Canada (Minister of Citizenship and Immigration) v. Fast

Canada (Minister of Citizenship and Immigration) v. Fast
Court (s) Database
Federal Court Decisions
Date
2003-10-03
Neutral citation
2003 FC 1139
File numbers
T-453-00
Decision Content
Date: 20031003
Docket: T-453-00
Citation: 2003 FC 1139
OTTAWA, ONTARIO, THIS 3rd DAY OF OCTOBER 2003
Present: THE HONOURABLE MR. JUSTICE DENIS PELLETIER
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
JACOB FAST
Defendant
FINDINGS OF THE COURT AND REASONS
[1] On September 24, 1999, the Minister of Citizenship and Immigration wrote to Mr. Jacob Fast (Mr. Fast), a Canadian citizen since 1954, to tell him that she intended to ask the Federal Cabinet to revoke his citizenship because he had obtained it by lying about or concealing his German citizenship and his wartime association with Nazi police organizations. Mr. Fast exercised his right to ask that the matter be sent to the Federal Court of Canada for a decision as to whether he "obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances". The matter was then referred to the Federal Court of Canada by the issuance of a Statement of Claim. As a result, hearings were conducted both in Canada and in Zaporozhye, Ukraine, and evidence heard as to Mr. Fast, his wartime activities, and his citizenship. Evidence was also heard as to the procedures in place when Mr. Fast immigrated to Canada.
[2] Given the length of these reasons, some comment on the manner of proceeding will assist the reader. The first matter to be dealt with is a series of preliminary questions relating to the formalities of the inquiry. Who has the burden of proof, and to what standard? Are the terms of the inquiry determined by the Minister's Notice or by the Statement of Claim filed by the Minister? What is the evidentiary status of the various documents to which reference was made in the course of the inquiry?
[3] Once the preliminary questions are resolved, the next step is to determine if the defendant Jacob Fast is the person who appears in the historical record. The documents produced by the Minister disclose the existence of a Jakob Fast who lived in Zaporozhye, Ukraine, in the early 1940's. They also refer to a Jakob Fast who became a naturalized German citizen in 1944. The first task is to determine if either or both of those individuals is the Jacob Fast who became a Canadian citizen in 1954. If neither of those individuals is shown to be the defendant Jacob Fast, there is no need to go any further.
[4] If it is shown that Jacob Fast is indeed the person who lived in Zaporozhye in 1941, then the next task is to decide what Mr. Fast did during the Nazi occupation of Zaporozhye. In the same way, it is necessary to decide if Mr. Fast became a German citizen in 1944. If it is not shown that Mr. Fast did the things which he is alleged to have misrepresented or knowingly concealed, then no further inquiry is required.
[5] If Mr. Fast is shown to have had some connection with the Nazi forces occupying Zaporozhye, or to have become a naturalized German citizen, the next question is whether he falsely represented or knowingly concealed those matters. This requires an inquiry into the immigration and security procedures in place at the time that Mr. Fast immigrated to Canada. If no misrepresentation or material omission is shown, then it will be the end of the inquiry.
[6] If it is shown that Mr. Fast misrepresented or omitted to disclose his wartime activities or his German citizenship, then the issue of the government's authority to exclude someone from Canada on the basis of concerns about security must be examined.
[7] Having gone through the process I have just described, I have concluded that the defendant Jacob Fast lived in Zaporozhye, Ukraine from 1941 to 1943, and became a German citizen in 1944. The evidence persuades me that the defendant Jacob Fast was associated in some capacity with the political section of the indigenous auxiliary police in Zaporozhye during the Nazi occupation of that city, but I am unable to conclude that he was a policeman or the head of the political section as alleged by the Minister.
[8] I am satisfied that Mr. Fast was not interviewed by a security officer as part of the process by which he was accepted for immigration to Canada. I am also satisfied that Mr. Fast was interviewed by two immigration officers, each of whom asked him about his citizenship. But because Mr. Fast prima facie had dual citizenship, his assertion that he was a Russian (or Soviet) citizen was not a false representation. However, I find that Mr. Fast knowingly concealed his German citizenship by allowing an incomplete answer to stand as a complete answer as to his citizenship, knowing that his German citizenship was material to his admission to Canada.
