T-1700-96
B E T W E E N:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
WASILY (WASIL) BOGUTIN
Respondent
REASONS FOR RULING
MCKEOWN, J.:
The applicant, the Minister of Citizenship and Immigration, seeks to tender as evidence four signed statements by deceased persons and two signed statements by a person who is no longer mentally competent. The applicant is offering these six statements to prove the truth of the contents of the statements. The issues are whether the statements given have the necessary requirements of necessity and reliability as to permit their admission into evidence as an exception to the hearsay rule. A review of the facts is now set out.
FACTS
Members of the R.C.M.P. Special Investigations and War Crimes Unit attended in the Ukraine in 1993 to obtain statements from potential witnesses in these cases. The local Procurator ("Procurator") provided the Department of Justice with the names of potential witnesses. In the case of the three witnesses who were interviewed in February, 1993 and June, 1993, statements were taken pursuant to an investigation of an individual other than the respondent. As a result of these statements, the respondent was placed under investigation by the R.C.M.P. and further statements were taken in November, 1993.
In all cases, the witnesses gave their testimony in a language other than English and, accordingly, two interpreters were present each time a statement was taken. Since the circumstances under which each statement was taken were different, it will be necessary to review the facts surrounding the taking of each individual statement with more specificity.
In each instance, the witness was informed by the R.C.M.P. officer that the interview was voluntary, that the witness had nothing to fear and that the witness was not the person being investigated. It was explained that only persons who were living in Canada were being investigated. If the witness then agreed to be interviewed, in four cases, a caution was read to him by the officer. There were two occasions during the February, 1993 interviews that the caution does not appear to have been given. When the caution was given, it was not given in similar terms to each witness. However, in general terms, the caution provided that if the witness refused to testify, withheld information or provided false evidence, then the witness would be liable under the responsibilities of articles 178 and 179 of the criminal code of the Ukraine. In particular, in some instances, the caution did not include the words "refuse to testify" but rather was couched in terms such as "refusal or avoidance of bearing witness".
Illya Maslo
Illya Maslo was interviewed on two occasions by different R.C.M.P. officers. He was interviewed by Constable Marcil at the Procurator's office in the town of Selidovo, Ukraine on February 12, 1993. The interview commenced at 13:40 and concluded at 15:25. A representative from the Department of Justice Canada, Ms. Gertler, was present as well as two interpreters. No other police nor the Procurator were present at the interview. As was the case with all six statements currently at issue, the interview was not mechanically recorded.
Constable Marcil asked questions about events surrounding World War II. The questions were posed in English by the Constable, translated into Russian, answered by Mr. Maslo in Russian, and then translated back into English. Constable Marcil took notes in English as he did not speak either Russian or Ukrainian. While the oral translation transpired, the second translator transcribed the interview in Russian, so that it could be read and verified by Mr. Maslo later. Constable Marcil gave his notes to the translator in the evening to assist her in this endeavour. The Constable converted the answers of Mr. Maslo into a narrative form and did not generally include questions and answers.
Constable Marcil asked very specific questions to clarify what Mr. Maslo stated. The Constable testified that he may have asked the witness to confirm when a particular event occurred but that he would not change the year of an event that the witness stated. The officer did ask questions of what Mr. Maslo recalled about witnessing beatings and shootings. He asked about the victims and perpetrators but did not submit a name to the witness unless the witness mentioned the name first. Then, at the end of the interview, Constable Marcil asked Mr. Maslo if he knew of certain persons whose names had not come up.
Constable Marcil did not use a prepared list of questions. The questions came to him spontaneously as the interview proceeded. Some of his questions were repeated in more than one interview but he did not have a set of standard questions. He took notes in narrative form and this resulted in five very neatly handwritten pages. Constable Marcil stated that it took a long time to conduct the interview because of the translation and the transcription which he said was almost a verbatim account of what was said. He specifically denied that the interview took so long because he asked the same questions repeatedly until he got the answers that he wanted.
