Date: 20060301
Docket: T-2016-01
Citation: 2006 FC 270
Ottawa, Ontario, March 1, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
MICHAEL SEIFERT
Defendant
REASONS FOR ORDER ANDORDER
I. Overview
[1] This is a citizenship revocation proceeding under s. 18(1)(b) of the Citizenship Act, R.S.C. 1985, c. C-29. The defendant, Mr. Michael Seifert, is alleged to have obtained entry to Canada and Canadian citizenship by fraud or misrepresentation. In particular, the plaintiff is attempting to prove that Mr. Seifert failed to disclose his place of birth and activities during the Second World War, when he allegedly served in the German forces as a guard at a police transit camp in Bolzano, Italy.
II. Admissibility of Documentary Evidence
[2] The parties contest the admissibility of scores of documents. I heard submissions regarding many of these documents on September 12, 2005 but, in the interests of minimizing delay, I decided to reserve ruling on admissibility until a later point in this proceeding (my earlier decision is attached as Annex B). I have now received further submissions with respect to all of the documents tendered so far. In short, the plaintiff argues that the documents are admissible under various exceptions to the hearsay rule. The defendant submits that the documents contain inadmissible hearsay and cannot be received in evidence.
[3] The documents in issue fall into various categories. Some are governmental memoranda and reports from the 1940s and 1950s, some Canadian, some German. Others are records relating to Mr. Seifert's employment, citizenship and departure from Germany to Canada. In addition, the parties contest the admissibility of various published accounts of events at the Bolzano camp.
[4] I have reviewed all of the grounds of admissibility advanced by the plaintiff and all of the objections put forward by the defendant. I have assembled those arguments into the two-step approach described below. Before dealing with them, some preliminary observations are in order.
[5] The plaintiff advanced four independent grounds of admissibility. I do not need to consider two of them - the exceptions to the hearsay rule relating to public documents and ancient documents. With respect to the public documents exception, the plaintiff relied on the cases of [1953] 2 S.C.R. 107">R. v. Finestone, [1953] 2 S.C.R. 107 and R. v. P.(A.) (1996), 1 C.R. (5th) 327 (Ont. C.A.). However, I do not regard any of the documents submitted by the plaintiff as being similar to the kinds of documents at issue in those cases, or in any of the several cases cited in them. The documents covered by the doctrine recognized in those cases were records created by public servants under a duty to make an accurate account of certain activities or events. In [1953] 2 S.C.R. 107">Finestone, above, Justice Rand relied on cases dealing with public registers and ships' manifests and found that a bill of lading was admissible. In R. v. P.(A.), above, Justice Laskin held that certain court records - a charge document and a probation order - were admissible. He made clear that a "public document" is one that is "made for the purpose of the public making use of it, and being able to refer to it" (at p. 332, quoting from the House of Lords' decision in Sturla v. Freccia (1880), 2 App. Cas. 623).
[6] Here, many of the documents in issue were made by public servants who had a duty to record certain events accurately. However, they were not made with the intention that the public would make use of them or even have access to them. Indeed, many of them are marked "Confidential" or "Secret". I do not regard these as "public documents".
[7] Regarding the ancient documents exception to the hearsay rule, the plaintiff relied on Delgamuukw v. British Columbia, [1989] B.C.J. No. 1385 (B.C.S.C.) (QL). In that case, Chief Justice McEachern acknowledged that ancient documents (more than 30 years old) can be admitted as proof of their contents if they are free from suspicion. To determine whether the documents are free from suspicion, Chief Justice McEachern suggested that Wigmore's two "great rules of necessity and a circumstantial guarantee of trustworthiness are as good a test as any that might be suggested" (at p. 2). These criteria are identical to those that underlie the principled approach to hearsay exceptions recognized by the Supreme Court of Canada in the well-known trilogy of cases: R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915 and R. v. B.(K.G.), [1993] 1 S.C.R. 740. Delgamuukw, above, predates those cases and, in my view, the particulars of the ancient documents doctrine set out in it have been overtaken by the Supreme Court of Canada's overarching approach to admitting hearsay evidence. Certainly, the two important criteria cited by Chief Justice McEachern are co-extensive with the Supreme Court's ruling that hearsay can be admitted where the requirements of necessity and reliability have been met. Accordingly, my consideration of the principled approach to the hearsay rule obviates the need to consider the ancient documents doctrine as a separate and free-standing ground of admissibility.
