Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2003 FCT 239

Date: 20030226

Docket: T-166-00

Neutral citation: 2003 FCT 239

BETWEEN:

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                          Plaintiff

                                                            WALTER OBODZINSKY

                                                                (Alias Wlodzimierz or

                                                                Volodya Obodzinsky)

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

LEMIEUX J.

A.                   THE MOTION AND ITS BACKGROUND

[1]         These reasons concern a motion filed by the defendant Walter Obodzinsky asking the Court to rule that the following are inadmissible in evidence: (1) certain documents filed by the Minister of Citizenship and Immigration ("the Minister") at the trial; (2) part of the testimony and documents presented during the commission to examine witnesses; and (3) an order that the evidence obtained during the commission not be included in the trial record until the questions of prescription and laches are decided at the trial.

[2]         The defendant was born on May 7, 1919, in the village of Turez, located in the district of Mir, which between 1921 and 1939 was part of Poland, before passing under the control of the Union of Soviet Socialist Republics ("the USSR") until the summer of 1941, and it then was subject to the yoke of the German invasion and occupation for three years, later returning to USSR control.

[3]         It was alleged by the Minister that during the summer of 1941 the defendant voluntarily joined as a police officer the auxiliary police unit formed in the Mir district by the German military occupation administration, and worked there until the summer of 1943, the period in which the auxiliary police supported the German forces in the perpetration of atrocities, especially against the Jewish population.

[4]         It was alleged by the Minister that in the summer of 1943 the defendant became an officer in a new formation _ the Jagdzug Baronowitche _ created by the German military forces to fight the partisans, a resistance force.

[5]         The Minister said that the defendant, accompanying the German forces in their retreat from the Eastern Front, was with the 30th Waffen SS in France in August 1944, where with others he deserted and went over to the Allies, later joining the Polish Second Corps, which at the time was under British command and stationed in Italy.

[6]         Pursuant to the Order in Council by the Privy Council of Canada, P.C. 3112 dated July 23, 1946, Canada agreed to accept 4,000 former members of the Polish Armed Forces, including those of two Polish Corps, to work in farming in Canada for two years and then be eligible for permanent residence and Canadian citizenship.

[7]         The defendant was selected and admitted to Canada temporarily on November 24, 1946. He obtained permanent residence in April 1950 and Canadian citizenship on September 21, 1955.

[8]         The process of revoking the defendant's Canadian citizenship was initiated when the Minister, on July 30, 1999, informed him of his intention to make a report to the Governor in Council in accordance with the provisions of s. 10 of the Citizenship Act ("the Act"). On August 24, 1999, the respondent asked the Minister, as he was entitled to do under that Act, to make a reference of the case to the Federal Court Trial Division so the Court could determine whether the defendant had acquired his citizenship by false representation, fraud or knowingly concealing material circumstances.

[9]         As a consequence of the defendant's request the Minister on February 1, 2000, by declaration, initiated proceedings to that end in the Federal Court Trial Division. These proceedings charged that the defendant had concealed his activities during the Second World War from the Canadian authorities. In short, he was charged with having deliberately concealed his past, and in particular his collaboration with the Nazi Forces.

[10]       After several proceedings in the Trial Division and the Federal Court of Appeal and an application for leave to appeal which was denied by the Supreme Court of Canada, a commission to examine witnesses was created by an order of the Associate Chief Justice in August 2002, and later took testimony in Byelorussia, in England and in Israel during the fall of 2002. Trial of the case began in Montréal on November 12, 2002, to hear the Minister's evidence, and it was in these circumstances that the defendant filed his motion to exclude certain evidence which the Minister sought to include in the record.