Mr. Maslo was 91 years old at the time of the interview and was asked to recollect events from 52 years in his past. Constable Marcil testified that Mr. Maslo had a very good memory of the situation during the German invasion and that it was his impression that Mr. Maslo only spoke about what he saw himself. The officer told Mr. Maslo and his other witnesses that the evidence must be drawn from their own experiences. The Constable indicated that if matters were referred to as rumours that he would write the evidence down as a rumour and not as actual direct evidence. There is no record of any "rumour" in the statements taken by Constable Marcil. However, the statement does mention that Mr. Maslo "heard" about certain events from others but that he did not actually see them himself. There was no record kept of the introductory part of Mr. Maslo's interview nor of the caution administered.
The morning after the interview took place, Constable Marcil, Ms. Gertler and the two interpreters went to Mr. Maslo's home. The translated statement was read to Mr. Maslo and he was told that he could make any changes that he wanted. The Constable asked one more question of Mr. Maslo and this question and answer were added to the bottom of the last page of the translation. After the statement was read to him in Russian, Mr. Maslo signed the statement.
Constable Marcil said that Mr. Maslo was a fine witness. Although he was much older than Mr. Lykov, a witness whom Constable Marcil interviewed later, Mr. Maslo appeared to be in better health. His mental health was very good as well. Constable Marcil stated that Mr. Maslo was cooperative and answered the questions without hesitation.
The second interview of Mr. Maslo was conducted by Corporal Fnukal of the R.C.M.P. The interview commenced at 15:13 and concluded at 18:15. It took place in the kitchen of Mr. Maslo's Selidovo home. There were no Ukrainian officials present. The interview was interrupted once when a man came to repair Mr. Maslo's television set.
Corporal Fnukal testified that Mr. Maslo was very willing to speak. He was 91 years old but his physical condition was still quite good. He could walk and sit but was a little slow to move around. He wore glasses. The officer stated that Mr. Maslo answered the questions without hesitation.
Corporal Fnukal had a list of prepared questions with him and he took cursory notes to assist himself in the formulation of further questions. Mr. Maslo spoke Russian during the interview and a prepared Russian form with the caution was used. The caution was read, understood and signed by Mr. Maslo.
At the beginning of the interview, Corporal Fnukal reviewed Mr. Maslo's February 12, 1993 statement with him. He then proceeded to ask questions. Corporal Fnukal stated that his questions were not accusatory but were intended to help the witness focus on the right time and place. Corporal Fnukal said that the questions may have implied certain things. Some questions on his prepared question sheet were crossed out because he did not feel comfortable pursuing those lines of questioning. Mr. Maslo looked at a photo line-up which included a photograph of the respondent and did not recognize anyone in it.
At the end of the interview, the statement taken that day was read to Mr. Maslo. He was given the opportunity to change anything that he wanted. Mr. Maslo agreed with the statement and he signed the bottom of each page. They left the residence at 18:20.
Aleksei Sapach
Aleksei Sapach was also interviewed twice by the R.C.M.P. The first occasion was on June 9, 1993 and the interview was conducted by Constable Fradette. Present at the interview with Constable Fradette were Ms. Gertler and two translators from Kiev. They drove in a van to Mr. Sapach's house in Selidovo along with an "ex-militia man" and a driver - neither of whom was present during any of the questioning. The party arrived at the residence at about 11:20 and Mr. Sapach was asked some pre-screening questions in the van to find out if he knew anything which would assist the investigation. He did have information and so he was asked if he would volunteer to go to the Selidovo Procurator's office for an interview. Mr. Sapach agreed. A few notes were made at the time of the screening but there is no other record.
