Canada (Minister of Citizenship and Immigration) v. Seifert, 2004 FC 1010

Date: 20040720

Docket: T-2016-01

Citation: 2004 FC 1010

Toronto, Ontario, July 20^th, 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 plaintiff seeks to revoke Mr. Michael Seifert's citizenship on the grounds that he gained entry to Canada by making false statements to Canadian authorities about his national origin and his activities during World War II. To support its allegations, the plaintiff asks me to order that evidence may be taken by Commission outside of Canada, specifically, in Italy, where material witnesses reside. The plaintiff has also asked me to order that certain elements of Mr. Seifert's statement of defence and counterclaim be severed from this proceeding and decided separately.

[2]                For this part, Mr. Seifert asks me to order the Minister to pay his legal fees both in respect of the Commission evidence and for the remainder of the trial. He also asks me to recognize the possibility that he may wish to call and examine his own witnesses in Italy.

[3]                I will grant the plaintiff's request to hear evidence in Italy. I will also grant, in part, the plaintiff's request to sever off some of Mr. Seifert's counter-claims. In addition, I will grant, in part, Mr. Seifert's request regarding his legal fees. I will also recognize his right to request that I hear witnesses in support of his position, outside Canada.

I. Issues

1.          Should the plaintiff's request to take Commission evidence in Italy be granted? If so, should the defendant be permitted to make a similar request?

2.          Should the defendant's request for funding of the defence be granted?

3.          Should portions of the defendant's counter-claim be severed from this action?

II. Analysis

A. Should the plaintiff's request to take Commission evidence in Italy be granted? If so, should the defendant be permitted to make a similar request?

[4]                The plaintiff wishes to examine 12 witnesses who will say that they were prisoners at a camp in Balzano, Italy, in 1944 and 1945, where it is alleged that Mr. Seifert served as a guard. These witnesses are all quite elderly (between 78 and 92 years of age) and are unwilling to travel to Canada to testify. It should take no more than 10 days to hear these witnesses.

[5]                I am satisfied that the plaintiff's request is reasonable in all the circumstances and in the interests of the due administration of justice. The evidence sought is material to this proceeding; the witnesses are able and willing to testify in Italy; Italian authorities have expressed a willingness to cooperate; the age and frailty of the witnesses makes it impracticable for them to travel here; and it may be more cost effective for the Court to take the evidence in Italy than to have the witnesses come to Canada.

[6]                Mr. Seifert asks that I consider allowing him to examine material witnesses in Italy should it come to light that there are persons who might be in a position to support his defence. Obviously, I cannot make any specific order without knowing who the witness or witnesses might be or any of the other relevant circumstances. However, if a specific request is made at a later point, I will consider it.

B. Should the defendant's request for funding of the defence be granted?

[7]                Mr. Seifert has asked me to order that the plaintiff pay his counsel fees and disbursements both for proceedings in Italy and for the remainder of the trial. He made the same request to Hugessen J., the case management judge in this proceeding, who turned him down on March 5, 2003.

[8]                Mr. Seifert bases his request for funding on the ground that his rights under the Canadian Charter of Rights and Freedoms, are engaged by these proceedings and, as such, that he is entitled to legal representation. He cites the following cases in support of his position: R. v. Rowbotham, [1988] O.J. No. 271 (Ont. C.A.); New Brunswick (Minister of Health and Community Services ) v. G. (J.), [1999] 3 S.C.R. 46.

[9]                The plaintiff argues that Mr. Seifert's request is ill-founded because the case law clearly states that citizenship revocation proceedings do not raise Charter issues, being entirely civil in nature (Canada (Secretary of State) v. Luitjens, [1992] 142 N.R. 173 (F.C.A.)). However, Mr. Seifert contends in these proceedings that his rights under the Charter have been infringed and I hesitate to make a ruling at this preliminary stage that forecloses those arguments. Nevertheless, assuming that the Charter is engaged here, I cannot conclude that it provides Mr. Seifert the right to a fully-funded defence. First of all, this case is unlike the New Brunswick v. G.(J.) case, above, in that the legal aid plan in New Brunswick did not cover the child custody proceedings that were in issue there. In this case, Mr. Seifert was at least entitled to seek legal aid. He was turned down because of his income and assets. Second, this case is also unlike Rowbotham, above. There, the Ontario Court of Appeal concluded that the accused, who had been turned down for legal aid because of her income, did not have the funds to retain counsel for a twelve-month trial. Here, I have no evidence that Mr. Seifert cannot afford to be represented in these proceedings, which are estimated to last a maximum of 8 weeks (including the 10 days in Italy). The Seiferts' matrimonial home, the title of which has been transferred to Mrs. Christine Seifert, is currently valued in excess of $300,000. I cannot ignore this asset. Nor can I find that legal aid authorities were wrong to consider its potential as a source of funds with which to pay counsel. I note that Romilly J. came to the same conclusion in the parallel extradition proceedings that are ongoing in respect of Mr. Seifert: A.G. of Canada v. Seifert (No. 2) 2003 BCSC 351, [2003] B.C.J. No. 471.

[10]            However, I will grant Mr. Seifert partial relief. Taking commission evidence outside the country is an extraordinary procedure. The Court, in its discretion, grants such orders only in special circumstances and where the proper administration of justice requires it. It has a broad discretion to decide the terms and conditions under which commission evidence may be taken and, in particular, may give directions regarding "the time, place, manner and costs" of the process (Rule 271(3) of the Federal Court Rules, 1998, SOR/98-106). I also consider the taking of commission evidence to be a particularly significant part of these proceedings, for which it is necessary that Mr. Seifert be represented by counsel who is prepared and in a position to conduct proper cross-examination. My role as fact-finder will be assisted by able counsel on both sides.

