Date: 19980804
Docket: T-300-97
| IN THE MATTER OF a 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; |
| AND IN THE MATTER OF a reference to the Court pursuant to rule 920 of the Federal Court Rules. |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
SERGE KISLUK
Respondent
REASONS AND ORDER
(Edited version of reasons delivered orally
on Monday, July 27, 1998 in Toronto, Ontario)
LUTFY J.:
[1] The applicant seeks to have admitted as hearsay evidence the signed statements of two deceased Ukrainian citizens. These statements were obtained by Corporal Rob Fnukal of the War Crimes and Passport Unit of the Royal Canadian Mounted Police in May 1994 as part of the investigation into the activities of the respondent during World War II. It is through the testimony of Corporal Fnukal and the two interpreters who assisted him that these statements are sought to be entered into evidence.
[2] The admissibility of hearsay evidence is now to be determined in accordance with the teachings of the Supreme Court of Canada concerning the requirements of necessity and reliability where the traditional exceptions may not be directly applicable.
| [3] In R. v. Khan,1 the Supreme Court considered the admissibility of out-of-court statements of young children. In the words of Justice McLachlin:I conclude that hearsay evidence of a child"s statement on crimes committed against the child should be received, provided that the guarantees of necessity and reliability are met, subject to such safeguards as the judge may consider necessary and subject always to considerations affecting the weight that should be accorded to such evidence. This does not make out-of-court statements by children generally admissible; in particular the requirement of necessity will probably mean that in most cases children will still be called to give viva voce evidence.2 |
In characterizing the reliability of the child"s evidence, McLachlin J. noted:
| The evidence also bore strong indicia of reliability. T. was disinterested, in the sense that her declaration was not made in favour of her interest. She made the declaration before any suggestion of litigation. And beyond doubt she possessed peculiar means of knowledge of the event of which she told her mother. Moreover, the evidence of a child of tender years on such matters may bear its own special stamp of reliability.3 [Emphasis added.] |
| [4] In R. v. Smith,4 the Chief Justice of Canada further elaborated on the "principled approach":If a statement sought to be adduced by way of hearsay evidence is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken , the hearsay evidence may be said to be "reliable", i.e., a circumstantial guarantee of trustworthiness is established. The evidence of the infant complainant in Khan was found to be reliable on this basis.5 [Emphasis added.] |
In declaring inadmissible the murder victim"s statements during one of three telephone conversations, the Chief Justice added:
| While the contents of the third telephone call satisfied the criterion of necessity as well, the events surrounding the making of that call were not sufficient to provide that circumstantial guarantee of trustworthiness which would justify their admission without the test of cross-examination.6 |
| [5] In R. v. B. (K.G.),7 Chief Justice Lamer further considered the indicia of reliability in the case of prior inconsistent statements of a witness:... the requirement of reliability will be satisfied when the circumstances in which the prior statement was made provide sufficient guarantees of its trustworthiness with respect to the two hearsay dangers a reformed rule can realistically address: if (i) the statement is made under oath or solemn affirmation following a warning as to the existence of sanctions and the significance of the oath or affirmation, (ii) the statement is videotaped in its entirety, and (iii) the opposing party, whether the Crown or the defence, has a full opportunity to cross-examine the witness respecting the statement, there will be sufficient circumstantial guarantees of reliability to allow the jury to make substantive use of the statement. |
| ... |
| ... while the statements of the recanting witnesses were videotaped, and counsel for the respondent had a full opportunity to cross-examine the witnesses at trial, the statements were not made under oath, solemn affirmation or by a solemn declaration. However, it may well be that sufficient substitutes for the oath and warning as indicia of reliability exist in this case. ... A trial judge might, having heard the evidence respecting the circumstances under which these statements were made, be satisfied on the balance of probabilities that the statements are sufficiently reliable to be substantively admissible.8 |