LEGISLATIVE PROVISIONS
[9] The relevant provisions of the Citizenship Act, R.S.C. 1985, c. C-29, are the following:
10. (1) Subject to section 18 but notwithstanding any other section of this Act, where the Governor in Council, on a report from the Minister, is satisfied that any person has obtained, retained, renounced or resumed citizenship under this Act by false representation or fraud or by knowingly concealing material circumstances,
(a) the person ceases to be a citizen, or
(b) the renunciation of citizenship by the person shall be deemed to have had no effect,
as of such date as may be fixed by order of the Governor in Council with respect thereto.
(2) A person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.
. . .
18. (1) The Minister shall not make a report under section 10 unless the Minister has given notice of his intention to do so to the person in respect of whom the report is to be made and
(a) that person does not, within thirty days after the day on which the notice is sent, request that the Minister refer the case to the Court; or
(b) that person does so request and the Court decides that the person has obtained, retained, renounced or resumed citizenship by false representation or fraud or by knowingly concealing material circumstances.
(2) The notice referred to in subsection (1) shall state that the person in respect of whom the report is to be made may, within thirty days after the day on which the notice is sent to him, request that the Minister refer the case to the Court, and such notice is sufficient if it is sent by registered mail to the person at his latest known address.
(3) A decision of the Court made under subsection (1) is final and, notwithstanding any other Act of Parliament, no appeal lies therefrom.
10. (1) Sous réserve du seul article 18, le gouverneur en conseil peut, lorsqu'il est convaincu, sur rapport du ministre, que l'acquisition, la conservation ou la répudiation de la citoyenneté, ou la réintégration dans celle-ci, est intervenue sous le régime de la présente loi par fraude ou au moyen d'une fausse déclaration ou de la dissimulation intentionnelle de faits essentiels, prendre un décret aux termes duquel l'intéressé, à compter de la date qui y est fixée_:
a) soit perd sa citoyenneté;
b) soit est réputé ne pas avoir répudié sa citoyenneté.
(2) Est réputée avoir acquis la citoyenneté par fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels la personne qui l'a acquise à raison d'une admission légale au Canada à titre de résident permanent obtenue par l'un de ces trois moyens.
[ . . . ]
18. (1) Le ministre ne peut procéder à l'établissement du rapport mentionné à l'article 10 sans avoir auparavant avisé l'intéressé de son intention en ce sens et sans que l'une ou l'autre des conditions suivantes ne se soit réalisée_:
a) l'intéressé n'a pas, dans les trente jours suivant la date d'expédition de l'avis, demandé le renvoi de l'affaire devant la Cour;
b) la Cour, saisie de l'affaire, a décidé qu'il y avait eu fraude, fausse déclaration ou dissimulation intentionnelle de faits essentiels.
(2) L'avis prévu au paragraphe (1) doit spécifier la faculté qu'a l'intéressé, dans les trente jours suivant sa date d'expédition, de demander au ministre le renvoi de l'affaire devant la Cour. La communication de l'avis peut se faire par courrier recommandé envoyé à la dernière adresse connue de l'intéressé.
(3) La décision de la Cour visée au paragraphe (1) est définitive et, par dérogation à toute autre loi fédérale, non susceptible d'appel.