[11]            Accordingly, I will order that the plaintiff, in addition to the other expenses of the commission, pay reasonable counsel fees and disbursements for the 10-day duration of the Commission and reasonable travel time to and from Italy.

C. Should portions of the defendant's counterclaim be severed from this action?

[12]            The plaintiff argued originally that most of the issues raised in the defendant's thrice amended statement of defence and counterclaim should be severed from this action and tried separately. Those issues included a variety of Charter arguments, as well as allegations of defamation, breach of fiduciary duties and apprehension of bias, among others.

[13]            Before me, counsel for the plaintiff conceded that the defendant could properly raise the defence of necessity and Charter arguments within this action. For his part, counsel for Mr. Seifert conceded that the allegations of defamation should be tried separately. He also undertook to draft constitutional questions for the Charter arguments involving attacks on legislation within a reasonable time frame.

[14]            Accordingly, it remains to be decided whether the other allegations put forward by the defendant should be included in this action or severed. I agree with the defendant that they properly form part of this action. The defendant argues that this process is tainted by virtue of certain public statements made by the Minister. The defendant suggests that the Minister's statements give rise to a reasonable apprehension of bias and support an argument that these proceedings constitute an abuse of process. I agree that these matters should be raised within these proceedings, not separately. They relate to the propriety of the action before me and should be argued and decided here.

[15]            There is one additional issue that I asked counsel to address: the delivery of expert reports. Counsel for the plaintiff stated that he proposed to tender four experts' reports - two relating to Canadian immigration policy, one on the Balzano camp and one on the structure of the German SS. The first three will be served and filed by the end of July. The fourth will be served and filed by the end of August. The latter, strictly speaking, will not comply with the usual 60-day rule (Rule 279 (b) of the Federal Court Rules, 1998), yet I will accept it. Counsel for the defendant stated that he is unsure whether he will commission expert reports. I will deal with any submissions on that subject if and when they are presented.

                                                                       ORDER

THIS COURT ORDERS that :

1.          The Administrator shall prepare and issue, in the form provided under Rule 272 of the Federal Court Rules, 1998, SOR/98-106, a Commission naming the undersigned to take, on behalf of the plaintiff for use at trial, the evidence of the witnesses whose names and addresses are listed in the attached Annex "A", and who all reside in Italy.

2.          The Administrator prepare and issue a Letter of Request addressed to the judicial authorities of Italy, for assistance in the form annexed hereto (Annex "B")requesting the issuance of such process as is necessary to compel the witnesses, and any other witness who may have relevant evidence to give relating to the action before the Court, to attend and be examined before the Commissioner.

3.          All costs incurred by the Commissioner and the Court incidental to the taking of evidence under the Commission to be issued, and all other expenses of the parties incidental to the Commission to be issued shall be paid by the plaintiff.

4.          The plaintiff shall pay the reasonable counsel fees and disbursements of the defendant for the proceedings on Commission, as well as for reasonable travel time to and from Italy.

5.          The plaintiff may request that the Court consider a motion for Commission evidence for the defence;

6.          The defendant's counterclaim for defamation shall be severed from his statement of defence and tried separately;

7.          The defendant shall serve and file constitutional questions on or before October 1, 2004;

8.          The plaintiff shall serve and file its experts' reports on Canadian immigration policy and the Balzano camp on or before July 31, 2004, and its expert report on the structure of the German SS on or before August 31, 2004.

"James W. O'Reilly"

                                                                                                                                                   F.C.J.                         

FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-2016-01

STYLE OF CAUSE:               THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                                                                 Plaintiff

and

MICHAEL SEIFERT

                                                                                                                                            Defendant

PLACE OF HEARING:                     VANCOUVER, BRITISH COLUMBIA

DATE OF HEARING:                       JULY 8, 2004

REASONS FOR ORDER

AND ORDER BY:                            O'REILLY J.

DATED:                                              JULY 20, 2004

APPEARANCES BY:

Ms. Beverly Wilton, and           

Mr. Barney Brucker

FOR THE PLAINTIFF

Mr. Douglas Christie                 

FOR THE DEFENDANT

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE PLAINTIFF

Douglas Christie

Barrister & Solicitor                  

Victoria, British Columbia

FOR THE DEFENDANT

                                                                                ANNEX "A"

                                                                          Information regarding

                                                                     Michael Seifert's Witnesses

                                                                                  Annex "B"

                                                                                                                                           Court File No.: T-2016-01

BETWEEN:                 

                                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                                         Plaintiff

AND:

                                                                         MICHAEL SEIFERT

                                                                                                                                                                     Defendant

                                                                       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.

THIS COURT HAS ISSUED A COMMISSION to Justice James O'Reilly of the Federal Court, providing for the examination of the following witnesses:

                                                                   POTENTIAL WITNESSES

YOU ARE REQUESTED, in furtherance of justice, to cause the above-named witnesses to appear before the Commissioner by the means ordinarily used in your jurisdiction, if necessary to secure attendance, and to answer questions under oath or affirmation and to bring to and produce at the examination any document as may be required at the time of service to appear.

YOU ARE ALSO REQUESTED to permit the Commissioner to conduct the examination of the witnesses in accordance with the Federal Court Rules, 1998, SOR/78-172 and the Commission issued by this Court and, in particular with the laws of evidence and procedure of Canada.

AND WHEN YOU RQUEST IT, the Federal Court 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.

Dated:                                                                                                                                                            Issued by:                                             

Address of local office: