Canada (Citizenship and Immigration) v. Odynsky, docket T-2669-97

Date: 19990415

Docket: T-2669-97

IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29 and section 19 of the Canadian Citizenship Act, R.S.C. 1952, c. 33;

IN THE MATTER of a request for reference to the Federal Court pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29;

IN THE MATTER of a reference to the Court commenced pursuant to Rule 920 of the former Federal Court Rules, continued pursuant to Rules 169(a) and 501 of the Federal Court Rules, 1998

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Plaintiff,

     - and -

     WASYL ODYNSKY,

     Defendant.

     Reasons for Rulings on Aspects of Evidence

     of a Historian as an Expert Witness

MacKAY J.:

[1]      These Reasons explain rulings, herein set out, concerning aspects of evidence objected to by the defendant when it was sought to be adduced in the report and testimony of Dr. Yitshak Arad, an expert witness, an historian, with particular expertise in regard to Operation Reinhardt, the name given to the Nazi program commenced in 1942 for exterminating Jews in the area of Poland occupied by Germany and administered under the Generalgouvernment. Dr. Arad was presented as a witness for the plaintiff Minister and accepted by counsel for the defendant as an expert, qualified to give opinion evidence in relation to matters within his expertise as defined, subject to two objections.

[2]      The defendant's objections arise in proceedings in which the plaintiff Minister seeks a declaration, pursuant to ss. 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as a preliminary condition to the Minister's proposal to recommend to the Governor in Council the revocation of the defendant's Canadian citizenship. The recommendation, if it were to be made, would be based upon the Minister's conclusion, and the declaration here sought, that the defendant was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations, or fraud or by knowingly concealing his past activities during World War II.

[3]      Two brief portions of Dr. Arad's report, and any testimony relating to those, are, in the submission of counsel for the defendant, inadmissible in these proceedings, except for the explanation of the background and purposes of the two portions in question so far as those aspects were necessary for consideration and disposition of the defendant's objections.

[4]      The two portions objected to, for different reasons, concern, first, a portion that included a substantial quotation from a report by another person who is not a witness before the Court, and second, a portion that describes activities in which it is said the organization, in which the defendant was involved and employed during the last year and a half of World War II, was engaged at various locations in various activities, other than those said to be specified in the Minister's original Notice of Revocation to the defendant, which notice led to these proceedings.

[5]      I deal with each of these objections in turn.

Quotation by an expert witness from a report by a non-expert

[6]      Within his expert report Dr. Arad discusses events and activities in the lives of prisoners and their guards at Poniatawa Camp for forced labourers, a camp operated by the SS and police forces under the Generalgouvernment of the incorporated territories of the Third Reich, in an area that was in Poland in the years prior to World War II. A portion of the report's description is "a picture of daily life" at Poniatawa Camp consisting principally of quotations from a report written by Ms. Tzipora Blum, a survivor of the camp, concerning her experience there. The quotations extend over more than one page of the total 30 pages of text, at pages 23-25, of Dr. Arad's report.

[7]      In cross-examination, Dr. Arad described the background of the report of Ms. Blum from which he quoted. The report is one taken for and held by the archives of Yad Vashem Martyrs' and Heroes' Remembrance Authority, a statutory-based museum agency in Israel, concerned, inter alia, with preservation of records concerning the holocaust in World War II. The report was provided by Ms. Blum as part of an oral history project, a collection of oral recorded statements, later transcribed as a written record. The particular circumstances leading to Ms. Blum's statement were not described but Dr. Arad, a former director of Yad Vashem, said that in the usual course such statements would be given and recorded at the individual's residence, not under oath, and not subject to cross-examination, though perhaps subject to questions for purposes of clarification. The report is not that of an expert witness as understood for purposes of legal proceedings. Its purpose, like that of similar statements in a variety of historical projects, is to contribute to a collection of recorded statements describing the experiences of survivors of Nazi death and labour camps in war time years. The statement by Ms. Blum was said to have been given in May 1978, not in contemplation of these or other particular legal proceedings.

[8]      On behalf of the defendant objection is made to this portion of the expert's report. It is urged that it is not admissible because it is hearsay and it is not offered by Dr. Arad as an opinion of his own. In cross-examination he acknowledged that this portion is not cited or referred to elsewhere in his report as the basis of any opinion of his. It is submitted there is no basis for admission of Ms. Blum's comments on principles of necessity and reliability. Moreover, in the circumstances of this case, where a preliminary list of possible witnesses to be called by the Minister included the name of Ms. Blum but it was later reported that she had died a few years ago, admission of the portion objected to would permit admission of a statement in writing without possibility of cross-examination of the witness who was at one time considered as a potential witness in this proceeding.