Mr. Sapach drove to the Procurator's office with Constable Fradette and his party. Constable Fradette told Mr. Sapach that the interview was completely voluntary. He explained why he and his colleagues were in Selidovo and why they were asking questions. Mr. Sapach was told that he was free to answer or not to answer the questions put to him. The interview lasted from 11:55 to 13:58. No local police nor the Procurator were present during the interview. Constable Fradette had brought a list of questions with him. The prepared Russian version of the statement had a warning on the first page which the translator read to Mr. Sapach. The only warning given to Mr. Sapach was given at the Procurator's office. Constable Fradette admitted that he was not sure of the contents of the Ukrainian Criminal Code sections cited in the warning.
The interview proceeded with Constable Fradette asking questions which were translated into Russian. Mr. Sapach's answers were translated into English. The translator who wrote the questions and answers in Russian was told to transcribe them exactly. Constable Fradette made a few notes during the interview to help him with the questioning as he did not adhere strictly to his prepared questions.
At the end of the interview, the party had to go back to Mr. Sapach's residence so that Mr. Sapach could get his glasses. The statement was signed and the photo line-up was viewed. The statement which the translator had written was read back to Mr. Sapach who was told that he could make any changes that he wanted. Mr. Sapach agreed with the statement and signed each page.
Constable Fradette stated that Mr. Sapach appeared to be in good mental health, appeared to understand the questions, and answered the questions without hesitation except when he paused to think about the events which were far in the past. Mr. Sapach's physical condition was not as good as his mental condition. He was diabetic and was on medication to treat it, he had suffered a heart attack, his leg had been wounded in the war and he had liver problems. He was, however, able to get around by himself.
Mr. Sapach was interviewed for the second time on November 24, 1993 at his home in Selidovo. The interview was arranged through the Selidovo Procurator's office. This interview was conducted by Corporal Fnukal. Corporal Fnukal, Ms. Gertler and two interpreters went to Mr. Sapach's house at 8:35 a.m. and finished the interview by 11:45 a.m. No Ukrainian officials were present. Mr. Sapach was asked whether he preferred Ukrainian or Russian. He chose Russian and so the Russian pre-printed form was used. Corporal Fnukal posed the questions in English, the questions were translated into Russian, Mr. Sapach answered in Russian, and his answers were translated into English.
Corporal Fnukal began the interview by asking questions about Mr. Sapach's June 9, 1993 statement. The Corporal then continued with other questions. In the statement, there were three pages of description by Mr. Sapach of Mr. Bogutin. Corporal Fnukal stated that this description was not hearsay.
Corporal Fnukal testified that Mr. Sapach was co-operative. He was read the warning in Russian and he signed it. Each page was initialed at the bottom by the translator and Corporal Fnukal, and signed at the bottom by Mr. Sapach. The three of them signed the last page of the statement. No amendments were made to the statement.
Corporal Fnukal found Mr. Sapach to be in good mental condition. He appeared to understand the questions. His physical health was not as good as his mental health. He was diabetic, had suffered a heart attack twelve years previous to the interview and was an invalid of the second degree due to wounds received in the War. He was on herbal medication for his diabetes but was on no other medication.
Mr. Lykov
Mr. Lykov was interviewed twice by the R.C.M.P. He had been interviewed and had given statements to authorities in the former Soviet Union on at least eleven occasions. The applicant did not seek to introduce any such statements.
On February 15, 1993, Mr. Lykov was interviewed by Constable Marcil who was accompanied by Ms. Gertler and the two translators. Mr. Lykov was interviewed in Russian at the Procurator's office in Kirovograd. The interview began at 10:15 and continued until 13:56. No one was in the room other than Constable Marcil's party and the witness. At the beginning of the interview, Constable Marcil and his companions introduced themselves. Mr. Lykov was told that he had nothing to fear as he was not under investigation.
Constable Marcil did not use a prepared list of questions. He asked questions in English, the questions were translated into Russian, Mr. Lykov answered in Russian and the answers were translated into English. Constable Marcil took notes in the form of a narrative. The Constable had drawn a diagram as part of the interview in order to get a better idea of the lay-out of the area that the witness was describing.
Constable Marcil stated that he put the questions in time and place for Mr. Lykov because the events occurred fifty years before the interviews were conducted. The Constable did not want to go beyond the scope of what was being investigated. However, he stated that he did not lead the witness to particular events and would not correct the witness.