PRELIMINARY ISSUES
Relationship of the Minister's Notice to the Statement of Claim
[10] The Minister's Notice says:
TAKE NOTICE that the Minister of Citizenship and Immigration intends to make to the Governor in Council a report within the meaning of sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. C-29, as amended, on the grounds that:
1) 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 in 1947 you failed to divulge to Canadian officials responsible for selecting applicants wishing to come to Canada and all other immigration officials:
- That you were a German Citizen and therefore an Enemy Alien and inadmissible to Canada; and/or
2) 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, in 1947, you failed to divulge to Canadian officials responsible for selecting applicants wishing to come to Canada your activities during the Second World War, including:
- Your collaboration with German occupation authorities in Ukraine;
- Your association with the German sponsored indigenous auxiliary police forces of Zaporozhye;
-Your association with the German Security Police and Security Service (Sicherheitspolizei und SD);
Or
- Other wartime activities in which you were involved and which would have rendered you inadmissible to Canada at the time of your coming to Canada;
SOYEZ AVISÉ que la Ministre de la citoyenneté et de l'immigration entend faire rapport au Gouveneur en conseil aux termes des articles 10 et 18 de la Loi sur la Citoyenneté, L.RC. (1985), ch. C-29, modifiée, au motif que :
1) vous avez été admis au Canada avec droit d'établissement en résidence permanente et avez acquis la citoyenneté canadienne par fausse déclaration, fraude ou dissimulation intentionnelle de faits essentiels, ayant en 1947 omis de révéler aux autorités canadiennes chargées de la sélection des demandeurs désireux d'immigrer au Canada et aux autorités de l'immigration que :
- Vous étiez un citoyen allemand et, en conséquence, une personne inadmissible au Canada ; et/ou
2) vous avez eté admis au Canada avec droit d'établissement en résidence permanente et avez acquis la citoyenneté canadienne par fausse déclaration, fraude ou dissimulation intentionnelle de faits essentiels, ayant en 1947 omis de révéler aux autorités canadiennes chargées de la sélection des demandeurs désireux d'immigrer au Canada vos activités au cours de la Seconde guerre mondiale, notamment:- Votre collaboration avec les autorités d'occupation allemandes de ce qui constitue maintenant l'Ukraine ;
- Vos liens avec le service de police auxiliaire autochtone organisé par les Allemands dans la ville de Zaporozhye ;
- Votre association avec la Police de Sécurité et le Service de la Sécurité (Sicherheitspolizei und SD) allemands ; ou
- Autres activités auxquelles vous avez été mêlé et qui vous rendaient inadmissible et vous interdisaient l'entrée au Canada au moment où vous êtes entré.
[11] The Statement of Claim is much more detailed and provides particulars of Mr. Fast's wartime activities as well as the details of his application for Canadian citizenship in 1953. It also contains many paragraphs setting out the history of the Nazi occupation of Eastern Europe as well as the details of the structure of various Nazi organizations, the military and civil administration of the occupied territories, and the structure of the indigenous auxiliary police. It also recites the procedures in place for the screening and processing of immigrants to Canada in the immediate post war period.
[12] Insofar as Mr. Fast is concerned, the material allegations are the following:
. . .
2. The Defendant, Jacob Fast, was born on June 23, 1910 in one of the Mennonite communities in the Dnepr Bend, on the Dnepr River, next to the city of Zaporozhye (known in German as "Saporoshje"), located 80 kilometers south of Dnepropetrovsk in present-day Ukraine.
3. The wartime activities of Jacob Fast mainly took place in the area around Zaporozhye. Today, a city of nearly 900,000 inhabitants, Zaporozhye was, at the time of the German occupation, a city of about 350,000 inhabitants.
4 . From October 1941 until 1944, Jacob Fast was associated with the German Security Police and SD ("German Sipo/SD"), an organization known to have carried out mass murders of hundreds of thousands of civilians in the territories occupied by Germany as a part of the Nazi program to exterminate political and racial undesirables.
5 . From 1941 until 1944, Jacob Fast was a member of, headed, or was associated with, a department of the indigenous auxiliary police unit in the city of Zaporozhye (known as "Political Police", "Political Department", or even simply "SD" by the locals). This department was involved in the enforcement of the policies of the German Sipo/SD in the area of Zaporozhye.
6 . On January 21, 1944, Jacob Fast became a German citizen.
7 . Jacob Fast arrived in Canada on July 31, 1947, accompanied by his wife and children. They were landed in Canada on the same date.