[11]       The background to the case is Order in Council P.C. 1946-3112, part of which is set out below:

AND WHEREAS the Minister of Mines and Resources proposes to permit entry into Canada under the authority of the Immigration Act of 4,000 single ex-members of the Polish Armed Forces who served with the Allied Forces engaged in hostilities against the Axis powers and who are presently located in the United Kingdom and Italy and are qualified for and willing to undertake agricultural employment in Canada;

NOW, THEREFORE, His Excellency the Governor General in Council, on the joint recommendation of the Minister of Labour and the Minister of Mines and Resources is pleased to order and doth hereby order as follows:-

1.             The Minister of Labour is hereby authorized

(a)_ by arrangement with the Departments concerned to send representatives of the Departments of Mines and Resources and Labour and the Royal Canadian Mounted Police to the United Kingdom and Italy to interview and examine persons of the above-mentioned description for the purpose of selecting 4,000 of such persons for agricultural employment in Canada and to pay the necessary transportation and living expenses of such representatives while so engaged; [My emphasis]

[12]       The chief of the Canadian selection team set up by P.C. 1946-3112 was H.R. Hare, an official with the National Employment Service, who on November 26, 1946, reported on the team's activities.

[13]       Sgt.-Maj. Ken Shakespeare of the Royal Canadian Mounted Police ("the RCMP") was a member of the selection team and, with Sgt. John Stevenson of the RCMP, questioned the Polish candidates. He filed his report on January 4, 1947.

[14]       Messrs. Hare and Shakespeare died some time ago.

B.                   OBJECTIONS RAISED BY DEFENDANT

(1)         Hare and Shakespeare reports

[15]       The defendant argued that the Hare and Shakespeare reports were inadmissible for three reasons:

(1)                 the requirements of s. 30 of the Canada Evidence Act ("the Evidence Act"), a legislative exception to the ordinary rule of law that hearsay evidence is inadmissible, are not met for two reasons: first, the reports were not prepared "in the ordinary course of business" of the departments or agencies concerned, since the reports resulted from a special plan approved by the Cabinet, and at that time it was not part of the RCMP's ordinary course of business to make a security selection of potential immigrants abroad, a task which fell outside their ordinary work; and secondly, the Shakespeare report was excluded by s. 30(10) of the Evidence Act, as that report was "made in the course of an investigation or inquiry";

(2)                 a large part of the Hare and Shakespeare reports was based on hearsay: they reported facts and discussions about which they could not have testified themselves;

(3)                 the reports by Messrs. Hare and Shakespeare were based largely on opinions concerning the questions at issue and most of the information in the reports came from several unknown sources; the defendant gave various examples of these:

(a)                  para. 26, "The Poles, who are masters of equivocation, quarrelled with our interpretation";

(b)                 para. 27, Shakespeare stated that the rejection percentage was higher than expected in view of the high requirements determined by the mission for physical condition, "suitability and qualifications as farm workers and finally security";

(c)                  Shakespeare stated that he did not get the impression that the best men applied as candidates and said he regretted the preliminary sorting done by the Poles.

(2)         Other documents concerning immigration

[16]       The defendant sought to exclude certain other immigration documents quoted in the reports of expert witnesses, either because they were not "records" within the meaning of s. 30 of the Evidence Act, or were solely letters stating opinions.

[17]       The documents concerned are to be found at tabs 51, 100, 103, 233, 235 and 236. For example, the defendant argued that the document at tab 51, a letter to the Under Secretary of State for External Affairs dated May 16, 1946, about possible security checks to be done on potential immigrants, is only a letter stating an opinion. The documents at tabs 100, 233 and 236 are reports of House of Commons debates.

(3)         Historical documents

[18]       The defendant sought to exclude the following historical documents:

(a)                  in his submission, the document at tab 10 titled "Event Report USSR No. 31" from the chief of the Security Police and the SD in Berlin, dated August 23, 1941, is only an analytical and opinion document regarding the situation in the eastern occupied territories (Ostland) and the USSR;

(b)                 the document at tab 40 is incomplete, and that at tab 105 comes from an unknown source, is not signed, and as such should not be filed, and moreover contains a number of opinions and comments about the situation of the auxiliary police;

(c)                  the document at tab 106 is a transcript of a speech given by a high-ranking SS officer, General Von Gottberg, to initiate anti-partisan operations in the eastern territories (Ostland); in the defendant's submission, this is not a record which can be filed under s. 30 of the Evidence Act, and moreover contains a number of opinions.

(4)         Documents obtained by the commission to examine witnesses

[19]       A third type of document for which exclusion was sought had to do with the testimony of Mr. Suchcitz, obtained by the commission. The defendant argued that certain comments and records were inadmissible on the ground that his expert witness report, served on the defendant, made no mention of them and did not deal in any way with these records.

