubuga’s citizenship.

Mr. Rubuga reverted to foreign national status under the Immigration and Refugee Protection Act. The matter is currently with the Canada Border Services Agency for determination of next steps.

Criminal Investigation and Prosecution

Munyaneza, Désiré

On October 19, 2005, Mr. Munyaneza, a Rwandan national, was arrested in Toronto for alleged activities relating to the Rwandan genocide in 1994. Mr. Munyaneza was charged with two counts of genocide, two counts of crimes against humanity and three counts of war crimes, pursuant to the Crimes Against Humanity and War Crimes Act.

Following a rogatory commission held in Kigali, Rwanda, and a trial before the Superior Court of Quebec, Mr. Munyaneza was convicted on May 22, 2009, of all seven counts of war crimes, crimes against humanity and genocide. In October 2009, he was sentenced to life imprisonment without parole for 25 years. Mr. Munyaneza’s appeals of his conviction and sentence were dismissed by the Quebec Court of Appeal on May 7, 2014. On August 5, 2014, Mr. Munyaneza filed an application for leave to appeal to the Supreme Court of Canada, which was dismissed on December 18, 2014.

Mungwarere, Jacques

On November 6, 2009, following a Royal Canadian Mounted Police investigation, the Public Prosecution Service of Canada commenced criminal proceedings against Mr. Mungwarere before the Ontario Superior Court of Justice in Ottawa. He was charged with crimes against humanity or genocide in relation to the 1994 genocide in Rwanda. This was the second prosecution in Canada under the Crimes Against Humanity and War Crimes Act since the law was adopted in 2000. The trial began in late spring 2012 and ended on March 21, 2013. During the course of the 26-week trial, most of the witnesses testified via video link from Kigali, Rwanda. On July 5, 2013, Justice Charbonneau found Mr. Mungwarere not guilty.

On June 24, 2013, the Canada Border Services Agency served Mr. Mungwarere with a notice of intent to vacate his refugee status. On September 18, 2014, the Immigration and Refugee Board’s Refugee Protection Division vacated Mr. Mungwarere’s refugee status. Mr. Mungwarere filed an application for leave and for judicial review of the decision in Federal Court, which was dismissed on January 10, 2015. The matter is currently with the Canada Border Services Agency for determination of next steps.

Admissibility, Eligibility, Refugee Claim Determination and Resultant Inquiry and Removal from Canada under the Immigration and Refugee Protection Act

A citizen of both Serbia and Hungary was a member of the Yugoslav Army from 1998 to 1999 and was a soldier stationed in Pec, Kosovo. Well-documented reports confirm the Yugoslav Army engaged in a widespread and systematic operation of forced deportation and ethnic cleansing of Kosovar Albanians, including in the location of Pec, Kosovo.

In March 2012, the individual arrived at Pearson International Airport with his wife and child. He was examined at the port of entry by Canada Border Services Agency border services officers due to his suspected involvement in crimes against humanity. After being denied entry as a visitor, the individual made a claim for refugee protection and was detained for continued examination.

In March 2012, the individual was reported inadmissible to Canada, pursuant to paragraph 35(1)(a) of the Immigration and Refugee Protection Act, and was referred to the Immigration and Refugee Board’s Immigration Division for an admissibility hearing.

The individual denied witnessing or taking part in any atrocities committed by the Yugoslav Army. He also denied ever coming into contact with civilians.

In June 2012, the individual was found inadmissible to Canada, pursuant to paragraph 35(1)(a) of the Immigration and Refugee Protection Act, and was issued a deportation order. The Immigration Division noted the finding of inadmissibility rested “heavily on the issue of credibility in this case.” The Immigration Division also concluded that it was not willing to accept the statements he made at the hearing claiming ignorance of the human rights abuses.

As a result of the inadmissibility finding, he was found ineligible to pursue his refugee claim. In July 2012, he was removed from Canada to Hungary.