[8] There are two considerations that I do not discuss below but which also form an important part of my analysis. First, I must determine whether a particular document is relevant to a fact in issue in this case. Accordingly, for each document, I have considered its relevance to an allegation in the plaintiff's statement of claim. Second, I must decide if the document tendered is actually being tendered by the plaintiff as proof of the truth of its contents. It is only then that I must consider whether there is an applicable hearsay exception. For the vast majority of the documents before me, this purpose is clear. Nevertheless, I have considered each document with this consideration in mind. In some cases, the plaintiff has acknowledged that a particular document was being offered for a limited evidentiary purpose.
[9] I must emphasize that, where I have ruled a document admissible as evidence of the truth of its contents, this does not necessarily mean that I take a particular fact as having been proved. At this stage, I am simply deciding whether a document constitutes admissible evidence. It is only at the end of the case, based on the whole of the evidence, that I will decide the facts.
[10] With that in mind, I have reserved one of the defendant's submissions for consideration at a later point. In respect of certain of the plaintiff's documents, the defendant has argued that their probative value, if any, is exceeded by their prejudicial effect. It is unnecessary for me to consider a document's probative value at this stage. This is a matter relating to the weight to be assigned to the evidence, not its admissibility. If, at the end of the case, I am satisfied that a particular document's probative value is exceeded by its prejudicial effect, I will disregard it.
III. Determining Admissibility
A. Business records
[11] The plaintiff's main argument is that the majority of the documents before me constitute business records and are admissible under s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (relevant enactments are set out in Annex A). The plaintiff submits that these documents were created in "the usual and ordinary course of business" (s. 30(1)). In addition, where original documents were unavailable, the plaintiff supplied affidavits that explained why the originals could not be produced (e.g. because they could not be removed from public archives), identified the documents' locations, attested to the documents' authenticity, and vouchsafed the accuracy of the copies, as permitted by s. 30(3) of the Act.
[12] The defendant has put forward numerous objections to the plaintiff's reliance on the business records exception. I have dismissed five of those arguments, but I carefully considered the remainder. First, the defendant submits that many documents fall outside the intended scope of s. 30 because they contain opinions and analysis - they are not merely recorded entries in a file or chart (as in [1970] S.C.R. 608">Ares v. Venner, [1970] S.C.R. 608). I am satisfied, however, that documents containing opinions may still qualify as business documents and be admissible under s. 30 for the truth of their contents (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd Ed. (Markham: Butterworths, 1999), p. 229, § 6.163). That does not mean, of course, that I am bound by whatever opinions may be expressed in those documents.
[13] Second, the defendant argues that documents generated within government departments or agencies cannot be "business documents". However, given the breadth of the definition of "business" in s. 30(12) of the Act, I am satisfied that documents produced in the usual and ordinary course of governmental activity or operations may qualify as business documents and be admissible under s. 30 for the truth of their contents. Section 30(12) specifically provides that the term "business" includes "any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, . . . or by any other body or authority performing a function of government".
[14] Third, the defendant argues that many of the plaintiff's supporting affidavits are defective and do not comply with s. 30(3). Specifically, the defendant submits that it is inappropriate for archivists to state that a particular document was prepared in the usual and ordinary course of business in an attempt to satisfy the requirements of s. 30. I agree that an archivist's opinion on the question whether a document was prepared "in the usual and ordinary course of business" cannot take the place of the court's determination of that issue for purposes of s. 30 of the Act (compare Canada (Minister of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J. No. 1428, (T.D.) (QL), and Canada (Minister of Citizenship and Immigration) v. Oberlander, [1999] 1 F.C. 88, [1998] F.C.J. No. 1380 (T.D.) (QL)). On the other hand, the fact that an archivist has expressed an opinion on that subject does not render his or her affidavit inadmissible or irrelevant in respect of other issues.
[15] Fourth, the defendant argues that no document can be admitted under s. 30 if the declarant is not living. Sub-paragraph 30(10)(a)(iv) provides that a record of a statement made by a person who is not a competent and compellable witness in the proceeding cannot be admitted as a business document. Further, it provides that a record of a statement made by a person who, if living and of sound mind, would not be a competent and compellable witness also cannot be admitted as a business document. I was asked to interpret this rule as prohibiting the admission of documents authored by persons who are now dead and, therefore, are not compellable as witnesses in these proceedings. I do not read the provision this way. In my view, it simply states that the business document exception in s. 30(1) cannot be used to introduce evidence from a person, whether living or dead, who could not be a witness in the proceeding (see R. v. Heilman, [1983] M.J. No. 390, (1983), 22 Man. R. (2d) 173 (Co.Ct.)).