| [6] In R. v. Finta,9 the deceased witness Dallos gave two written statements, one to Hungarian state police and the other in the form of an unsworn deposition before a People"s Tribunal. Both statements were made in 1947 concerning World War II events which occurred in 1944. The witness was adverse to the accused Finta who was seeking to rely on portions of the statements. It is useful to understand the reasons of the Ontario Court of Appeal, confirmed by the Supreme Court of Canada, in endorsing the trial judge"s decision to admit the hearsay statements:The trial judge correctly identified the indicia of reliability peculiar to this case. The statements were made on a solemn occasion, somewhat akin to a court proceeding, by a person adverse to the party seeking to tender the statement. They appear to have been made by a person having peculiar means of knowledge of the events described in the statement, and the statements themselves distinguish between events within Dallos" personal knowledge and events about which he had merely received information from others.10 |
Of equal importance, the Court of Appeal distinguished an accused"s use of such evidence from that of the state:
| The evidence of Dallos is sufficiently reliable to justify its admission as an exception to the hearsay rule on behalf of the accused. It dealt relatively contemporaneously with an event which took place 46 years ago and which the declarant, since deceased, had a unique opportunity to observe. The statements were given on a solemn judicial or quasi-judicial occasion by a person who appeared to be opposed to the interest of the party now desirous of having the evidence tendered. Yet it would be unfair and oppressive for the state to prosecute an accused today with the assistance of evidence, however reliable, which has been in existence for some 46 years and which the accused was not given the opportunity to challenge.11 |
[7] In this case, the statements were obtained some fifty years after the events. A Canadian police officer interviewed potential Ukrainian witnesses. Neither spoke or understood the other"s language. The interviews were not intended to be anything akin to a court proceeding. Nor was there any intention that the statements would be used in court proceedings. The persons were made aware of potential litigation, however, and were asked if they would testify, either in Canada or in Ukraine, in proceedings against persons residing in Canada.
[8] There is no video or audio recording of the interviews. There is no verbatim transcription of the questions and answers. The statements are unsworn and are signed by the witnesses.
| [9] A caution was signed at the outset of the interviews. It was printed on a form sheet which served as the first page of the witness statements. The caution was worded as follows:CAUTION TO TELL THE TRUTH: |
| Pursuant to part 3 of Article 167 of the Code of Criminal Procedure of the Ukrainian SSR, the duties of a witness have been explained to (surname, initials of witness) and (he, she) has been warned of the consequences of refusing to testify or avoiding testifying pursuant to Articles 178 and 179 of the Criminal Code of the Ukrainian SSR and of knowingly presenting false evidence pursuant to Article 178 of the Criminal Code of the Ukrainian SSR. |
| _______________ |
| (signature) |
| [Emphasis added.] |
The language of the caution and of Articles 167, 178 and 179 of the Code of Criminal Procedure of the Ukrainian SSR imply an obligation to testify and, of course, to do so truthfully. Refusal by the witness to testify is subject to a period of corrective labour or a fine. There is no evidence establishing the relevance of these provisions, in any legal sense, concerning these interviews. Indeed, Corporal Fnukal intended the interviews to be voluntary. For him, the persons were free not to answer questions or to leave the meeting. Both the caution and Corporal Fnukal encouraged the persons being questioned to provide truthful responses. There is a serious contradiction, however, between that part of the caution which warns of the consequences of "refusing to testify" and the voluntary participation described by Corporal Fnukal. This confusion makes it impossible, in my view, to appreciate what the person really understood in signing the caution. In these circumstances, the caution is of little, if any, value in enhancing the reliability of the statements.
[10] The interview process required interpretation. The first language of both interpreters is Russian. They are both fluent in Ukrainian and completed university studies in English as a foreign language. Both assisted Canadian authorities in several investigations and many interviews. It is not surprising that neither has any recollection of the two interviews in question. One would interpret orally the English questions and the Ukrainian answers. The other would simultaneously write the Ukrainian response. The signed Ukrainian statement could not be and was not a verbatim transcription of the interview.
[11] As part of the investigation concerning the respondent"s activities, Corporal Fnukal conducted in Ukraine thirteen interviews in November 1992 and thirty-nine interviews in May 1994. It is understandable that his recollection of the interviews is only somewhat better than that of the interpreters, even with the assistance of his notes and his photographs of the persons he met. The only other active participant in the two interviews was a Department of Justice lawyer who did not testify in this proceeding.