[20]       More generally, as regards the testimony of individuals heard by the commission, the defendant raised several questions the answers to which, in his submission, were based on hearsay and so could not be included in the trial record.

(5)         Commission to examine witnesses _ delay in filing complete evidence

[21]       Finally, the defendant sought an order by this Court that all of the evidence received by the commission should not be entered in the trial record before the Court decided on the defences based on prescription and laches. He alleged irreparable harm, in particular to his reputation and privacy, if that evidence was filed now and the Court subsequently rejected the Minister's action, either because it was prescribed or on account of laches. As this testimony was obtained in circumstances in which he was unable, and is still unable for reasons of health, to take part in his defence, before the commission and at the trial, a state of health aggravated by the delay in bringing this action and the service of the notice of revocation, he contended that the filing of the said depositions was contrary to the rules of fairness.

C.         LEGISLATION

[22]       Sections 10 and 18 of the Citizenship Act read:

[23]       Section 30 of the Evidence Act provides:

D.         ANALYSIS AND CONCLUSIONS

(1)         Principles

[24]       In The Law of Evidence in Canada, 2d ed., Toronto, Butterworths, 1999, Sopinka, Lederman and Bryant define the hearsay rule as follows at para. 6.2:

§ 6.2 Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

[25]       The writers of The Law of Evidence in Canada, supra, set out the following rules in their analysis of s. 30 of the Evidence Act, an analysis which contrasts this with the provisions of provincial evidence legislation:

(1)                 in several important respects, the Evidence Act is different from the provincial legislation;

(2)                 the only prerequisite for admissibility is that the document must have been prepared in the ordinary course of business: several provincial statutes require a second test, that the writer of the document was required to prepare it in the ordinary course of business: as Cromwell J. explained in R. v. Wilcox, [2001] NSCA 45, at para. 54, "Unlike several of the provincial evidence act provisions, there is no requirement [in section 30 of the Canada Evidence Act] that it be in the usual and ordinary course of business to make such a record";

(3)                 the Evidence Act has no requirement of contemporary preparation: s. 30(6) provides that the Court may "examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record"; in Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (1977), 15 O.R. (2d) 750, Griffiths J. wrote:

A substantial factor in the reliability of any system of records is the promptness with which transactions are recorded. Unless it appears from the context of the record, or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in the transcribing, then in each case, it would seem to me, the Court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory;

(4)                 several provincial evidence statutes expressly authorize information in a document or record to be admissible even if the writer had no personal knowledge of the facts, a provision that is not contained in s. 30 of the Federal Evidence Act; despite this, the courts have interpreted s. 30 of the Evidence Act to approve the admissibility of a document based on double hearsay; my brother MacKay J., in Canada (Minister of Citizenship and Immigration) v. Oberlander, [1998] F.A.J. 1380, followed this precedent in para. 14, citing Callaghan J. in R. v. Grimba (1977), 38 C.C.C. (2d) 469, as follows:

It would appear that the rationale behind that section [i.e. s. 30] for admitting a form of hearsay evidence is the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual businesses, and which are subject to frequent testing and cross-checking. Records thus systematically stored, produced and regularly relied upon should, it would appear under s. 30, not be barred from this Court's consideration simply because they contain hearsay or double hearsay . . . [My emphasis.]

[26]       Jackson J.A., speaking for the Saskatchewan Court of Appeal, wrote in R. v. Martin (1997), 8 C.R. 5th 246:

¶ ¶ 50 Section 30 would have accomplished little if the author of the data contained in a business record had to be called to testify. The complexity of modern business demands that most records will be composed of information gleaned by the maker from others.

[27]       The interpretation given to the Ontario evidence statute in Adderly v. Bremner, [1968] 1 O.R. 621, would exclude records which contain subjective opinions. That statute would only admit objective facts. According to the writers of The Law of Evidence in Canada, supra, the federal statute does not exclude opinions contained in a document:

§ 6.163 It is curious that the exclusion of statements of opinion is recognized in view of the fact that the Canada Evidence Act allows for the admissibility of records "in respect of a matter". It could be argued that the use of the general word "matter" contemplates records containing opinions and other subjective data.