8. Jacob Fast applied for Canadian citizenship on September 15, 1953 in St. Catharines, Ontario. He became a Canadian citizen on June 28, 1954.
. . .
22. Local ethnic Germans, although not able to become members of the German Sipo/SD, could become associated with the Sipo/SD and assist the EGs, EKs, and KdS carry out their tasks in the area.
23. From October 1941 until 1944, Jacob Fast was associated with and/or worked for the German Sipo/SD.
. . .
32. The Political Police was responsible under the German occupation for the arrest, torture, mistreatment, imprisonment and ultimately the deportation of prisoners to concentration camps in Poland and Germany.
33. The prisoners of the Political Police were detained in inhuman conditions and submitted to sessions of torture and interrogations. An unknown number were executed.
34. The Political Police, as Auxiliary of the Sipo/SD, was responsible for the enforcement of the policies of the German Sipo/SD with respect to the persecution and execution of Jews, Communists and other perceived enemies of the Third Reich.
35. The Auxiliary Police in Zaporozhye, including the Political Police, participated in the rounding up and the execution of the Jewish population of the city of Zaporozhye.
36. Jacob Fast headed and/or was a member of and/or was associated with the Political Police in Zaporozhye in the period when the department was involved in the above mentioned activities.
37. Jacob Fast was personally responsible for the arrest and mistreatment of prisoners, some of whom were later deported to concentration camps.
. . .
39. Jacob Fast left Zaporozhye at the beginning of October 1943. After a short stay in the city of Nikopol, south of Zaporozhye, he went to Preuflisch Stargard in the then German Reich (located in present-day Poland), where he arrived in December 1943.
40. On January 21, 1944, Jacob Fast and his family applied for German citizenship with the Einwandererzentralstelle ('EWZ') (Immigration Central Office), in Kulm, in the then German Reich (located in present-day Poland). The procedure was completed in one day and Fast and his family were granted German citizenship.
. . .
45. Jacob Fast was screened by the I.G.C.R. and obtained its assistance. He was later issued a Form MS-l by the I.G.C.R., a document that acted as a travel document.
. . .
66. On July 15, 1946 Henry Peter Toews of Arnaud in the province of Manitoba, the uncle of Jacob Fast's wife Natalie, applied for the admission to Canada for Jacob Fast and his family, by submitting a completed IMM-55.
67. The IMM-55 described Jacob Fast and his family as displaced Mennonites from Russia. It does not indicate that Jacob Fast and his family were German citizens. It does not indicate Jacob Fast's association with the German occupation authorities, and in particular, the German Sipo/SD.
68. Jacob Fast and his family were issued Canadian visas as displaced persons in Hanover on June 13, 1947.
69. Jacob Fast and his family travelled to Canada from Germany on the SS General Stewart and arrived at Halifax on July 31, 1947 where they were examined by an immigration officer. Jacob Fast and his family were landed in Canada on the same date.
70. The Canadian Government Return (also known as the Ship's Manifest, the document filed by the immigration officer at the port of entry) indicates that the Fast family were DP's who had been issued visas in Hannover, Germany and that they were Russians. Jacob Fast did not indicate to the immigration officer that he was a German citizen.
71. Jacob Fast knowingly concealed the fact that he was a German citizen and his voluntary association with the German occupation authorities from the I.G.C.R., the SO., the Visa officer and all other immigration officers.
72. Jacob Fast falsely represented himself to the SO., the Visa officer and all other immigration officers who screened his application as a Displaced Person of Russian citizenship who had not served or collaborated with the German occupation authorities.
73. Because of Jacob Fast's false representations and his concealment of material facts relating to his citizenship status and his activities during the war, the Canadian authorities were deprived of essential information that would have enabled them to validly determine whether or not to admit Jacob Fast into Canada or to issue him a visa.
74. Jacob Fast would not have been admitted to Canada or been issued a visa if his German citizen status, his voluntary membership in the Political Police, his association with the German Sipo/SD and his activities during the war had been known to the I.G.C.R., the S.O., the Visa officer and all other immigration officers.