Constable Marcil asked questions to clarify what Mr. Lykov stated. Some very specific questions were asked of Mr. Lykov such as whether he recalled witnessing beatings or shootings. Constable Marcil asked who was involved in these activities but he stated that he did not suggest names to the witness. Then, at the end of the interview, Constable Marcil submitted names to Mr. Lykov of people who were not mentioned prior to this. Constable Marcil stated that if Mr. Lykov spoke of something that was rumoured, then this was recorded in the statement as a rumour. However, there is no mention of any "rumour" in Mr. Lykov's statement although Constable Marcil does record that Mr. Lykov "heard" something about a person who was being investigated.
The notes were translated at the time they were made because the statement was read to Mr. Lykov, in Russian, at the conclusion of his interview. He was given the opportunity to make changes. No changes were requested and the statement was signed by the translator, Mr. Lykov and Constable Marcil.
Mr. Lykov told Constable Marcil that he had heart problems, injuries from the war and that he was not in good health. Constable Marcil testified that Mr. Lykov was co-operative, participated openly and answered all the questions put to him. He looked a little frail and physically weak but was mentally well and understood the questions. I note, however, that in both statements taken, some of Mr. Lykov's answers were confusing.
On November 15, 1993, Mr. Lykov was interviewed for a second time. This interview was conducted by Corporal Fnukal. Corporal Fnukal testified in great detail with the assistance of his notes that the interview was conducted in Mr. Lykov's home in the bedroom/livingroom area. However, the witness statement of Mr. Lykov taken by Corporal Fnukal indicates on the front page that it was taken at the Procurator's office in Kirovograd.
Corporal Fnukal, Ms. Gertler and the two translators were present at the interview. No local police nor the Procurator were present. At 12:10 the introductions were made and the caution was given. Mr. Lykov signed under the caution to indicate that he understood its meaning. He was offered his choice of language in which the interview would be conducted. As opposed to his use of Russian during his first interview, Mr. Lykov this time chose to give his statement in Ukrainian. The interview began at 12:20 and was concluded at 16:30.
Corporal Fnukal did have a prepared list of questions. He also took notes but these were not a verbatim account of the interview. The notes were merely to assist him with the interview. Corporal Fnukal posed his questions in English and these were translated for Mr. Lykov who answered the questions in Ukrainian. The answers was translated into English. At the same time, the other translator wrote the statement in Ukrainian while Corporal Fnukal made his own notes based on the questions and answers.
Mr. Lykov was first shown the June statement which he had given and he was encouraged to read it. He grew tired of reading the statement and refused to finish reading it. At this point, the translator read it to him. He was then asked questions about the statement. Mr. Lykov had to leave the room fourteen times to go to the washroom as he had a cold which caused a bladder problem. He also had pain down his legs from his back and was supposed to receive injections for twenty-one days for that problem. However, he had only received five injections. Corporal Fnukal testified that his mental condition appeared to be good and that he understood what was asked of him and answered the questions concisely. However, I note that the written answers are often not concise. Corporal Fnukal stated that Mr. Lykov was co-operative.
Ms. Gertler did not usually ask questions during the interviews but would occasionally slip a piece of paper with a question on it to Corporal Fnukal. At times, she was given the chance to talk to a witness. Corporal Fnukal stated that all the questions and answers are reflected in the transcript. If Ms. Gertler had a question, she would sometimes pose it out loud to Corporal Fnukal and he would ask the witness the question. This did not interrupt the flow of the interview and did not become confusing as only one person spoke at a time. It was rare that more than one person spoke as this was not desirable. The fourteen interruptions when Mr. Lykov had to go to the bathroom obviously could not be helped.
At one point, Corporal Fnukal asked if Mr. Lykov would be able to recognize the respondent from a line-up of photographs. Mr. Lykov responded, "Yes, if I am shown a photograph". However, he did not recognize anyone in the photographs when he was shown the line-up.