(2)         Application of principles

(a)         To Hare and Shakespeare reports

[28]       The defendant argued that the Hare and Shakespeare reports were made outside the ordinary course of business and so were inadmissible under s. 30(1) of the Evidence Act. He said that these reports were the result of a special program created by the Order in Council 1946-3112. This was not normal work for Messrs. Hare and Shakespeare.

[29]       These arguments must be dismissed. The plaintiff entered in evidence the affidavit by William Kelly, former Assistant RCMP Commissioner responsible for security. He stated that the Shakespeare report was prepared in the ordinary course of business. The same is true for the Hare report, as to which Kerry Adam Badgely, a doctor of history, stated that it was filed in the ordinary course of business.

[30]       I note that the word "business" is defined in s. 30(12) of the Evidence Act and includes "any activity or operation carried on or performed in Canada or elsewhere by any government . . . or agency of any government . . . or by any other body or authority performing a function of government".

[31]       I would add that it is prima facie clear that it is completely normal and usual for public servants to make reports on their activities.

[32]       The Ontario Court of Appeal judgment in R. v. Zundel (1987), 18 O.A.C. 161, at 208-209, cited by the defendant, does not apply. In that case, there was no evidence that the document had been prepared in the ordinary course of business. Here it is the opposite.

[33]       The defendant alleged that at that time the RCMP had no legal power to make a security selection under the Order in Council. This argument is without merit. It was the Order in Council itself which gave instructions "to send representatives of the Departments of Mines and Resources and Labour and the Royal Canadian Mounted Police to . . . Italy to interview and examine persons of the above-mentioned description for the purpose of selecting 4,000 of such persons...".

[34]       The defendant relied on the exclusion contained in s. 30(10) of the Evidence Act, which provides "Nothing in this section renders admissible in evidence in any legal proceeding . . . a record made in the course of an investigation or inquiry".

[35]       In my opinion, this objection is based on a misunderstanding of the nature of the Shakespeare report. It was a general report on all the RCMP's activities in Italy as part of the Canadian selection mission, which was not an investigation or inquiry as such.

[36]       If the Shakespeare report had discussed one or more interviews with candidates or disclosed the content of such an interview, the situation might have been different; but that was not the case.

[37]       With the Shakespeare report we are far from the situation before the Ontario Court of Appeal in R. v. Laverty (No. 2) (1979), 47 C.C.C. (2d) 60, where the Court excluded notes taken by a fire department inspector in the course of his investigation of a fire at the residence of the accused.

[38]       I reject two other points raised by the defendant against the admissibility of the two reports, on the ground that:

(1)                 they were based on hearsay: the reports were signed by an individual who had no personal knowledge of the facts; these documents reported facts and discussions about which Messrs. Hare and Shakespeare could not have testified themselves; and

(2)                 a large part of the Shakespeare and Hare reports expressed opinions on the questions at issue.

[39]       I have already concluded that the s. 30 case law does not exclude a document based on hearsay, but in my view there is much more. Mr. Hare was the head of the mission and Mr. Shakespeare was the senior RCMP officer within the mission. Their reports confirmed that they were at the nerve centre of the decisions taken and had personal knowledge of the facts and events described _ they lived through them _ it is not a report based on hearsay.

[40]       On the second point, the allegation that the reports were based on opinions, counsel for the plaintiff referred the Court to precedent (see R. v. West, [2001] O.J. No. 3413, and commentary, The Law of Evidence, supra, pp. 605-615) in support of his argument that the rules of evidence about opinions formulated by ordinary witnesses are [TRANSLATION] "far from being as strict as the defendant contends". It will not be necessary for the Court to consider this point in detail. In my view, the opinions identified by the defendant have no relevance to the case at bar and I attach no weight to them.

[41]       Finally, the defendant challenged the reliability of the Shakespeare report. The mission returned to Canada in early November 1946 and its report is dated January 4, 1947. In my opinion, the report is reliable because I do not see, in view of its nature, how the report could lose its value by the lapse of two or three months.