75. Jacob Fast was not lawfully admitted to Canada and consequently did not acquire Canadian domicile in accordance with the Immigration Act.
76. On September 15, 1953, Jacob Fast applied for Canadian citizenship in St. Catharines, by filing a Petition for Citizenship ('Petition'). He indicated in the Petition that he was born in Tiegenhagen, Ukraine, Russia. He stated that his citizenship at birth was Russian and that he was stateless at the time of filing the Petition.
77. At the time Jacob Fast applied for citizenship, good character and acquisition of Canadian domicile were both conditions precedent to being granted Canadian citizenship.
78. Jacob Fast presented himself to Canadian authorities as a person of good character, notwithstanding his failure to reveal his acquisition of German citizenship, his voluntary association with the German Sipo/SD and his activities during the war.
79. Further, Jacob Fast did not report the circumstances under which he was landed in Canada. He did not indicate his failure to reveal to the immigration officer at the port of entry that he was a German citizen and consequently a member of a prohibited class. On the contrary, Jacob Fast submitted in the Petition that he is a person of good character.
80. Jacob Fast presented himself as a person who had acquired Canadian domicile. At the time of his application for Canadian citizenship, a person could only acquire Canadian citizenship if he had been landed in Canada, and a person could only be landed in Canada if he had been lawfully admitted.
81. Jacob Fast was interviewed by Constable B. Toews of the R.C.M.P., on or about December 8, 1953 in connection with the Petition. In the course of his interview, Jacob Fast indicated that his citizenship was Russian, that he was never suspected of having participated in subversive activities and that public opinion would not be adverse to his being granted Canadian citizenship.
82. Jacob Fast would not have been granted Canadian citizenship if he had disclosed his membership and activities during the war and his German citizenship.
83. Jacob Fast's application for citizenship was approved by a Citizenship Judge, on or about December 21, 1953. He was granted Canadian citizenship on or about June 8, 1954 and took his oath of allegiance on or about June 28, 1954, thereby obtaining Canadian citizenship.
84. The Minister states that Jacob Fast obtained Canadian citizenship by false representations or fraud or by knowingly concealing material circumstances, which gives the Minister grounds upon which to make a report to the Governor in Council for the revocation of Jacob Fast's citizenship.
[13] It can be seen that there are important differences between the Minister's Notice and the Statement of Claim. The Minister's Notice does not allege that Mr. Fast was personally implicated in the inhuman treatment of others while the Statement of Claim alleges that Mr. Fast was personally responsible for the arrest and mistreatment of some prisoners, some of whom were later deported to concentration camps. The Minister's Notice refers only to acts occurring between 1941 and 1947. It does not refer to events which occurred in 1953-1954 when Mr. Fast obtained his Canadian citizenship.
[14] At the commencement of the hearings in this matter, counsel for Mr. Fast moved to strike the portion of the Minister's Notice which refers to "...other wartime activities ... which ... would have rendered [Mr. Fast] inadmissible to Canada" on the ground that it was impermissibly vague. After hearing argument on the motion, I ruled that I did not have jurisdiction to strike any portion of the Minister's Notice because it was not before me. In the course of my reasons, I made the following comments about the relationship between the Minister's Notice and the Statement of Claim:
In my view, the Dueck, Odynsky and Fast cases decided no more than the fact that the allegations made in the statement of claim must be referable to some allegation in the notice. In other words, the Minister cannot expand the scope of the notice by including within the statement of claim matters not referred to in the notice.
. . .