[9]      For the plaintiff Minister it is urged that excluding the portion consisting of quotations from Ms. Blum's report would simply support the hearsay rule on the basis of the form of the statement, without reference to its content. An expert witness giving opinion on historical events is said to be able to base his or her opinion on statements such as that of Ms. Blum for such statements are acceptable sources for the expert historian's opinion. Substantial reliance was placed on the decision of the Ontario Court of Appeal in Regina v. Zundel (1987), 31 C.C.C. (3d) 97 (Ont. C.A.) which dealt with the use of hearsay evidence by an expert historian as the basis for the expert's opinion evidence.

[10]      In my view, the defendant's objection is to be sustained. I direct that the portion of Dr. Arad's expert report, from the third last line of text above the footnotes at the bottom of page 23, to and including the fourth line of text at the top of page 25, and the footnotes 49 to 52 which relate to that portion of the report, is inadmissible as evidence in this proceeding. While that portion is not struck from Dr. Arad's report as filed in this proceeding, it and any testimony concerning the substance of that portion of the report, which simply incorporates portions quoted from the written statement of Ms. Tzipona Blum, is not evidence in this matter.

[11]      That conclusion is based upon my assessment that the portion in question is hearsay; it is not put forth as an opinion of Dr. Arad, the expert witness, himself, and he acknowledges that it does not provide the basis for any opinion he expresses elsewhere in his report. Thus it does not qualify within the exception to the hearsay rule described in Regina v. Zundel, supra, (at pp. 135-149 of 31 C.C.C. (3d)). Though it may be the sort of material that a careful and competent historian would consider and rely upon as a basis for his opinion, and if so it would be admissible to show that basis, it is not used in that way in this case by Dr. Arad. Moreover, he does not offer this portion as his own opinion. There is no evidence or argument to support admission of Ms. Blum's statements on grounds of necessity and reliability. Those statements quoted from her, and the connecting words in Dr. Arad's report which are based upon her statement and which interconnect the quoted portions of her statement, are inadmissible as evidence in this proceeding.

Relevance: The Comments of an Expert Witness and the Terms of the Minister's Notice of Revocation

[12]      A portion of Dr. Arad's report as an expert, at pp. 29-30, refers briefly to activities of the "Trawnicki men", after the liquidation of death camps in Poland and of the Jews in the camps at Trawnicki and Poniatawa, in guarding vital locations in the Lublin district, in anti-partisan actions, in their organization into the "Battalion Streibel", and in their engagement in building defence positions west of the Vistula River at Jedrzejow as German forces retreated before the advancing Russian Army in 1944.

[13]      Objection to these references is raised on behalf of the defendant on grounds of relevance. In reliance in part upon the decision of Mr. Justice Noël in The Minister of Citizenship and Immigration v. Dueck¹ counsel urges that the Notice of Revocation defines the case that the defendant is obliged to meet, and evidence about matters outside the terms of that Notice is simply inadmissible as irrelevant to the issue before the Court. In the portion of the report of Dr. Arad here objected to for the defendant, it is urged that the matters referred to are activities at times and places other than those specifically referred to within the Notice of Revocation given to Mr. Odynsky upon which he requested a reference to the Court, pursuant to s.18 of the Act, which gave rise to this proceeding.

[14]      The circumstances in Dueck were somewhat different from those in this case. First, the Notice of Revocation sent to Mr. Dueck was different from that sent to Mr. Odynsky in this case. There the notice was on grounds that

...you [i.e. Dueck] have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that you failed to divulge to Canadian immigration and citizenship officials your membership in the Selidovka district (raion) police in German occupied Ukraine during the period 1941 to 1943, and your participation in the execution of civilians and prisoners of war during that time...

[15]      Before the matter came on for hearing the Minister in that case amended the Summary of Facts and Evidence earlier filed, to abandon the allegation that Dueck had participated in executions. On a motion to dismiss the application by the Minister, Noël J. declined, finding that the allegation of failure to disclose membership in the Selidovka police could fairly be read as a self standing allegation which could lead to the revocation of citizenship if it were concealed. In argument at the conclusion of that case the Minister urged that it remained open to her to seek a finding that the respondent Dueck had collaborated with the enemy otherwise than through his membership in the Selidovka police, and that he had gained entry into Canada by failing to disclose his collaborationist past.