[42]       I conclude that the Hare and Shakespeare reports are admissible under s. 30 of the Evidence Act.

[43]       Further, counsel for the plaintiff argued that the two reports were admissible under the exception to the hearsay rule based on the principles of necessity and reliability, consistent with the decisions by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915. I will not discuss this alternative basis for admissibility of the Hare and Shakespeare reports. I will simply say that I am persuaded that these documents are admissible under the necessity and reliability rules as formulated by the Supreme Court of Canada. Necessity lies in the fact that the writers of the two reports are dead. The idea of reliability was discussed by Nadon J., as he then was, in Lecoupe v. Canada (1994), 81 F.T.R. 91. At para. 24, he listed certain factors for weighing the question of reliability. I concur in the plaintiff's written argument that in the case at bar the Hare and Shakespeare reports contain several fundamental indications of reliability:

(1)                 the writers were disinterested;

(2)                 no proceeding was contemplated at the time the writers prepared their report;

(3)                 the reports did not deal with the defendant in particular, but covered nearly 4,000 former members of the Polish Second Corps who met the Canadian mission in Italy or England;

(4)                 the writers had means of knowledge that were not available to ordinary people;

(5)                 the reports were prepared in the course of their employment and were forwarded to their superiors; and

(6)                 the reports are consistent with the other documents entered in evidence.

(b)         To other immigration documents

[44]       The document at tab 51 is a letter from the RCMP Deputy Commissioner to Laurent Beaudry, Assistant Under Secretary of State, dated May 16, 1946. The plaintiff argued that this was a letter of opinion. I do not agree. In that letter Deputy Commissioner Gagnon of the RCMP noted certain facts, recommended the establishment of a security system for immigrants to Canada and explained why. This document is admissible either under s. 30 of the Evidence Act or on the grounds of necessity and reliability.

[45]       The documents at tabs 100, 233 and 236 are extracts from the House of Commons debates in 1946. As the plaintiff mentioned, speeches in the House of Commons show the attitude of the government, its program on immigration and its justification. These documents are admissible. See the judgment of Denis J. in J.T.I. MacDonald Corporation v. La Procureur générale du Canada et la société canadienne du cancer, No. 500-05-031299-975 (Q.S.C.), relying on the Supreme Court of Canada in Willick v. Willick, [1994] 3 S.C.R. 670: [TRANSLATION] "it is accepted that extrinsic evidence is not reserved solely for a reference or for constitutional cases".

[46]       Tab 103 contains a note to file by Mr. LePan, dated July 31, 1946. The defendant would like to exclude it on the ground that Mr. LePan was giving his opinion. In my view, the document in tab 103 is only a summary prepared by Mr. LePan of his conversation with Mr. Hudd. That document is covered by s. 30 of the Evidence Act.

[47]       Tab 235 is a newspaper article dated May 3, 1947, titled "141 Nazi Poles on Farms Here". I admit the document since it was not presented as evidence of its contents, but to show that this information was circulated and to place in context the government's reaction in the House of Commons, filed as tab 236.

(3)         To historical documents

[48]       The defendant objected to the admissibility of the document in tab 10 titled "Event Report USSR No. 31" dated in Berlin on August 23, 1941, from the head of the security police and the SD. The defendant maintained that this was a document giving analysis and opinion. I allow this document under s. 30 of the Evidence Act. In Oberlander, supra, MacKay J. had undertaken the analysis of certain war documents entered in evidence by the Minister and admitted in accordance with the provisions of s. 30 of the Evidence Act. At para. 11 he wrote:

[11] I would describe the war documents in question as Directives or Orders of the Armed Forces Wehrmacht High Command, or of the Chief of the Security Police and the SD (a security branch for the SS), or of the Army Command or of a local military headquarters; and reports compiled from field unit reports, so-called "event reports USSR", or later reports on activities from occupied eastern territories, compiled regularly on the basis of reports of individual units, and, in accord with central office directives, forwarded up the chain of command to central offices of police and military services.

[49]       In my opinion, the document the defendant seeks to exclude is a war document and is admissible in accordance with the precedent established by MacKay J. in Oberlander, supra.