However, this does not deal with the Defendant's concern about the case which he must meet. The fact that the matter is referred to the Court is, in my view, an indication that the Minister is required to prove her case in accordance with the standards which apply in a court. This means that there must be adequate notice of the case to be met, there must be disclosure of the relevant documents, and the evidence tendered must be evidence admissible in a court of law. It is within my jurisdiction to deal with the proof of the matters alleged in the statement of claim and the procedure to be followed in making that proof. The relevance of the evidence to be heard will be determined by reference to the statement of claim and not by reference to the notice. The decision of this Court as to whether the Defendant has obtained citizenship by false representation, fraud, or knowingly concealing material circumstances will be made on the basis of the allegations in the statement of claim. If there are elements in the notice which do not appear in the statement of claim and if the Minister purports to include those elements in her report should she be successful before me, then that will have to be dealt with when it occurs. The application is dismissed.
(Transcript of evidence, November 28, 2001, at p. 31-33.)
[15] In Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] F.C.J. No. 1489, Noël J. (as he then was) considered the function of the Minister's Notice at paragraph 25:
It is therefore apparent that the matter referred to the Court pursuant to Section 18 of the Act is "the case" as set out by the Minister in the Notice and that the Minister is not entitled to make a report unless she is in receipt of the decision of the Court on "the case" referred to it. It follows that it is not open to the Minister in a reference before this Court to seek a determination on an issue that does not come within "the case" set out by the Minister in her Notice.
[16] In Canada (Minister of Citizenship and Immigration) v. Odynsky, [1999] F.C.J. No. 746, MacKay J. considered the same issue at paragraphs 18-20:
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.
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.
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.
[17] In Canada (Minister of Citizenship and Immigration) v. Podins, [1999] F.C.J. No. 1092, the Minister's Notice alleged that the defendant had misrepresented or failed to mention his association with Latvian auxiliary police. However, the Statement of Claim alleged that the defendant was a member of the Waffen SS. McKeown J. decided as follows at paragraph 11:
. . .In my view, the allegation that Mr. Podins collaborated with German authorities by virtue of his membership in the Waffen SS does not come within "the case" as set out in the Notice. The Notice specifies that the "collaboration" attributed to the defendant pertains to his alleged membership in the Latvian Auxiliary Police and his "work in such capacity". This wording in effect limits the scope of the allegedly collaborationist activities to Mr. Podins' employment at Valmiera EG, and precludes the introduction of other allegations post-dating that period. As the "case" against Mr. Podins does not encompass allegations of membership in the Waffen SS, it is not necessary to make findings of fact on that issue.
[18] My ruling that the Minister could not expand the scope of the Minister's Notice by means of allegations in the Statement of Claim is consistent with the positions taken by my colleagues in Dueck, Odynsky, and Podins, supra. My ruling that the determination as to whether the defendant obtained his citizenship by false representations or knowingly concealing material circumstances would be made on the basis of allegations in the Statement of Claim must therefore be understood to refer only to those allegations which are referable to the Minister's Notice. Since allegations which have no basis in the Minister's Notice could not form the basis of a report to the Governor in Council, there is no need to resolve such issues in these proceedings. Specifically, this excludes from consideration the question of misrepresentation or concealment of material circumstances in relation to Mr. Fast's citizenship application in 1952 and 1953.
The Burden and Standard of Proof
[19] The jurisprudence is uniform that the standard of proof in citizenship revocation matters is the civil standard of balance of probabilities though, due to the nature of the allegations, the evidence must be scrutinized with care (see Canada (Minister of Citizenship and Immigration) v. Vitols , [1998] F.C.J. No. 1373, Canada (Minister of Citizenship and Immigration) v. Kisluk, [1999] F.C.J. No. 824 and Canada (Minister of Citizenship and Immigration) v. Baumgartner, [2001] F.C.J. No. 1351). Nor is it contentious that the burden of proof lies with the Minister.
Documentary Evidence and Proof of Facts
[20] The events which give rise to this reference occurred more than 50 years ago in the context of the Second World War. The Minister called two professional historians (Dr. Peter Black and Dr. Franz Golczewski) to give evidence about the course of the war in Ukraine, and the civil and military administration of the areas occupied by the Nazis, with particular emphasis upon the organization of the police. Another professional historian (Dr. David Marwell) testified as to the process by which ethnic Germans (Volksdeutsche) could acquire German citizenship. Dr. Dieter Gosewinkel, a German legal expert, testified as to German naturalization law and the German registration system. A Canadian historian (Dr. Donald Avery) testified as to Canadian immigration policy and practice after the Second World War with particular emphasis on the issue of security screening.