Corporal Fnukal believed that the driver and the translators used in the Ukraine were engaged privately and were not hired through the Ukrainian government. Sometimes a local police officer would bring the party to the witness's house. Corporal Fnukal does not remember whether this was the case with Mr. Lykov.
At the end of the interview, the Ukrainian statement was read back to Mr. Lykov who was told that he could make any changes that he wanted. Mr. Lykov signed the statement without amendment and the translator and Corporal Fnukal initialed it.
ANALYSIS
The relevant law on this issue has been dealt with by the Supreme Court of Canada in R. v. Khan, [1990] 2 S.C.R. 531, and R. v. Smith, [1992] 2 S.C.R. 915 where the Court invoked the "principled approach" to admission of hearsay evidence. In Khan, McLachlin, J. stated at 540 that she was "satisfied that applying the traditional tests for spontaneous declarations, the trial judge correctly rejected the mother's statement". She stated that the statement was not contemporary nor was it made under the pressure or emotional intensity which would give it the guarantees of reliability upon which the spontaneous declaration rule has traditionally rested. In my view, the six statements in the case at bar also do not fall within the spontaneous declaration rule for the foregoing reasons set out by McLachlin, J. At page 540 she went on to say:
| The question then is the extent to which, if at all, the strictures of the hearsay rule should be relaxed in the case of children's testimony. |
McLachlin, J. further stated, at page 540:
| The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions. |
At page 541, she adopted the statement of Lord Pearce dissenting in Myers v. Director of Public Prosecutions, [1965] A.C. 1001 at 1040-41 where Lord Pearce sets out the four tests which underline all the exceptions:
. . .
| In the first place the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to be one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases. |
McLachlin, J. went on at page 542 to summarize Lord Pearce's four tests into two general requirements:
| Lord Pearce's four tests may be resumed in two general requirements: necessity and reliability. The child's statement to the mother in this case meets both these general requirements as well as the more specific tests. Necessity was present, other evidence of the event, as the trial judge found, being inadmissible. The situation was one where, to borrow Lord Pearce's phrase, it was difficult to obtain other evidence. |
Necessity
In Smith, supra, Lamer, C.J.C. quotes from Wigmore on Evidence (2nd ed. 1923), vol. III where Wigmore addresses necessity at pages 933 and 934:
| The criterion of necessity must be given a flexible definition... |
| ... |
| 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. |
Lamer, C.J.C. states on page 934 that: "Clearly, the categories of necessity are not closed". He refers to the Khan case and then to the facts in the Smith case. He concludes at page 937 by saying:
| In my opinion, hearsay evidence of statements made by persons who are not available to give evidence at trial ought generally to be admissible, where the circumstances under which the statements were made satisfy the criteria of necessity and reliability set out in Khan, and subject to the residual discretion of the trial judge to exclude the evidence when its probative value is slight and undue prejudice might result to the accused. |
Etienne v. McKellar General Hospital (1995), 38 C.P.C. (3d) 342 (Ont. Gen. Div.) was a medical malpractice suit. Platana, J. determined that the expert reports of two doctors, who were not available at the trial, were inadmissible because they were not necessary. Two of the determining factors in that case were whether the witnesses were unavailable suddenly and unexpectedly in relation to the trial date, and whether the reports were prepared by the main treating specialist who made personal observations known only to him at the time.