[50]       The defendant said that the report in tab 40, titled "Overall Report from 16th October 1946 to 31st January 1942" originating in the Einstazgruppe A, is incomplete because it only reproduces some pages connected with chapter III on the Jews, but there is nothing on Byelorussia. The plaintiff responded that the report is not incomplete. The German copy is complete, but in view of the costs associated with translation of the 184-page document, only the part relating to the case was translated.

[51]       At the hearing, counsel for the plaintiff drew my attention to pp. 61, 62 and 63 of the chapter on the Jews, where the activities of the Einstazgruppe A in Byelorussia were mentioned. This explanation is satisfactory. I admit the document.

[52]       The document in tab 105 is a report prepared by the auxiliary police in Byelorussia and reads [TRANSLATION] "Minsk, April 10, 1943". The defendant argued that this document should be excluded because it is from an unknown source. I have before me the affidavit of the director "of the Great Patriotic War Period (World War II) Documents Department at the National Archives of the Republic of Belarus in the City of Minsk, Republic of Belarus". At para. 11, she states:

I have made a study of matters relating to the history of the documents that are in my charge. On this basis, I can state and do verily believe that the document referred to in this Affidavit was seized by Soviet troops in July 1944 during the liberation of Belorussia from German occupation. The document was transferred to the control of the Central State Archives by the Soviet Army in July of 1944 shortly after its seizure. The document has been in the continuous custody of these Archives, now named the National Archives of the Republic of Belarus, since its acquisition.

[53]       Further, the director stated that this document was prepared in German "and is . . . memorandum on the structural organization and status of police forces recruited from the local population in Belorussia". I am satisfied with its provenance. This document is admitted under s. 30 of the Evidence Act. It is a war document.

(3)         Evidence obtained by Commission

(a)         Specific objections

[54]       The defendant made two specific objections. First, the defendant objected to certain parts of the testimony being included on account of their being hearsay. I will review this second objection before dealing with the first. Secondly, the expert witness Suchcitz, in the commission, testified about matters which were not identified in his report and referred to new documents which were not mentioned in his report.

(i)          Certain parts of depositions challenged for hearsay

[55]       The defendant objected to a passage from the testimony of Boris Ivanovitch Gruschevsky. His testimony dealt with the establishment of the auxiliary police after the arrival of the Germans and with whether individuals joined the police voluntarily. The Court asked hin a question. He replied [TRANSLATION] "I recognized them because they had a head-band, a badge, and people were talking. That is how I learned they were people who joined voluntarily". I do not exclude the passage. It is simply the question of weighing the evidence.

[56]       Several parts of the testimony of Valentina Alexeyevna Keda were challenged.

[57]       I see no justification for excluding any passage in Ms. Keda's deposition. My reading of the passages indicates that the facts she related were based primarily on what she saw. Where the answers appeared to indicate the contrary, I will weigh this evidence.

[58]       The defendant objected to three passages in the testimony of Nicolai Antonovich Grigorovich. I propose to delete from Mr. Grigorovich's testimony only one passage, that on p. 133, lines 12-26. The fact he related was based purely on hearsay.

[59]       Part of the testimony of Joseph Harkavi, at p. 26, lines 7-25, must be deleted. He could not relate events about which he testified, as he had left his village on the day in question.

[60]       The defendant challenged two passages in the testimony of Zeev Schreiber. The first passage is not excluded. He saw police officers escorting people, including his father, his mother, his brothers and his sisters. He heard gunshots. His testimony is not hearsay, but personal observation. The rest of the passage is a question of weight. On the second passage, this is not excluded. Mr. Schreiber lived in Mir and could readily estimate the Jewish population with whom he lived in a ghetto for several months.

(ii)         The testimony of Mr. Suchcitz and documents not mentioned in his report

[61]       Mr. Suchcitz was recognized as an expert witness "in the history of the Polish Armed

Forces during the Second World War, including the creation of documents relating to military personnel in the Polish Armed Forces".

[62]       He filed an expert report in accordance with the provisions of Rule 279 of the Federal Court Rules, 1998 ("the Rules"), which reads as follows:

[63]       In particular, at paras. 20 and 21 of his report, the expert witness Suchcitz wrote how the Polish Second Corps recruited its members, and in particular the process leading to the inclusion or exclusion of volunteers or former prisoners of war in the ranks of the unit.

