Canada (Minister of Citizenship and Immigration) v. Seifert, 2004 FC 1711

Date: 20041207

Docket: T-2016-01

Citation: 2004 FC 1711

Vancouver, British Columbia, this 7^th day of December, 2004

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                         

BETWEEN:

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Plaintiff

                                                                           and

                                                            MICHAEL SEIFERT

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

[1]                The Minister of Citizenship and Immigration has requested an amendment to my Order of July 20, 2004 providing for the taking of commission evidence from witnesses in Italy and issuing a letter of request to judicial authorities in Italy. The Minister wishes to expand its list of witnesses and proceed under a different provision of the applicable treaty (i.e. the Convention between the United Kingdom and the Kingdom of Italy Regarding Legal Proceedings in Civil and Commercial Matters, CTS 1935, No. 14). The defendant does not oppose the first request, but objects strenuously to the second.

[2]                Originally, the Minister sought to proceed under Article 12 of the treaty and asked me to request the assistance of judicial authorities in Italy in compelling, if necessary, the attendance of certain witnesses to give evidence before the commission. However, the Minister now takes the position that the Article 12 procedure is cumbersome, complicated, expensive and likely to cause delays. The Minister wishes to proceed under Article 11 of the treaty, which will allow evidence to be taken more efficiently. Many of the witnesses in this case are elderly and infirm. Delays could stand in the way of obtaining their testimony.

[3]                The defendant characterizes this alternate means of proceeding as unfair and contrary to the Federal Court Rules, 1998, SOR/98-106. I have considered this point of view seriously, but I have concluded that many of the defendant's arguments are speculative. Further, I am satisfied that if any difficulties do arise from proceeding in the manner the Minister suggests, there are remedies available to the defendant.

[4]                The difference between Articles 11 and 12 is that the former does not provide a process for compelling witnesses to appear before the commission. Further, witnesses giving evidence before an Article 11 commission cannot be prosecuted for perjury.

[5]                The defendant makes three main arguments against the proposed amendment. First, he argues that the Minister has failed to justify the amendment. The Minister has filed two affidavits - one from a Crown lawyer and the other from a solicitor in Rome - in which the process under Article 12 of the treaty is described. In essence, in the context of the Italian judicial system, an Article 12 commission would sit in each of the districts in which prospective witnesses reside. There is no means by which these sittings could be coordinated, so several trips to Italy would likely be required.    By contrast, an Article 11 commission could sit in a central location convenient for the witnesses and hear them in a single session - in this case, over the course of a two-week period.

[6]                The defendant characterizes the Minister's evidence as weak and criticizes the absence of depositions from Italian officials. I agree that the Minister's affidavits are from indirect sources and scant in detail. But I am also mindful of the fact that the Minister is merely asking the Court to recognize the availability of an alternate procedure under a treaty of cooperation between Canada and Italy. I would not require the Minister, as a representative of the government of Canada, a state party to the treaty, to provide substantial proof of its grounds for invoking a particular section of that treaty. The real issue is whether the proposed procedure will prejudice the defendant and conform to Canadian law. This brings me to the defendant's other objections.

[7]                The defendant's second argument is that an Article 11 commission would cause him unfairness. In particular, he suggests that a commission that lacks the power to compel witnesses is defective. The absence of that power might result in a situation where only the most vindictive witnesses appear and those who are unwilling to be closely cross-examined could simply walk away. I agree that these problems cannot be ruled out entirely. The absence of compulsory powers is certainly less than ideal. I suspect that the Minister would concede that point. Still, I regard the defendant's objections as speculative. The Minister intends to call the same witnesses as were mentioned in the previous order. Indeed, the list has been expanded. I have no reason to believe that only a retributive subset of the Minister's witnesses will appear at an Article 11 commission. Nor do I have any reason to believe that the witnesses will fail to submit to cross-examination.

[8]                In any case, however, should problems arise, I believe the defendant has remedies. If necessary to protect the fairness of these proceedings, a particular witness could be compelled to appear or to give evidence. This scenario is contemplated by Article 13 of the treaty. Further, the testimony of a witness who was unwilling to be cross-examined would likely be given little or no weight. In addition, as I originally ruled in July, the defendant is free to request that commission evidence be taken of witnesses favourable to his position.

[9]                As part of his fairness argument, the defendant also points to the impossibility of prosecuting mendacious witnesses for perjury in Italy. He suggests that the potential for criminal prosecution is an important means of preventing witnesses from giving false testimony. The Minister argues that witnesses who perjure themselves before an Article 11 commission could be extradited to Canada on perjury charges, even though they could not be charged in Italy. I have reviewed the relevant provisions of the Criminal Code, R.S. c. C-34, the Canada Evidence Act, R.S. c. E-10, the Federal Court Act, R.S.C. 1985, c. F-7 and Rules, and the Treaty Between Canada and Italy Concerning Extradition, CTS 1985/17 and find no clear answer whether witnesses who commit perjury before an Article 11 commission could be extradited to face trial in Canada. This is not the forum for deciding that issue definitively. I simply acknowledge that extradition to and prosecution in Canada appears to be a possibility.

[10]            The Minister also argues that witnesses before the commission would be required to give their evidence under oath or solemn affirmation and that this is the primary means of getting a grip on their consciences and encouraging them to tell the truth. The fact that they might be immune from prosecution for perjury in Italy probably would not influence their testimony. Prosecutions are rare and usually depend on proof of an intention to mislead.