Platana, J. concluded that one doctor's ill-health had been known for some time before the hearing of the trial and that it was clear that the plaintiff had an opportunity to get other expert reports after that date. The judge went on to discuss the time-frame at page 348:
| With respect to time being crucial, the time-frame of this action can appropriately be stated to have commenced in November of 1985 and continued until the amputation of the foot in 1989. As I noted above, Doctor Banerjee's report was prepared in 1992, and Doctor Carroll's in 1993, more than six years after the surgery giving rise to this action. In my view, it cannot be said that these reports were therefore prepared at a crucial time nor could the plaintiff's condition have changed subsequent to the actual amputation of the foot in 1989. |
Platana, J. concludes on page 349:
| I am satisfied in reviewing all of the above that the test of necessity cannot be met in these circumstances. There is greater prejudice to the defendant if I allow these reports to be filed without the ability to cross-examine than any prejudice to the plaintiff by not allowing the reports to be filed. |
In light of the age and health of the witnesses at bar at the time of the interviews, it cannot be said that the deaths of two of the witnesses and the mental competence of the third witness were sudden and unexpected. With respect to the second factor referred to by Platana, J., I had the opportunity of hearing nine witnesses in the Ukraine who testified as to certain events which took place in Selidovo during the German occupation. These witnesses, who were subject to cross-examination, did not always agree on the details of the events. The three witnesses who gave the statements at issue referred to the same events and again differed on the details.
Since nine witnesses have testified to the events in Selidovo during the German occupation, I am of the view that it was not difficult to obtain other evidence. The six statements were given fifty years after the events took place in Selidovo unlike the statements in Khan which were made shortly after the event. It is not reasonably necessary to introduce these six statements in light of the foregoing. In my view, the evidence does not meet the requirement of necessity as set out by Lord Pearce and the Supreme Court of Canada.
Reliability
Lord Pearce's last three requirements which underline all hearsay exceptions were that: the declarant must be disinterested; the declaration must be made before litigation arose; and the declarant must have had peculiar means of knowledge not possessed in ordinary cases. Bearing these requirements in mind, McLachlin, J. continued at page 542 of Khan:
| 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. |
In the hearing at bar, the first statement by each of the three witnesses was made in connection with an investigation unrelated to the respondent. The second statement by each of the three witnesses was made after there was a suggestion of litigation. The witnesses were aware that these people were being investigated for a reason. I must take this into account. These six statements are not spontaneous declarations by witnesses immediately after the events. These are statements made some fifty years after the events took place.
Mr. Marc Rosenberg (as he then was) wrote aptly in his article B. (K.G.)- Necessity and Reliability (1993), 19 C.R. (4th) 69 at 79 that:
| In considering whether or not a particular statement is reliable it is helpful to consider the four dangers which attach to hearsay, namely, mistakes as to perception, false memory, inability to communicate, and lack of sincerity. [...] Cross-examination can ferret out the true source of the information. |
The six statements include some obvious hearsay and I am not satisfied that cross-examination of the witnesses would not have disclosed further hearsay. Considering that the elderly witnesses were recalling events from more than fifty years in their pasts, it is very possible that false memories have crept into their statements. I also note that the Minister's counsel conceded that the obvious hearsay within the six statements should be deleted. However, that deletion would not cure the probability of further hearsay being discovered by way of cross-examination. It is a rare situation where the hearsay rule should be excepted and the defendant be denied the chance to cross-examine the witness.
At page 929 of Smith, Lamer, C.J.C. quotes again from Wigmore, supra, where Wigmore points out the theory of the hearsay rule:
| [T]he many possible sources of inaccuracy and untrustworthiness which may lie underneath the bare untested assertion of a witness can best be brought to light and exposed, if it exists by the test of cross-examination. |
However, Lamer, C.J.C. points out at page 929 that one must look more closely at the considerations of "a Circumstantial Guarantee of Trustworthiness, and a Necessity, for the evidence". At page 930, Lamer, C.J.C. goes on to point out that the circumstantial guarantee of trustworthiness "...does not require that reliability be established with absolute certainty".
