Date: 19981023
Docket: T-938-95
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JOHANN DUECK
Respondent
REASONS FOR ORDER
NOËL J.
[1] These Reasons dispose of an objection made by Johann Dueck (the "respondent") to the admissibility of the evidence of William H. Kelly, a witness called by the applicant, on the grounds that it is irrelevant and based on hearsay.1
Background
[2] This proceeding is a reference to the Federal Court - Trial Division (the "Court") by the Minister of Citizenship and Immigration (the "applicant") to determine whether the respondent was admitted to Canada and obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances in that he failed to divulge to Canadian immigration and citizenship officials his membership in the Selidovka district (Raion) police in German occupied Ukraine between 1941 and 1943. Arising from this allegation are several factual issues to be decided by this Court. These include the questions of whether the respondent was a member of the Selidovka district police during the relevant period, what he was asked when applying to immigrate to Canada in 1948, what information he provided to Canadian officials at that time and whether divulging his alleged membership in the Selidovka police would have prevented his admission to Canada.
[3] The applicant alleges that at the time the respondent applied to immigrate to Canada persons who served with the enemy in any capacity, persons from German occupied countries known to have collaborated with the Nazi machine, and persons coming within the general category of "collaborators" were prohibited from coming to Canada. The applicant further alleges that when the respondent applied to come to Canada, he was subject to a security screening by visa control officers who were members of the Royal Canadian Mounted Police (the "R.C.M.P.") who would have asked him what he had done during the war. While there appears to be a dispute between the appellant and respondent with respect to the exact date the respondent was granted an immigrant visa,2 for the purposes of this interlocutory ruling it is sufficient that I find he was granted his visa in either June or July of 1948.
[4] The applicant called as a witness Mr. Kelly, the R.C.M.P. officer who was posted in London in 1951 to assume the function of officer in charge of visa control. The applicant seeks to introduce his evidence to prove whether and how security screening criteria were applied in 1948 when the respondent applied to enter Canada. Mr. Kelly had no work experience with respect to the security screening of immigrants before being posted in London in 1951.
Position of the Parties
[5] The respondent objected to the admissibility of Mr. Kelly"s evidence after the following question was posed by the applicant:
At the time you arrived in London in 1951, sir, how, generally, was the work of the visa control officers organized, that is in a paper shuffling sense? How did the system work?
[1] In the first instance, the respondent takes the position that Mr. Kelly"s evidence on the visa control process as it existed in 1951 is irrelevant. The respondent argues that on the basis of the evidence before the Court that significant changes were brought to the visa control policy between the time of the respondent"s admission to Canada in 1948 and the time when Mr. Kelly took up his position in London in 1951.3 It is argued that the relevance of the practice in 1951 in relation to what it was in 1948 has not been established.
[2] In addition, the respondent objects to the admissibility of any evidence that can be given by Mr. Kelly about the visa control process as it existed in 1948 on the basis that it is hearsay and as such inadmissible. Prior to the objection being raised, the witness testified that before taking up his post in London he reviewed the policy files available to him in Ottawa as well as correspondence between the R.C.M.P. and immigration officials with respect to the visa control process. Further, Mr. Kelly testified that once assigned he had occasion to discuss with his staff in London and throughout the visa stations in Europe the operation of the visa control process as it existed then and before his arrival in London. The respondent argues that this evidence does not fall within the principled exception to the hearsay rule set out in R v. Khan4 and R v. Smith,5 to the effect that the hearsay evidence must be both "necessary" and "reliable."
[3] According to the respondent, there is a "plethora" of documents which go to proof of the fact in issue. Further, the evidence of Mr. Kelly is not reliable since we do not know who he spoke to concerning the screening criteria applicable in 1948 or how many documents he read. The respondent also takes the view that the evidence of Mr. Kelly with respect to the documents created before his employment is opinion evidence and that he has not been qualified as an expert to testify on such matters.
[4] The applicant acknowledges that Mr. Kelly"s evidence with respect to the security screening criteria prior to 1951 would be hearsay, but argues that it would fall within the Khan/Smith exception. According to the applicant, accepting for the sake of argument the proposition of the respondent that the applicant cannot prove her case without the evidence of Mr. Kelly, this hearsay evidence meets the criteria of necessity. Further, in terms of reliability, the applicant argues that the people with whom Mr. Kelly spoke to gather information about the screening criteria had a duty to tell him the truth. Finally, the applicant stated that he expected that Mr. Kelly would make a "link" between his direct evidence on the security screening practice in 1951 and the prevailing practice in 1948 and that this should suffice to establish the relevance of his testimony.