[11]            I agree with the Minister. Certainly, credibility will be a crucial issue in this case. The Court will have to determine the reliability of each witness's testimony and weigh the overall value of the evidence before it. Cross-examination will obviously be an important means of testing the truthfulness of each witness's evidence. Just as in any other case, inconsistencies and contradictions in a witness's version of events will cause that testimony to be discredited. Many of the witnesses in this case previously gave testimony in Italy on the same subject matter. That evidence is available to the defendant and can be used as the basis for cross-examination. Further, if there is a contradiction between a witness's statement before me and his or her prior evidence, I see no reason why that person could not be prosecuted for perjury in relation to those earlier proceedings. In any case, if a witness is shown to be untruthful or mistaken, his or her evidence will simply be rejected. This process protects the defendant's interests. I also agree with the defendant that a solemn setting with gowned counsel and judge is another important reminder to witnesses of the seriousness of these proceedings and of their duty to tell the truth.

[12]            This brings me to the defendant's third argument. He suggests that commission evidence can only be taken under the Federal Court Rules if the commission has the power to compel the attendance of witnesses and if the witnesses are liable to perjury charges in the foreign state. Rule 272(2) requires that commission witnesses be examined in a manner that is binding on those witnesses under the law of the jurisdiction in which the evidence is taken. In my view, this requirement is met by the obligation to demand that witnesses before the commission give their evidence on oath or solemn affirmation. Witnesses before an Article 11 commission are certainly bound to tell the truth. The Rule does not require that witnesses be compelled to attend the commission proceedings. Further, as mentioned, it is possible that witnesses who give false evidence before an Article 11 commission would be extraditable to Canada on perjury charges. Under these circumstances, I believe the requirements of Rule 272(2) are met.

[13]            Accordingly, I will grant the Minister's request to amend the original order for commission evidence. I wish to add, however, that I am fully prepared, when appropriate, to receive submissions from the defendant regarding any issue of fairness relating to the commission proceedings and, obviously, with respect to the reliability and weight of the evidence taken.

                                                                       ORDER

THIS COURT'S ORDER IS that:

1.          The Court's Order of July 20, 2004 is amended by replacing Schedules A and B of that Order with the attached amended Schedules A and B.

(Sgd.) "James W. O'Reilly"

Judge   

                                                                 SCHEDULE A

                                                           Amended Annex "A"

                                                          Information regarding

                                                    Michael Seifert's Witnesses

SCHEDULE B

                                                                                                             Court File No.: T-2016-01

                                                             FEDERAL COURT

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                              Plaintiff

AND:

                                                            MICHAEL SEIFERT

                                                                                                                                        Defendant

                                              AMENDED LETTER OF REQUEST

TO THE JUDICIAL AUTHORITIES OF ITALY

A PROCEEDING IS PENDING IN THIS COURT between The Minister of Citizenship and Immigration of Canada, plaintiff and MICHAEL SEIFERT (AKA Misha Seifert) defendant.

IT HAS BEEN SHOWN TO THIS COURT that it appears necessary for the purpose of justice that witnesses residing in your jurisdiction be examined there.

ON JULY 20 2004, THIS COURT ISSUED A COMMISSION to Justice James O'Reilly of the Federal Court of Canada.

ON AUGUST 13, 2004 THIS COURT ISSUED A LETTER OF REQUEST to the Judicial Authorities of Italy requesting assistance in the taking of commission evidence of witnesses named in the aforesaid Letter of Request

ON                  , 2004 THIS COURT VARIED ITS ORDER OF JULY 20, 2004 providing for the issuance of this amended Letter of Request and for the examination of the following witnesses:

                                                      POTENTIAL WITNESSES

WE HEREBY WISH TO INFORM the Italian Ministry of Justice that, in furtherance of Justice, this Commission intends to proceed, pursuant to Article 11 of the Convention between the United Kingdom and the Kingdom of Italy Regarding Legal Proceedings in Civil and Commercial Matters, to hear testimony of the above mentioned witnesses without the assistance of the Italian Authorities and in compliance with the Federal Court Rules (1998) and, more specifically, in compliance with Canadian Laws regarding the taking of evidence and procedure. The witnesses shall be heard by Justice James O'Reilly, the Commissioner duly appointed by the Federal court.

YOU ARE REQUESTED to permit the Commissioner to conduct the examination of the witnesses in accordance with the Federal Court Rules, 1998 and the commission issued by this Court, and in particular with the laws of evidence and procedure of Canada.

AND WHEN YOU REQUEST IT, the Federal Court of Canada is ready and willing to do the same for you in a similar case.

THIS LETTER OF REQUEST is signed and sealed by order of the Court made on

2004.

(____________________________)                                Issued by: __________________________

(Date)                                                                                (Registry Officer)

Address of Local office: 90 Elgin Street, Ottawa, Ontario, KIA 0H9 - CANADA          

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-2016-01

STYLE OF CAUSE:               MCI v. SEIFERT

PLACE OF HEARING:                     VANCOUVER

DATE OF HEARING:                       December 6, 2004

REASONS FOR ORDER

AND ORDER BY:                            THE HONOURABLE MR. JUSTICE O'REILLY

DATED:                                              December 07, 2004

APPEARANCES BY:

Barney Brucker                                     FORTHE PLAINTIFF

Douglas H. Christie                                FOR THE DEFENDANT

SOLICITORS OF RECORD:

MORRIS ROSENBERG

Deputy Attorney General of Canada

Toronto, Ontario                                               FOR THE PLAINTIFF

DOUGLAS H. CHRISTIE                                FOR THE DEFENDANT

Victoria, B.C.