According to Wigmore, (quoted with approval at page 930 of Smith) while it was not possible to generalize the cases in which other circumstances will provide a functional substitute for testing by cross-examination, certain broad categories could be identified:
| "1422 ... Though no judicial generalizations have been made, there is ample authority in judicial utterances for naming the following different classes of reasons underlying the exceptions: |
| a. Where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed; |
| b. Where, even though a desire to falsify might present itself, other considerations such as the danger of easy detection or fear of punishment would probably counteract its force; |
| c. Where the statement was made under such conditions of publicity that an error, if it occurred, would probably been detected and corrected. |
R. v. K.G.B. (1993), 19 C.R. (4th) 1 (S.C.C.) was a case involving the admissibility of prior inconsistent statements. In my view, it is not of much assistance in the hearing at bar because much of the reasoning is based on having an opportunity to cross-examine the witnesses respecting the statements. Since two of the witnesses are deceased and the other is mentally incompetent, there is no opportunity for cross-examination.
However, Lamer, C.J.C. did say in the alternative in K.G.B. that:
| ...other circumstantial guarantees of reliability may suffice to render such statements substantively admissible, provided that the trial judge is satisfied that the circumstances provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires. |
Although, in the present case, the lack of necessity is sufficient to make the statements inadmissible, there were also some problems with the reliability of the statements taken from the three witnesses. Although the three R.C.M.P. witnesses were generally credible, taking into consideration their total testimony, I cannot find that the statements were verbatim transcripts of the interviews in their entirety. In one or two places, the officers testified that everything was taken down verbatim, but they admitted in other parts of their testimony that all the questions and answers were not written down. Further, no recordings or video statements were made. None of the witnesses could identify the respondent from a photograph although only one witness thought that he could make such identification.
The respondent also demonstrated that there were some difficulties with the translation and transcription of the statements. For instance, there were words crossed out of and added to all of the statements. In at least one statement, words were crossed out of the original and rendered illegible. One witness alleged that he saw something which none of the other witnesses testified to seeing. However, in the case of this one witness, he contradicts himself within the statement as to his viewing location. I also must also take into account that the local communist officials in the former U.S.S.R. were involved with the contacting and locating of the witnesses in "Nazi War Crime Cases" including at least one of the witnesses who gave two of the statements at issue. This may have affected the responses of the witnesses.
In addition to the foregoing problems relating to necessity and reliability, applying the factors set out by Lamer, C.J.C. in K.G.B., there were also questions raised in the present case about whether the caution (administered for the same purpose as would be an oath or affirmation) was even read to and acknowledged by the witnesses in some of the earlier interviews. The R.C.M.P. officers testified that potential witnesses were always asked if they were prepared to give a statement before commencing the formal part of the interview. However, the caution, read to two of the witnesses in their second statement, included a warning that to "refuse to testify" was an offence under the criminal code of the Ukraine. In two other statements, the words "refusal or avoidance of bearing witness" were used. Accordingly, I am concerned that the witnesses may have felt that they had no alternative but to subject themselves to an interview. In light of all of the foregoing, I am not satisfied that the circumstances of the six statements provide adequate assurances of reliability in place of those which the hearsay rule traditionally requires.
Conclusion
The four signed statements by deceased persons and two signed statements by a person who is no longer mentally competent are not admissible. The statements given do not meet the necessary requirements of necessity and reliability to permit their admission into evidence as an exception to the hearsay rule.
| "William P. McKeown" |
| Judge |
| Toronto, Ontario |
| October 3, 1997 |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1700-96
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
WASILY (WASIL) BOGUTIN
DATE OF HEARING: MAY 12-15, 1997
SEPTEMBER 4 - OCTOBER 3, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR RULING BY: MCKEOWN, J.
DATED: OCTOBER 3, 1997
APPEARANCES:
Mr. Christopher Amerasinghe, Q.C.
Ms. Kathryn Hucal
For the Applicant
Mr. Orest H.T. Rudzik
Mr. Nestor I.L. Woychyshyn
For the Respondent
SOLICITORS OF RECORD:
Orest H.T. Rudzik
212-2323 Bloor Street West
Toronto, Ontario
M6S 4W1
Nestor I.L. Woychyshyn
301-2259 Bloor Street West
Toronto, Ontario
M6S 1N8
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: T-1700-96
Between:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
WASILY (WASIL) BOGUTIN
Respondent
REASONS FOR RULING