Canada (Minister of Citizenship and Immigration) v. Tobiass, docket T-569-95

Date: 19971223

Docket: T-569-95

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

    

Applicant

- and -

ERICHS TOBIASS

Respondent

     REASONS FOR ORDER

NOËL, J.:

[1]      The applicant moves for directions setting down the procedure to be followed in respect of this reference. The respondent by way of a cross-motion resists the setting down of certain of these procedures and seeks the disclosure of documents and information. Before I address the particulars of these motions I will briefly set out the history of this case in order to give the matter some perspective.

[2]      In January of 1995 the Registrar of Canadian Citizenship sent a Notice of Revocation to the respondent. The purpose of the Notice was to advise the respondent of the Minister of Citizenship and Immigration's (the applicant) intention to submit a report to the Governor-in-Council recommending that the respondent's citizenship be revoked. The Notice also advised the respondent of his right to have the matter referred to the Federal Court -- Trial Division.

[3]      At the respondent's behest the applicant then filed a Notice of Reference before this Court, seeking a declaration that the respondent obtained his citizenship through false representation, fraud, or by knowingly concealing material circumstances. A short time later, in May of 1995, the applicant filed a notice of motion for procedural directions and the respondent filed a cross-motion.

[4]      These motions for directions soon became submerged in a number of procedural disputes which, for a variety of reasons, persisted for almost a year's time. By reason of events unrelated to the present motions a stay of proceedings was granted in this file. This stay was subsequently overturned by the Federal Court of Appeal; a decision which was affirmed by the Supreme Court of Canada on September 25, 1997.¹

[5]      Approximately one month following the Supreme Court's lifting of the stay in this matter, the applicant withdrew the original motion for directions and filed the amended motion for directions presently before the Court.² The applicant again seeks directions with respect to the procedure to be followed in this reference. In particular the applicant seeks an order:

(1)      Requiring the Respondent to serve and file a summary of facts and evidence on which he intends to rely at the hearing of the case;

(2)      Requiring both parties to deliver a list of documents containing:

(a) sufficient description of all documents relevant to any matter in issue that:

(i)      are in the possession, power or control of the party and for which no privilege is claimed;

(ii)      are in the possession, power or control of the party and for which privilege is claimed;

(b) a statement that the party is not aware of any relevant documents other than those that are set out in the list;

(3)      Requiring either party that upon becoming aware that the list of documents served and filed by the party is inaccurate or deficient, to serve and file a supplementary list, correcting the inaccuracy and deficiency without delay;

(4)      Requiring both parties to allow the other party to inspect all documents, described in the list of documents, except those for where privilege is claimed, during business hours, at a mutually convenient time, no sooner than fifteen days after the service of the list of documents and to make copies of any such documents, at the inspecting parties expense;

(5)      Providing that both parties may conduct an oral examination for discovery of the other party, but in the case of the Applicant, the person discovered shall be a representative of the Applicant selected by her;

(6)      Providing that either party may by notice (Form 23, Federal Court Rules), require that the other party admit any documents and where such notice has been served, if the party served has not within twenty days of the date of service, or such further period as the party serving the notice or the Court may allow, served upon the other an affidavit either denying that the document is genuine, or setting forth the grounds for not admitting it, the party served shall be deemed to have admitted that that document is genuine;

(7)      Providing that any party may not less than thirty days before the commencement of the trial by notice (Form 24, Federal Court Rules), request the other party to admit, for the purpose of the hearing of this case only, any specific facts mentioned in such notice;

(8)      Providing that any party who intends to adduce expert evidence at the hearing of this case, shall serve and file an affidavit setting out the substance of the proposed evidence of each expert witness, at least thirty days prior to the commencement of the hearing;

(9)      Fixing of dates for the completion of each of the steps referred to in subparagraphs (1), (2) and (5) above;

(10)      Fixing the date for the hearing of this case.

[6]      The respondent's cross-motion seeks the following orders:

(1)      An order that the Applicant provide the information requested as set out in the letter requesting same attached to the Affidavit of Linda Cassell dated May 4th, 1995 prior to the Respondent having to file a reply;

(2)      An order that the Applicant provide particulars of the alleged war crimes to which the Respondent is alleged to have admitted;

(3)      An order that the Applicant may not use at the hearing any evidence obtained from the Respondent by the Deschenes Commission;

(4)      Directions from this court as to whether the Respondent may bring an application at the reference or prior to the reference dismissing the application of the Applicant summarily based on admissible evidence available to the Applicant and provided to the Respondent prior to such a motion and a time by which the Applicant must provide full, true and plain disclosure to the Respondent for said purpose;

(5)      An order that a representative of the Applicant submit himself or herself to full examination under oath prior to the reference or the Responding having to file a reply so that the Respondent may be fully informed as to what case the Respondent must meet;

(6)      An order that the Applicant's motion returnable May 8, 1995, be postponed until the Applicant has made full, true and plain disclosure to the Respondent of all matters in issue;

(7)      An order that the Respondent only be required to reply to matters dealing directly with the issues on the reference, to wit, what he was asked at the time he applied for landing in Canada and what he was asked when he applied for Canadian citizenship;

(8)      An order that the Applicant provide the Respondent with copies of all relevant Orders-in-Council, Cabinet Directives, Immigration, Security and Police Regulations and internal government memoranda relating to the issues raised by the application and enforcement thereof from a year prior to landing of the Respondent in Canada to date;

(9)      An order that the Respondent be provided with a copy of his application for immigration to Canada and connected documents, and if same are not available, an explanation as to why such documents are not available, and if destroyed, when and under what authority and under whose direction the documents were destroyed;

(10)      An order that the Respondent be provided with particulars, if the documents requested in paragraph 9 are not available, of the removal and document destruction policies in force within Canadian government departments and agencies, more particularly, Immigration, External Affairs, RCMP and CSIS during the time periods relevant to this proceeding;

(11)      An order that the Respondent be given particulars of the reasons for the destruction of immigration files in 1982 and 1983. Specifically, particulars of who authorized the destruction of said records, under what authority it was authorization;

(12)      An order that all charter issues, if any, be dealt with preferably at the commencement of the reference;

(13)      An order that the Respondent be at liberty to apply to this court for an order striking out pleadings or those parts of pleadings which the Respondent alleges are scandalous or irrelevant;

(14)      An order requiring the Applicant to give the Respondent particulars of when the Respondent first became aware of the alleged wrong doing of the Respondent and what, if anything, the Applicant did with such information since it became aware of it;

(15)      An order that any admission, if any, relating to criminal behaviour be inadmissible unless the Respondent was advised of his right to counsel and so understood such right;

(16)      An order that following any disclosure or discovery and prior to any reference either party may apply to the court for further directions or relief.

[7]      The respondent resists those parts of the applicant"s motion calling for the kind of pre-trial exchange of information normally coincident to a civil action. In particular, the respondent takes exception to the applicant"s request for material discovery, as set out in paragraph 5 of the amended motion for directions. With respect to his cross-motion, the respondent took the position during the hearing that the only point in issue was his request for full disclosure of the documents and information requested.³

Disposition

[8]      The respondent recognizes that the civil rules of practice invoked by the applicant would provide him with the means to obtain the disclosure and the answers which he seeks from the applicant. This effectively disposes of all requests for disclosure of documents and information set out in the respondent's cross-motion.

[9]      The respondent is willing to submit to discovery provided that it be restricted only to parts of the allegations that have been made against him. The respondent draws a distinction between what he sees as the civil and the criminal aspects of the allegations that have been made against him and takes the position that he should answer only questions relating to the circumstances in which he obtained his citizenship. He asserts that he has a right to remain silent with respect to the alleged criminal acts which form the subject matter of his alleged failure to disclose.

[10]      In support of this position, the respondent invokes both the right of an accused not to be compelled to give evidence in criminal proceedings instituted against him and the right of a witness not to answer questions which may tend to incriminate him.

[11]      With respect to the first ground, I do not believe that the present proceeding can be viewed as being both civil and criminal as the respondent suggests. Either he stands in this matter as a person charged with an offence, in which case he is entitled to remain silent, or he does not, in which case he is compellable. For the reasons given in Minister of Citizenship and Immigration and Johann Dueck T-938-95,⁴ it is my view that this is a civil proceeding and it follows that the respondent is compellable.

[12]      With respect to the second ground, the respondent asserts that the acts which he is alleged to have committed are war crimes or crimes against humanity which constitute indictable offences under the Criminal Code,⁵ and that he remains at risk of being prosecuted for those offences. He acknowledges that section 13 of the Charter guarantees a witness' right not to have incriminating evidence used against him in any other proceeding⁶ but says that this would not protect him with respect to proceedings outside Canada. I understand the respondent's position to be that the right enshrined in section 13 of the Charter should be given extraterritorial application and since the respect of this right cannot be imposed on a foreign tribunal, section 13 should be construed as preserving the unaltered common law right of a witness not to answer questions which may tend to incriminate him.

[13]      To my knowledge, the common law right of a witness not to answer questions which may tend to incriminate him or her in another proceeding never extended to apprehended foreign proceedings. Furthermore, the respondent was unable to identify any foreign proceeding with respect to which he is at risk.

[14]      I therefore come to the conclusion that the respondent must provide mutual discovery with respect to any matter in issue in this proceeding.

[15]      Turning to the specifics of the applicant's motion for directions, the requests set out in paragraphs 3, 4, 6, 7 and 8 will be granted essentially as framed.