[16] Fifth, the defendant submits that all documents relating to the policies and practices surrounding the screening of candidates for admission to Canada after World War II are inadmissible because, by definition, they relate to an investigation or inquiry, or to the preparation or provision of legal advice, or were generated in contemplation of legal proceedings and, therefore, fall under exceptions to the business records rule as set out in s. 30(10)(a)(i), and (ii). While I do not regard all documents relating to immigration screening, by definition, as coming within those exceptions, I have considered whether particular documents might be inadmissible for those reasons (see, e.g., R. v. Palma (2000), 149 C.C.C. (3d) 169 (Ont. S.C.J.)).
[17] As a general matter, I agree with the defendant's argument that many of the plaintiff's documents cannot be considered business records. In particular, policy documents, memoranda and personal correspondence do not strike me as the kind of documents admissible as business records under s. 30 of the Canada Evidence Act. Correspondingly, the various exceptions contained in s. 30(10) of the Act do not prevent the admission of documents that are not business records.
B. Necessity and Reliability
[18] In a trilogy of cases, the Supreme Court of Canada has made clear that courts should apply a flexible approach to hearsay evidence (Khan; Smith; B.(K.G.) above). The Court held that hearsay should be admitted when the criteria of necessity and reliability are met.
[19] Those cases all dealt with oral statements that were made out of court, not documents. However, the same approach can and should be applied to documentary evidence. Indeed, the trilogy of cases built upon the approach to documentary hearsay that had been established much earlier in [1970] S.C.R. 608">Ares v. [1970] S.C.R. 608">Venner, above.
(1) Necessity
[20] The Supreme Court stated that it may be necessary to admit hearsay evidence when other evidence is unavailable. It may be unavailable because a witness is incompetent (e.g. as in Khan, above) or is dead. Or it may be necessary to admit the evidence because there is no other convenient way of proving a fact that is in issue in the case (Smith, above).
[21] This case deals with events that took place decades ago. The plaintiff has called witnesses who have given direct evidence about their work and experiences in the period during the 1940s and 1950s. However, many facts can be proved only through documents. In my view, generally speaking, the criterion of necessity is clearly present in relation to most of the documents tendered in this case. The real issue is reliability.
(2) Reliability
[22] The inherent danger in admitting hearsay evidence is that its reliability cannot tested through the usual means - that is, by cross-examination - because the maker or author of the particular statement is not before the court. Accordingly, before admitting hearsay evidence, judges must look for some indication of its reliability in order to alleviate the concern about the lack of cross-examination. To put it another way, judges must consider whether there are reasons to question the accuracy of the declarant's perception, memory, objectivity or credibility.
[23] The defendant contests the reliability of many of the documents tendered by the plaintiff. In particular, the defendant argues that many of the archivists' affidavits are inadequate because they contain "boilerplate" or incomplete descriptions of the documents attached to them. I have reviewed and considered all of those affidavits in ruling on the admissibility of the corresponding documentary evidence. I have found them to be accurate and complete.
[24] Further, the defendant argues that, given that the value of the opinions of the expert historians who relied on many of the documents in issue here is proportionate to the extent to which the facts on which they rely have been proved, the experts' reliance on certain documents cannot at the same time be taken as an indication that the documents are reliable. I disagree. The fact that expert historians have found certain documents to be authentic and a good source of historical information can be a basis for concluding that those documents meet the threshold criterion of reliability and are admissible (Fast, above). However, that does not mean, of course, that I am bound to interpret the documents in the same way as the historical experts did, or to give them the same weight.
[25] In my view, many of the documents tendered by the plaintiff are inherently reliable. They were authored by persons who were responsible for the stewardship of the Canadian government at the very highest levels - at Cabinet and at the upper echelons of the bureaucracy. I have been given no reason to suspect that the authors were mistaken or motivated by a desire to mislead. To the contrary. It was important to record and communicate decisions and policies in an accurate and clear fashion. Similarly, many documents before me were authored by German officers or officials who had a similar interest in ensuring the transmission of accurate information. In addition, these documents have been available for review in public archives for many years and exposed to the scrutiny of scholars and the public. One would expect that any serious concerns about their authenticity or reliability would have come to light.
[26] My general approach is consistent with that of Chief Justice Lamer in Smith, above, at paragraph 45:
"In my opinion, hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability set out in Khan, and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result to the accused".
[27] Accordingly, I have noted in my comments in Annex C certain features of the documents that pertain to their reliability. But I have not explicitly set out the general observation that the documents, as a whole, appear to be reliable. Nor have I expressly noted the reliance that each expert has placed on a particular document, although I have identified the witnesses through whom each document was introduced.
IV. A Two-step Approach
[28] I have decided whether a document is admissible by answering the following questions:
1. (a) Is the document a business document, in the sense that it was prepared in the usual and ordinary course of business, including the business of government?
(b) If so, is it nevertheless inadmissible because:
(i) it was made in the course of an investigation or inquiry (s. 30(10))(a)(i));
(ii) it was made in the course of obtaining legal advice, or in contemplation of a legal proceeding (s. 30(10)(a)(ii));
(iii) it is privileged (s. 30(10)(a)(iii));
(iv) it relates to a statement made by a person who is not, or, if living, would not be, competent or compellable to disclose what is contained in the document (s. 30(10)(a)(iv))?
2. If the document is not admissible as a business document, is it admissible under the principled approach to hearsay evidence based on necessity and reliability? In particular:
(a) Is admission of the document evidence reasonably necessary, in the sense that there is no other convenient way of presenting the evidence contained in it?
(b) Is the evidence contained in the document reliable, in the sense that there is some indication that the document is trustworthy; that is, something that substitutes for the usual means of testing the reliability of testimony, namely, cross-examination?
V. Disposition
[29] I have set out in Annex C a list of all documents whose admissibility remains contested between the parties. I have included in that list brief reasons for my ruling on each document. Should it become necessary or appropriate at a later point, I may expand on those reasons.
ORDER
THIS COURT ORDERS that:
1. The documents identified in Annex C as being admissible are admitted in these proceedings;
2. The defendant shall inform the Court and the plaintiff of the identities of his proposed witnesses, their addresses, and the general subject matter of their testimony on or before March 3, 2006;
3. The defendant shall produce to the plaintiff copies of any documents that he proposes to introduce on or before March 3, 2006
4. The Court will sit in Vancouver from March 8-17 to hear defence witnesses.
"James W. O'Reilly"
Annex A
| Citizenship Act, R.S.C. 1985, c. C-29
Notice to person in respect of revocation
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
[...]
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
CanadaEvidence Act, R.S.C. 1985, c. C-5
Business records to be admitted in evidence
30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
[...]
Copy of records
(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy's authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is
(a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or
(b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.
[...]
Evidence inadmissible under this section
(10) Nothing in this section renders admissible in evidence in any legal proceeding
(a) such part of any record as is proved to be
(i) a record made in the course of an investigation or inquiry,
(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
(iii) a record in respect of the production of which any privilege exists and is claimed, or
(iv)a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;
[...]
Definitions
In this section,
(12) "business"
"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;
|
Loi sur la Citoyenneté, L.C.R. 1985, ch. C-29
Avis préalable à l'annulation
18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée :
[...]
b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels..
Loi sur la preuve au Canada, L.R.C. 1985, ch.C-5
Les pièces commerciales peuvent être admises en preuve
30. (1) Lorsqu'une preuve orale concernant une chose serait admissible dans une procédure judiciaire, une pièce établie dans le cours ordinaire des affaires et qui contient des renseignements sur cette chose est, en vertu du présent article, admissible en preuve dans la procédure judiciaire sur production de la pièce.
[...]
Copie des pièces
(3) Lorsqu'il n'est pas possible ou raisonnablement commode de produire une pièce décrite au paragraphe (1) ou (2), une copie de la pièce accompagnée d'un premier document indiquant les raisons pour lesquelles il n'est pas possible ou raisonnablement commode de produire la pièce et d'un deuxième document préparé par la personne qui a établi la copie indiquant d'où elle provient et attestant son authenticité, est admissible en preuve, en vertu du présent article, de la même manière que s'il s'agissait de l'original de cette pièce pourvu que les documents satisfassent aux conditions suivantes : que leur auteur les ait préparés soit sous forme d'affidavit reçu par une personne autorisée, soit sous forme de certificat ou de déclaration comportant une attestation selon laquelle ce certificat ou cette déclaration a été établi en conformité avec les lois d'un État étranger, que le certificat ou l'attestation prenne ou non la forme d'un affidavit reçu par un fonctionnaire de l'État étranger.
[...]
Preuve qui ne peut être admise aux termes de l'article
(10) Le présent article n'a pas pour effet de rendre admissibles en preuve dans une procédure judiciaire :
a) un fragment de pièce, lorsqu'il a été prouvé que le fragment est, selon le cas :
(i) une pièce établie au cours d'une investigation ou d'une enquête,
(ii) une pièce établie au cours d'une consultation en vue d'obtenir ou de donner des conseils juridiques ou établie en prévision d'une procédure judiciaire,
(iii) une pièce relativement à la production de laquelle il existe un privilège qui est invoqué,
(iv)une pièce reproduisant une déclaration ou faisant allusion à une déclaration faite par une personne qui n'est pas ou ne serait pas, si elle était vivante et saine d'esprit, habile et contraignable à divulguer dans la procédure judiciaire une chose divulguée dans la pièce;
[...]
Définitions
Les définitions qui suivent s'appliquent au présent article.
(12) « affaires »
« affaires » Tout commerce ou métier ou toute affaire, profession, industrie ou entreprise de quelque nature que ce soit exploités ou exercés au Canada ou à l'étranger, soit en vue d'un profit, soit à d'autres fins, y compris toute activité exercée ou opération effectuée, au Canada ou à l'étranger, par un gouvernement, par un ministère, une direction, un conseil, une commission ou un organisme d'un gouvernement, par un tribunal ou par un autre organisme ou une autre autorité exerçant une fonction gouvernementale.
|
Annex B
VANCOUVER, B.C.
SEPTEMBER 13, 2005
(PROCEEDINGS RESUMED AT 9:42 A.M.)
JUSTICE: I have a brief statement on the subject of admissibility of documents. I'm proposing a procedure I think will be both fair and reasonably efficient.
The plaintiff and the defendant could not be farther apart. The plaintiff submits that all of the documents introduced and marked for identification by way of its expert witness, Mr. d'Ombrain, are admissible as proof of their contents under various exceptions to the hearsay rule, as business documents, public documents, ancient documents or documents coming within the principled exception according to the Supreme court's decisions in Khan and Smith.
The defendant submits that none of these documents comes within any of those exceptions. More particularly, Mr. Seifert submits that the documents are inadmissible because:
1. Some are improperly marked as exhibits to affidavits;
2. Some are mis-described by affiants;
3. Some are authored by persons who are not disinterested in the subject matter;
4. Some contain political views and opinions rather than recorded facts;
5. Some were never intended to become public and have not been accessible to the public;
6. Some do not meet the test of necessity as set out by the Supreme Court in Smith;
7. Some bear no circumstantial guarantee of trustworthiness or reliability;
8. Some were authored by persons who might have good reason to be hostile towards the groups whose admission to Canada was under discussion;
9. Some were authored after this claim, broadly construed, arose;
10. Some relate to the central issue in this case and should not be admitted to prove that which is for the court to decide;
11. The business records exception was never intended to cover documents as broadly worded as these documents are;
12. The documents were channeled through the Department of Justice and there is no guarantee that other relevant potentially contradictory documents are not available or that the chain of custody of the documents is intact;
13. Some of the documents were prepared outside of the authors' duties, strictly speaking;
14. Some documents record private communications and cannot be considered, therefore, public documents.
In my view, in these circumstances, I must rule on the admissibility of each document, which I undertake to do at a later point. For present purposes I suggest we proceed as follows.
Documents introduced before the remaining witnesses will be marked for identification. I will review those documents individually in the same manner as I will review the documents introduced to date. In doing so I will assume that the plaintiff will rely on its submissions that the documents are admissible under the various hearsay exceptions. I would ask the plaintiff to advise the Court if it is relying on some other ground of admissibility or if the document is being entered for a more limited purpose.
For its part, I will assume that the foregoing objections will apply to the documents introduced through the remaining witnesses and therefore it will usually be unnecessary to make further arguments on those grounds, as I will have them in mind when I review the documents.
If there should be some other kind of objection, I would appreciate being so advised, and of course where the defendant has no objection, I would also be grateful for that to be brought to my attention.
I have two options based on this manner of proceeding, to issue a freestanding judgment on the documents alone or to incorporate my judgment into my final fact-finding decision. I will leave that question aside for now, to be addressed at a later point in these hearings.
Is that clear to counsel?
MR. CHRISTIE: Yes, My Lord.
MR. BRUCKER: Yes.
JUSTICE: Mr. Christie.
MR. CHRISTIE: Thank you.
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