Canada (Minister of Citizenship and Immigration) v. Dueck, docket T-938-95

Date: 19981019

Docket: T-938-95

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

and

JOHANN DUECK

Respondent

REASONS FOR ORDER

[1]      These Reasons dispose of an objection raised by the respondent to the admissibility of a document sought to be introduced by the applicant through its witness, Professor Franz Golczewski. This document is an internal report of the NKVD, the predecessor of the Soviet KGB. It is dated October 1943 and its subject-matter is the extent of the atrocities committed by the German occupying forces in the Selidovka district of the Ukraine during the period relevant to this Reference.

[2]      This appears to be an important document for the applicant"s case yet, for reasons which defy explanation, the applicant did not produce an affidavit as contemplated by section 30(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the "Act"). Not surprisingly, the respondent objects to its introduction.

[3]      The relevant sections of the Act are:

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.

(2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.

(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.

The applicant has not complied with two requirements of subsection 30(3) of the Act with respect to the report it seeks to introduce. First, there is no document accompanying the record which states why it is not possible or reasonably practical to produce the original. Second, there is no document which sets out the source from which the copy was made and attests to the copy"s authenticity by the person who made the copy. Although the respondent raised no objection with respect to the first requirement, he did with respect to the second. Each of these conditions is a prerequisite to the admission of evidence under s. 30(3). As noted by Wood J. in R v. Andrew¹

... the requirements of s. 30(3) ought to be strictly adhered to if the evidence tendered is to be admitted under this statutory scheme which is, after all, in derogation of the common law which would otherwise require strict proof at great inconvenience to all concerned.2

The applicant having failed to comply with either of these independent statutory requirements must now bring herself with one of the common law exceptions to the hearsay rule none of which allow me to admit this document unless I can satisfy myself that the document is prima facie reliable.

[4]      The "Ancient Document" exception, as set out in Delgamuuk v. British Columbia³ does not apply to the NKVD document. This rule, making admissible private documents 30 years old or more and produced from proper custody, is only applicable where the document is free from suspicion. Suspicion arises in this case due to the admission by Professor Golczewski that the NKVD would have sought to use this document both in the prosecution of Germans and local collaborators and for war propaganda. Suspicion also arises from his admission that the NKVD was known to use improper investigation methods to extract information "in some cases."

[5]      The "Public Documents" exception, which arises when a public document is created by a public officer under a duty that impels him or her to accurately create the document,⁴ is equally inapplicable. Again by reference to Professor Golczewski"s testimony, the trustworthiness inherent in the public duty to make a record does not exist in this case.

[6]      Finally, contrary to the situation in R v. Zundel⁵where the "historical" exception was found to apply, we are not dealing here with an event that underwent general scrutiny or which is evidenced by historical treatises. Indeed, the NKVD document is the only one which purports to record the number of victims of Nazism in Selidovka, Ukraine, the region about which we are concerned. In addition, Professor Golczewski has recognized that from the perspective of a historian the document cannot be treated as more than a "secondary document."⁶

[7]      For these reasons, the NKVD document is ruled inadmissible.

Marc Noël

Judge

OTTAWA, Ontario

October 19, 1998

[8]     

__________________

¹ [1986] B.C.J. No. 2447 (S.C.) (Q.L.).

² See also R v. Cloutier, [1979] 2 S.C.R. 709">[1979] 2 S.C.R. 709, R v. Mudie (1974), 20 C.C.C. (2d) 262 (Ont. C.A.) and R v. Parker (1984), 7 O.A.C. 150 (C.A.).

³ (1989), 38 B.C.L.R. (2d) 165 (S.C.).

⁴ Firestone v. The Queen (1953), 107 C.C.C. 94 (S.C.C.).

⁵ (1987), 35 D.L.R. (4^th) 338 (Ont. C.A.) [hereinafter Zundel].

⁶ Affidavit of Professor Golczewski, paragraph 78.