[16]      With respect to the request that the respondent serve and file a summary of facts and evidence,⁷ the form and content of this document should be determined by reference to the principles governing pleadings. This will allow for greater clarity as to what is in issue between the parties and will facilitate the resolution of disputes that may ensue in the course of oral and documentary discovery. The respondent will therefore be required to file a written statement of the position which he intends to take in these proceedings. In his statement, the respondent will admit the allegations of fact reflected in the applicant's summary of fact which he acknowledges to be true, deny those which he intends to challenge, and indicate his lack of knowledge of those allegations the truth of which he has no knowledge and state whether or not he admits them.⁸ The document will also reflect a precise statement of the material facts on which the respondent intends to rely,⁹ and for greater certainty will plead any matter which if not specifically pleaded might take the applicant by surprise.¹⁰

[17]      With respect to documents¹¹ both parties will be ordered to file and serve an affidavit of documents in full compliance with Rule 448 and also a notice to inspect, in conformity with Rule 452. Discovery¹² will be conducted orally. In the case of the applicant the person discovered will be a representative of the applicant selected by her.

[18]      With respect to the request for dates,¹³ the Court is in a position to fix dates for the filing of the respondent's statement, the mutual exchange of affidavits of documents, inspection thereof and the conduct of discoveries. The order will provide for the statement of the respondent to be filed within 30 days of January 1^st, the mutual filing of the affidavits of documents and notices to inspect within 60 days, and the completion of the discoveries within 120 days.

[19]      Based on this schedule, the Court would have been in a position to set the trial down for hearing before the summer recess. However, counsel for the applicant indicated during the hearing that he now intends to seek an order for the taking of evidence abroad. He further indicated that he is not in a position to bring this application now. I was led to understand that the proposed witnesses, while identified, have yet to be contacted and that the logistics required to organize the contemplated commission are not in place. The applicant indicated that the motion would be brought within 60 days.

[20]      I indicated to counsel in open court that I was taken aback by this development. This reference has been outstanding since 1995. In her original notice of motion for directions, the applicant was seeking an order for the taking of evidence abroad. In October of 1997, after the stay of proceedings had been lifted by the Supreme Court, and the parties were informed that all outstanding pre-trial motions would have to be dealt with, the applicant withdrew her original motion for directions and filed an amended motion in which she was no longer seeking an order for commission evidence. The December hearing was intended to deal with all outstanding motions so as to allow for the s.18 reference to proceed without further delay.

[21]      That is the context in which counsel for the applicant noted in passing during the course of the hearing that he now wished to again seek an order for the taking of evidence abroad but that he was not in a position to do so because the necessary inquiries had yet to be made. Keeping in mind that the applicant is on record before both Divisions of this Court, and before the Supreme Court as having stated that this matter is of the utmost urgency precisely because witnesses are old and dying, the withdrawal of the application in October followed by the casual announcement two months later that it will eventually be reintroduced defies explanation.¹⁴

[22]      Any issue surrounding the taking of evidence abroad should have been placed before the Court by now. Instead, three months after the Supreme Court has lifted the stay in this matter, the Court finds itself awaiting a motion which may not be filed for some time and which, if granted, will necessarily impact on the time when this reference can be heard. Although on the face of her motion the applicant requests that the Court fix a date for the hearing of this reference, her conduct precludes the Court from doing so.

[23]      An order is issued today in conformity with these reasons.

     Marc Noël

     Judge

OTTAWA, ONTARIO

December 23, 1997

__________________

     ¹      Canada v.Tobiass et al. No. 25811, September 25, 1997 (yet to be reported).

     ²      The only significant difference between this motion and the original motion filed in May of 1995 is the withdrawal of the request for a commission to take evidence abroad and the inclusion of a request for mutual oral discoveries.

     ³      Paragraph 25 of the Respondent's Supplementary Memorandum of Fact and Law. The other remedies sought in the cross-motion were not pursued.

     ⁴      Judgement rendered December 23, 1997.

     ⁵      Section 7(3.71) to 7(3.77) of the Criminal Code.

     ⁶      Section 13 of the Charter provides:          A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence.

     ⁷      Paragraph 1 of the amended notice of motion.

     ⁸      Rule 413 by analogy.

     ⁹      Rule 408 by analogy.

     ¹⁰      Rule 409(b) by analogy.

     ¹¹      Paragraph 2 of the amended notice of motion.

     ¹²      Paragraph 5 of the amended notice of motion.

     ¹³      Paragraphs 9 and 10 of the amended notice of motion.

     ¹⁴      The suggestion by counsel that the application for commission evidence was not pursued in October because he believed proper practice was that any such application must proceed singly, cannot be taken seriously. All the precedents which counsel has placed before the Court reveal a contrary practise. In any event, counsel's suggestion does not explain why such a motion would not have been filed singly in October.