[16]      Noël J. held that his earlier decision refusing the motion to dismiss the case, following withdrawal of certain allegations by the Minister, in effect restricted the Court's jurisdiction to the matters remaining within the ambit of the Notice of Revocation. Thus, in that case, to succeed, it was incumbent on the Minister to establish that Dueck was a member of the Selidovka police. Noël J. further commented:

To be clear, I agree that a finding that the respondent collaborated with the enemy is within the purview of this reference so long as it comes within the ambit of the Notice. For instance, the Notice when read with the Amended Summary does contemplate a finding that the Selidovka District Police was a collaborationist organization whose members joined voluntarily and as such were collaborators...2

...

... The Summary of Facts and Evidence is intended to outline the facts and evidence to be relied upon by the applicant to establish the allegation contained in the Notice. The applicant cannot, under the guise of communicating her means of proving the allegation, extend the Notice beyond what it contemplates. However, one chooses to read the Notice in this case, it never contemplated that the applicant would seek revocation of the respondent's citizenship because he failed to disclose his activities as a translator or his membership in the police at Sedanez.3

[17]      I am not prepared to accept submissions for the Minister in this case that the decision in Dueck is wrong in law. Nor am I prepared to accept submissions that the Minister's Summary of Facts and Evidence in this case, independently from the terms of the Notice of Revocation, can frame the case that the defendant must here meet. In my opinion, the Notice of Revocation is significant in describing the case, or the issue, before the Court. It may be, as is here urged for the plaintiff Minister, that by the Summary and the opportunity to discover a representative of the Minister, the defendant is informed of the nature of the case to be met, just as in a criminal case knowledge of an accused of the circumstances and reasons underlying charges against him will sustain a general charge, for example, for impaired driving⁴, or for assault⁵.

[18]      In my view, the Notice of Revocation must be considered significant in defining, albeit in brief terms, the basis of the Minister's decision to seek revocation of the citizenship of the defendant. That is what the document, on its face, purports to do. It is the grounds there set out which give the defendant notice and a basis for deciding whether or not to request that the matter be referred to this Court. If, as in this case, he decides to request a reference, the Minister's Notice of Reference refers "the matter of the obtaining of citizenship by the respondent to this Honourable Court for a declaration that the respondent was admitted to Canada for permanent residence and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances". The Notice of Revocation, annexed to and in support of the Minister's reference, is filed with the Court, well before the Summary of Facts and Evidence, now the statement of claim, is filed. In my view, the Notice of Revocation sets the framework for the Court's assessment of the Minister's request for a reference.

[19]      Similarly, in a case where, following receipt of a Notice of Revocation from the Minister, the person concerned does not request referral of the matter to this Court, it is the Notice of Revocation which sets the framework for any subsequent report to the Governor in Council by the Minister recommending revocation of citizenship of the person concerned.

[20]      I agree with Noël J. that within the scope, or the purview, or the framework set by the terms of the Notice of Revocation, the Summary of Facts and Evidence (or under the current Rules, the Minister's Statement of Claim) may provide particulars that the Minister will seek to establish in relation to the general terms in the Notice. Insofar as those later filed statements allege facts outside the scope of the Notice of Revocation, those allegations are extraneous, and irrelevant to the issue defined for the Court, and for the defendant, by the Notice of Revocation.

[21]      That does not entirely dispose of the issue before me. The terms of the Notice of Revocation in this case are, in part, that the Minister intends to make a report to the Governor in Council seeking revocation of the defendant's citizenship

... on the grounds that you have been admitted to Canada for permanent residence and have obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, in that you failed to divulge to Canadian immigration and citizenship officials your collaboration with German authorities and your engagement in activities connected with forced labour and concentration camps during the period 1943-44, as a guard at the Trawnicki Training Camp and later at the Poniatawa Labour Camp, in Poland.

[22]      For the Minister it is urged that the terms describing the defendant's wartime activities are to be read disjunctively, embracing two different allegations, i.e. "your collaboration with German authorities" and "your engagement in activities connected with forced labour and concentration camps during the period 1943-44 as a guard" at the named camps in Poland. For the defendant it is urged that the latter activities, and particularly the phrase designating their location, qualify the collaboration alleged, so that the activities of concern to the Minister as not having been disclosed, by the Notice of Revocation are limited to "activities connected with forced labour and concentration camps during the period 1943-44, as a guard at the Trawnicki Training Camp and later at the Poniatawa Labour Camp in Poland." Even if that were accepted, if the activities are not read disjunctively it is urged for the Minister that collaboration by the defendant through activities as a guard at the forced labour camps at Trawnicki and Poniatawa must include all the activities of the guards there at the time in question, with particulars of those activities as may appear from the Summary of Facts and Evidence or even from discovery.