[64]       At para. 20 of his report he described the establishment of recruiting centres for the Polish Second Corps:

POW i.e. Poles who had been forced to serve in the German Army went before either an American or British commission as well as a Polish commission. Those who wished to do so could volunteer to serve in the Polish Armed Forces and following clearance were inducted into them. Those who did not wish to serve in the Polish Forces or had not been cleared were sent back to the POW camps. Of 54,000 of German Army POW that passed through the Polish selection and interrogation pool, 1,151 Poles were not admitted into the Polish Forces.

[65]       At para. 21 of his report, the expert witness Suchcitz indicated that several soldiers in the Army of Resistance, who had fought the Germans during the occupation of Poland, escaped to the West after the advance of the Soviet Army in 1944 and 1945.

[66]       At para. 9 of his report Mr. Suchcitz said the following:

Records to which reference is made in this Affidavit are described in the Business Record Affidavit of John James Harding dated May 29, 2000. The records are contained in the personal service record file of "Obodzinsky Wlodzimierz" and are in the custody of ... .

[67]       The defendant sought to exclude from the trial record any mention by Mr. Suchcitz of documents other than those specifically mentioned in his report, and in this regard maintained that the said documents produced from the files of Mr. Suchcitz and identified as exhibit "Commission No. 3" should themselves be excluded because they were not mentioned in his report.

[68]       I note that the documents which the defendant is asking the Court to reject were all disclosed to him in June 2002 in portfolio list 2 (Polish Army documents).

[69]       The defendant noted that the reference to the disputed documents came from Mr. Suchcitz's files and only explained his report, in particular its paras. 20 and 21.

[70]       In any case, assuming that the reference by Mr. Suchcitz to the disputed documents should have been made in his report, the plaintiff relied on Rule 280(1)(c), which provides that the Court may authorize any other testimony by an expert witness. The plaintiff argued that the reference by Mr. Suchcitz to the disputed documents had only one purpose, that of helping the Court to better understand his testimony. He contended that the defendant had not suffered any detriment, as this evidence did not deal with Mr. Obodzinsky as an individual.

[71]       I have examined all the documents contained in exhibit "Commission 3", and have considered the parts of the testimony which the defendant asks to have struck out, because they deal with exhibits that were not mentioned in his expert witness report.

[72]       I accept the plaintiff's argument that fundamentally the documents filed by Mr. Suchcitz under "Commission 3" and his testimony about them were presented solely in order to explain paras. 20 and 21 of his report, by reference to these documents. His oral deposition is authorized under Rule 280(1)(c) of the Federal Court Rules, 1998, which reads as follows:

[73]       Further, I concur in the plaintiff's remarks that Mr. Suchcitz's testimony on this point helped the Court to better understand the case. It is the Court which put a number of question to Mr. Suchcitz about these documents and his related testimony. Furthermore, I find there was no harm to the defendant.

[74]       Consequently, no portion of the testimony by the expert witness Suchcitz will be struck out and the "Commission 3" exhibits will be admitted.

(d)         Decision on prescription and laches necessary before filing commission evidence

[75]       Paragraph 15 of the defence reads:

[TRANSLATION]

The defendant maintains that the plaintiff's action is prescribed under the Crown Liability and Proceedings Act, or under the Federal Court Act, and alternatively relies on the doctrine of laches.

[76]       The defendant is seeking an order that evidence before the commission should not be entered in the trial record until the defences of prescription and laches are decided on at trial. The defendant reasoned that if he is successful on either of his defences, the Minister's action will be dismissed. The testimony before the commission will have no practical effect except to cause the defendant irreparable harm because of the light thrown on his past by that testimony.

[77]       The plaintiff objected, arguing that the Federal Court of Appeal recently decided the question of prescription in the case at bar in Minister of Citizenship and Immigration v. Walter Obodzinsky, [2002] F.C.A. 518, and by implication Nadon J. decided the question of laches in Canada (Minister of Citizenship and Immigration) v. Obodzinsky, [2000] F.C.J. No. 1675.