Disposition
[5] This testimony is intended to establish by means of hearsay the screening criteria applicable to the respondent in June or July 1948 when he was granted his visa to enter into Canada. Abundant documentary evidence6 has been entered on this subject under section 30 of the Canada Evidence Act. Many of these documents are contemporaneous with or precede the time when the respondent obtained his visa and some of them purport to reflect the precise screening criteria which were being applied at the relevant time. Furthermore, Nicholas D"Ombrain, the applicant"s expert witness, testified extensively on these documents and the sense which they ought to be given. Nevertheless, it appears that no security officer who was in function in 1948 is available to testify.
[6] The applicant argued before me that the criterion of necessity would be met so long as it could be shown that the hearsay evidence was necessary to prove her case.7 That is not, however, necessity as it has been defined by the Supreme Court of Canada. In Smith, Lamer C.J.C. cautioned that:
| [the] criterion of necessity, (...), does not have the sense of "necessary to the prosecution"s case". If this were the case, uncorroborated hearsay evidence which satisfied the criterion of reliability would be admissible if uncorroborated, but might no longer be "necessary" to the prosecution"s case if corroborated by other independent evidence. Such an interpretation of the criterion of "necessity" would thus produce the illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated ... |
| ... |
| Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at "1421 the following categories: |
| (1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]. This is the commoner and more palpable reason ... |
| (2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources ... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.8 |
[7] Here, while I have extensive documentary evidence as to the screening criteria applied by Canadian security officers at the relevant time, it remains that no one with direct knowledge is available to testify. Arguably then, the criterion of necessity has been met.
[8] It has not been shown, however, that the hearsay evidence sought to be tendered meets the criterion of reliability. There is no evidence before the Court either as to whom the witness would have spoken to obtain his information about the situation prevailing in 1948, nor the particular circumstances of the people spoken to. The hearsay is made even less reliable by the fact that the witness would testify about what he learned in 1951 about the situation as it existed approximately three years earlier.
[9] As to the documents which the witness said he consulted prior to assuming his functions, these would by necessity predate his employment and any testimony on these documents would involve double hearsay. Furthermore, the Court has no evidence about which documents were consulted or the reliability of these documents. In addition, any insight which the witness could provide with respect to these documents would be opinion evidence which he is not qualified to give.
[10] Finally, the respondent"s objection based on relevance must also be upheld. The only basis upon which the security criteria applicable in 1951 can be shown to be relevant is if the witness can establish a link with the screening criteria as they applied in 1948. However, the witness cannot establish such a link otherwise than through the inadmissible hearsay. It follows that if the applicant wants to establish that the security criteria as they stood in 1951 are relevant, she will have to establish this relevance through some other means.
[11] In summary therefore, the hearsay evidence of Mr. Kelly as to what the screening criteria were in 1948 is inadmissible; the relevance of the 1951 screening criteria cannot be established through this witness; and the witness cannot give evidence about the documents which predate 1951 as it would be in the nature of opinion evidence.
[12] This disposes of the objection of the respondent.
Marc Noël
Judge
OTTAWA, Ontario
October 23, 1998
__________________
1 The objection was raised and argued in open Court on October 22, 1998, and the examination was suspended until the next day to allow for the disposition of the objection.
2 While the applicant alleges that the respondent received a visa or other travel document allowing him to immigrate to Canada on June 25, 1948, the respondent alleges that this document was issued on July 20, 1948.
3 Reference was made to the expert evidence of Nicholas D"Ombrain tendered on behalf of the applicant and, in particular, his testimony as to the impact on this policy of the decision to allow the immigration of German citizens in March of 1950.
4 [1990] 2 S.C.R. 531 [hereinafter Khan].
5 [1992] 2 S.C.R. 915 [hereinafter Smith].
7 In so stating, the applicant made it clear that she was not admitting that this hearsay evidence was necessary to prove her case. The statement was made because the respondent took it as a given in the course of his argument that the applicant could not succeed without this hearsay argument being admitted.