[23]      In my opinion, the two phrases describing the defendant's wartime activities, joined by "and" in the paragraph setting out the grounds for proposed revocation, are to be read disjunctively. Each can be read as independent of the other. If not so read, one is redundant. It would be inappropriate to assume it was the Minister's intent to include redundant descriptions in the Notice of Revocation. I agree with the defendant that the allegation "you failed to divulge... your collaboration with German authorities..." would be inadequate notice without elaboration. But here that elaboration is provided by particulars alleged in the Summary of Facts and Evidence of the Minister, as those in turn may be refined by discovery or admissions of the Minister's representatives.

[24]      For the Minister, it is urged that paragraphs 18 and 19 of her Summary of Facts and Evidence set out particulars of the "collaboration" alleged in the Notice of Revocation. Those paragraphs do set out in some detail activities of the "Trawnicki Men", trained at Trawnicki and thereafter serving there and at Poniatawa as guards. The description includes reference to involvement of some elements of the Trawnicki men in combatting partisans or in serving as guards at other concentration camps, in their reorganization as the Battalion Streibel when the Germans retreated from the Lublin area, and ultimately their employment within Germany, on the outskirts of German cities, clearing rubble left by Allied bombing raids. Those details of the alleged collaboration with German authorities must be qualified by the admission of counsel for the plaintiff at the hearing that there is no evidence to be presented of specific acts of collaboration, or of specific anti-partisan activities, by the defendant, Mr. Odynsky.

[25]      I note that in Dueck, after withdrawal of part of the original allegation of the Minister in the Notice of Revocation, there was left no general allegation of collaboration activities. It is in those circumstances that the decision was made to exclude argument of activities of collaboration other than those integral to service with the Selidovka police, which was the only ground left in the Notice of Revocation for the basis of the Minister's action. Noël J. would have permitted evidence and argument in relation to collaboration activities of the respondent had any been described in the Summary of Facts in that case which clearly fell within the scope of the Notice of Revocation, i.e. as an integral part of his service with the police at Selidovka as the Notice alleged.

[26]      Similarly, in this case I find that the particulars alleged in the Statement of Facts and Evidence may inform or qualify by details the general allegation of "collaboration with German authorities" set out in the Notice of Revocation. I note that in another case, in directing the case to be met by the person concerned, I construed the Notice of Revocation as modified by the particulars alleged in the Minister's Statement of Facts and Evidence, a process similar to that adopted by Noël J. in Dueck. (See Transcript, pp. 1198 to 1209, 14 September 1998, in the matter of The Minister of Citizenship and Immigration v. Helmut Oberlander).

[27]      Thus, the evidence of Dr. Arad as it relates to those particulars in the Statement of Facts and Evidence is admissible, including his description of some "Trawnicki men" being engaged in guarding vital locations and in "pacification actions" against the partisans, his references to source reports on which his comments are based, his description of the German retreat and the formation of the "Battalion Streibel".

[28]      That description appears at the bottom of p. 29 and the top of p. 30 of Dr. Arad's report. The only parts of that portion of his report, to which objection is taken, that I would say is beyond the scope of the collaboration alleged, by the Notice of Revocation as particularized by the Summary of Facts and Evidence, is the brief sentence at the end of that portion:

There they were engaged in building some defence positions.

No such activity is alleged in the Summary of Facts and Evidence, and it cannot be relevant as a particular of the allegations made in the Notice of Revocation.

[29]      I leave for another day, argument about the significance of this portion of the evidence of Dr. Arad, since it is admitted by counsel that there is no evidence to be proffered by the plaintiff of any activities of Mr. Odynsky himself in collaborating with German authorities, or in anti-partisan activities.

Conclusion

[30]      In the result, I rule that the following portions of Dr. Arad's expert report shall not be considered as evidence in this matter:

1)      the introductory and connecting passages between quotations, and the quotations, from a report by Tzipora Blum, from the last three lines of text of Dr. Arad's report at p. 23 to the end of the 4th line at the top of p. 25, together with the footnotes cited for that portion of text;

2)      the sentence at the 9th line of page 30 of the report that reads:

There, they were engaged in building some defence positions.

[31]      For convenience, this ruling is set out in a separate order, without reasons, and filed this day.

    

                             (Sgd.) "W. Andrew MacKay"

                                 Judge

Vancouver, British Columbia

15 April 1999

__________________

     ¹      Court File (December 21, 1998) F.C.T.D.

     ²      Id. at para. 137.

     ³      Id. at para. 140.

     ⁴      See, e.g., R. v. Ryan (citation to be added).

     ⁵      See, e.g. R.I.C. (citation to be added).