[12] It is possible to compare the official English translation of the signed statements with the personal notes of Corporal Fnukal who also took down the questions and answers. This comparison was made to a limited extent with the two statements in issue, with a third statement the applicant originally sought to introduce as hearsay evidence and with the statement of one person who subsequently testified during the commission phase of this proceeding. With one witness, an event of admittedly minor importance is dated 1982 in one set of notes and 1992 in another. In several instances, important words, phrases, places and even one name were noted by Corporal Fnukal from the interpretation he heard but were not found in the other interpreter"s handwritten statement signed by the person being interviewed. In one instance of a lengthy response, Corporal Fnukal recorded his asking a supplementary question part way through the answer which was not recorded in the interpreter"s version. These omissions are disconcerting. If the oral interpretation of the witnesses" responses was correct, these omissions render the signed statements less complete and thereby less reliable than the notes taken by Corporal Fnukal.
[13] In summary, the hearsay evidence sought to be entered by the applicant bears none of the indicia of reliability set out in recent decisions. The absence of an oath is complicated by the confusion in the caution. The absence of any mechanical recording renders impossible an assessment of the differences between the police officer"s notes and those of the interpreter. If discrepancies in the notes themselves cannot be verified, it becomes illusory to determine, in the words of Smith , whether the hearsay statements were made "... under circumstances which substantially negate that the declarant was ... mistaken".12 On this analysis alone, one could conclude that the signed statements do not meet the requirements of reliability.
[14] There is more, however, to cast uncertainty concerning the statements, especially without the benefit of contemporaneous or any other cross-examination. The applicant readily admits that there are other discrepancies between the notes of Corporal Fnukal and those portions of the signed statements not reviewed by this Court. Further, the statements include information not observed directly by the persons interviewed although the applicant conceded that these could be expurgated. In these particular circumstances, this does not appear to be satisfactory. Finally, the persons interviewed were located and the meeting logistics arranged through Ukrainian state security officials on behalf of the Office of the Procurator General, only shortly after the collapse of the Soviet Union. Even if I assume, as I am prepared to do, that these officials acted in good faith, the influence their involvement may have had on the person being interviewed can never be tested through cross-examination. This is particularly relevant in view of the confusion in the wording of the caution. In the light of all these circumstances, I am more than satisfied that the applicant has failed to establish on the balance of probabilities the reliability of the two statements.
[15] The assessment of the statements was done incrementally: after the process was described, the preliminary and final portions of the interview statements were examined. I chose not to have disclosed the substantive contents of the approximately six-page statements prior to a threshold assessment. Counsel for the applicant then urged that I review the contents of the statements in their entirety. He acknowledged that, in assessing the reliability of hearsay evidence, a judge has the right to review the statement but may choose not to do so.13 I agree. In this case, whatever the merits of the interviews as an investigative tool, the process surrounding the obtaining of the statements falls so short of meeting the requirement of reliability that I have exercised my discretion by deciding not to review the statements beyond the portions that were adduced in evidence. Contrary to the applicant"s submissions, I am not satisfied that the persons interviewed are, as was the child in Khan , declarants having "peculiar means of knowledge" of the events described in the statement.14 I understand "peculiar means of knowledge" as meaning something other than any person purporting to have direct knowledge of any event. In short, I have not been able to conclude that my review of the entire statements might change my negative assessment of their reliability. Accordingly, it is preferable, in the interests of enhancing the appearance of fairness, that I not consider further the contents of the statements.
[16] Counsel for the respondent, relying on the decision of my colleague Justice McKeown, in Canada (Minister of Citizenship and Immigration) v. Bogutin,15 argued that the applicant also failed to meet the test of necessity concerning the statements of these two deceased persons. In view of my conclusion on the issue of reliability, I need not decide whether the requirement of necessity has been met on the evidence in this case.
[17] Accordingly, the respondent"s objection to the introduction of the two signed statements of deceased persons on the ground that they constitute inadmissible hearsay evidence is maintained.
Judge
Ottawa, Ontario
August 4, 1998
__________________1 [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92.
4 [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590.
7 [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257.
8 Ibid., pp. 795-6 and 805 (S.C.R.).
9 (1992), 92 D.L.R. (4th) 1 (Ont. C.A.), aff"d [1994] 1 S.C.R. 701.
13 See, for example, R. v. Cunliffe (1977), 34 C.C.C. (2d) 287 (Ont. Prov. Ct.).
14 Supra, note 3. In Finta, supra, note 8, Cory J. referred to declarants possessed of "a peculiar or special means of knowledge" at p. 854 (S.C.R.).