[78]       It was Létourneau J.A. who rendered the reasons for judgment in December 2002 in the

plaintiff's appeal from the judgment of the motions judge, allowing the defendant's application for a summary judgment, but not on the ground that the action was prescribed, an argument which she dismissed.

[79]       At para. 45 of his reasons Létourneau J.A. wrote this:

[45] I note that the purpose of the cross-appeal is to reverse the motions judge's decision in which she concluded that the appellant's action was not subject to prescription. Without discussing the validity of that decision on the merits, I feel that it was not possible to submit the question of prescription to the motions judge for a summary judgment, especially in view of the facts in the record. In fact, for the following reasons, I do not feel that an objection based on prescription could even be made to the judge hearing the reference. [My emphasis.]

[80]       According to Létourneau J.A., "The objection based on prescription made by the respondent resulted both from a misconception and a misunderstanding of the reference procedure in which he was engaged". He analysed the provisions of s. 38 of the Act and reached this conclusion, at para. 49:

[49] Additionally, assuming the respondent could rely on prescription, I do not see how this could run in his favour so long as he has not made an application for reference to the Court . . . [My emphasis.]

[81]       At para. 50, he considered that it was improper "to venture into the area of prescription when the facts were not all known".

[82]       My reading of Létourneau J.A.'s reasons persuaded me that the door is slightly open to the defendant's defence that the action is prescribed, but the signals given by the Federal Court of Appeal are very strong.

[83]       The same is true for the question of laches. Nadon J., as he then was, held that there is no reason to suspend the proceedings brought by the Minister against the defendant, including the argument that there was an abuse of process on account of the delay in bringing this action.

[84]       The doctrine of laches may be applied where no prescription period is laid down, but a necessary condition is the existence of an unreasonable delay in bringing the action; the other condition is the loss suffered.

[85]       At paras. 32, 33, 34, 35 and 36 of his reasons Nadon J. considered this question of the delay and concluded that it did not justify a stay of proceedings.

[86]       In my opinion, Nadon J. did not strictly speaking rule on the defence of laches relied on, but his analysis was highly relevant and not favourable to the defendant.

[87]       I deny the order sought by the defendant for two reasons. First, assuming that I have the discretion to make such an order, I must weigh several interests, which by an imperfect analogy may be likened to those identified by the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance), [2002] A.C.S. 42.

[88]       Weighing the weakness of the defences relied on and the injury to his reputation and privacy against the interest in publicity of judicial proceedings and freedom of expression (see Edmonton Journal v. Alberta (A.G.), [1989] 2 S.C.R. 1326), I find that the evidence obtained by the commission should now be entered.

[89]       There is one other most important point. In my opinion, the mandate I have received to act as commissioner as a result of the order by the Associate Chief Justice gives me no power not to disclose testimony I have heard and to seal the transcripts. The instructions I received are to the contrary, as also is Rule 273, which reads as follows:

[90]       For these reasons, the defendant's motion is dismissed. I direct that the evidence obtained by the commission be entered in the trial record, except for lines 12 to 26 (p. 133) of the testimony of Nicolai Antonovich Grigorovich and lines 7 to 25 (p. 26) of the testimony of Joseph Harkavi, which should be deleted.

                                                                                                                                      "François Lemieux"             

                                                                                                                                                               Judge                         

Ottawa, Ontario

February 26, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                             T-166-00

STYLE OF CAUSE:                                   MCI v. WALTER OBODZINSKY (AKA WLODZIMIERZ & VOLODYA OBODZINSKY)

PLACE OF HEARING:                           MONTRÉAL

DATE OF HEARING:                               JANUARY 13, 2003

REASONS:                                                  LEMIEUX J.

DATE OF REASONS:                               JANUARY 26, 2003

APPEARANCES:

David Lucas                                                                                          FOR THE PLAINTIFF

Sébastien Dasylva

Johanne Doyon FOR THE DEFENDANT

SOLICITORS OF RECORD:

MORRIS ROSENBERG                                                                     FOR THE PLAINTIFF

DEPUTY ATTORNEY GENERAL OF CANADA

DOYON, GUERTIN, MONTBRIAND &                                       FOR THE DEFENDANT

PLAMONDON