Underlying medical conditions combined with COVID-19 creates barriers to active participation in court

I think it is safe to say that COVID-19 has presented numerous challenges for individuals, ranging from our liberty and security rights, to health concerns, to mobility rights, and so on. More aptly in the case of Oberlander v Canada (Public Safety and Emergency Preparedness), Mr. Oberlander’s underlying medical conditions and communication difficulties have only been further exacerbated by the COVID-19 pandemic.[1] In 2017, the Governor in Council revoked Mr. Oberlander’s Canadian citizenship based on misrepresentations made to Canadian immigration officials about his wartime service with the Ek10a, a Nazi killing squad.[2] Under sections 35(1)(a) and 40(1)(d)(i) of the Immigration and Refugee Protection Act, his crimes against humanity and misrepresentation resulted in a request for the Immigrant Division (ID) to hold an admissibility hearing.[3] Mr. Oberlander challenges the ID’s decision denying his application to postpone the scheduling of his admissibility hearing.[4]

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The ID denied Mr. Oberlander’s request because his hearing difficulties due to his elderly age and underlying medical conditions were already present prior to the COVID-19 pandemic and there is no evidence to indicate his communication abilities will improve in the future.[5] Nonetheless, the courts found that COVID-19 has compromised Mr. Oberlander’s ability to communicate because his hearing difficulties requires the person speaking with him to be in very close proximity and he needs to see the other person’s lips in order to properly respond.[6] In non-COVID times, this would not pose a big problem. However, current public safety requirements of physical distancing and wearing a mask as a result of the pandemic impedes effective communication for Mr. Oberlander.[7] In turn, this directly impacts the ability of his counsel to prepare him for the hearing and the ability to meaningfully participate in the hearing itself, thus causing irreparable harm and interfering with his Charter right to a fair hearing.[8] Based on the above reasoning, the courts held that Mr. Oberlander raised a serious underlying health issue related to COVID-19 and his case presents exceptional circumstances allowing for an Order staying the commencement of his admissibility hearing.[9]

This blog post was written by a CCLA-PBSC Rights Watch Student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

 

[1] Oberlander v Canada (Public Safety and Emergency Preparedness), 2021 FC 124.

[2] Ibid at 8.

[3] Ibid at 9.

[4] Ibid.

[5] Ibid at 13.

[6] Ibid at 39.

[7] Ibid.

[8] Ibid.

[9] Ibid at 45.