[21] The evidence of these experts consisted of their written reports, their oral evidence and the documents which were introduced into evidence through them, as well as other documents to which they referred as part of the foundation for their reports.
[22] An issue which recurred frequently in the course of the hearings was the evidentiary status of these documents. A large number of documents were marked as exhibits with counsel for Mr. Fast reserving his right to argue their admissibility at a later time. That issue will now be addressed.
[23] Documents which are tendered in evidence must first be shown to be authentic, that is, they must be shown to have been made by the purported maker. If they are tendered in proof of their contents, it must also be shown that they either fall within a recognized exception to the hearsay rule, or that they are admissible pursuant to the principled exception to the hearsay rule as articulated in R. v. Kahn, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915, and R. v. B.(K.G.), [1993] 1 S.C.R. 740.
[24] The Minister has tendered, as proof of authenticity, the affidavits of archivists attesting to the fact that the copies which have been produced in evidence are copies of original documents in the custody of the archives. Where the archivist provides an opinion that the documents are authentic, based upon his or her training and experience with similar documents, I am prepared to accept the documents as authentic. I do so in reliance upon the archivist's expertise with similar documents and the fact that it is precisely the function of archives to maintain historical documents. The fact that such archives are open to scholars is a circumstantial guarantee of trustworthiness, as the community of scholars would soon expose collections of documents which are not authentic.
[25] This does not give effect to the concerns raised by counsel for Mr. Fast as to the continuity of possession of the documents. In other words, the archivists' affidavits do not always trace the movement of the archives from their creators to the archives, leaving a gap which, in criminal proceedings, might well be fatal to the admissibility of these documents. While such evidence would strengthen the case for authenticity, its absence is not fatal. Given that the standard of proof is simply the balance of probabilities, the archivists' evidence is sufficient to establish authenticity.
[26] The next issue is the use of the documents as proof of their contents. The Minister relies upon the ancient documents rule in Delgamuukw v. British Columbia, [1989] B.C.J. No. 1385, which held that documents which came within the rule were not only authentic, but also admissible in proof of their contents:
The rule, therefore, seems to be that private documents 30 years old, produced from proper custody, and otherwise free from suspicion, etc. are admissible and no evidence of the handwriting, signature, sealing or delivery need generally be given. As I have said, 30 years is the rule at common law. Legislation has changed this to 20 years in England, but there is no such legislation in this country.
. . .
It is accordingly my judgment that ancient documents which qualify for admissibility are available as proof of the facts they contain including statements based on hearsay. Such evidence is not, of course, conclusive on any question, and may, under the rubric of weight, be disregarded in whole or in part if it is based entirely on hearsay, or if it is contradicted, or if its value as evidence is destroyed or lessened either internally or by other admissible evidence, or by common sense. Even then, provided Wigmore's 2 great tests are satisfied, the Court may feel impelled to act on hearsay if the document in which it is found demonstrates a circumstantial guarantee of trustworthiness and there is no other evidence.
Delgamuukw, supra, at p. 9, 16 (F.C.J.).
[27] In coming to that conclusion, Chief Justice McEachern referred to the decision of the Supreme Court of Canada in Ares v. Venner, [1970] S.C.R. 608 and to decision of the House of Lords in Myers v. Director of Public Prosecutions, [1965] AC 1001 (H.L.). As is well known, the first case refers to hospital records made by nurses under a duty to record their observations, while the second case refers to documents which could be characterized as business records. Those elements are lacking in this case. In its original aspect, the ancient documents rule was a rule dispensing with proof of authenticity. Its supporting rationale was the difficulty of proving the attestation of documents after the attesting witnesses had died. In its second aspect, the ancient documents rule concerned the use of ancient documents to prove ancient possession of land. Phipson on Evidence, Fifteenth Ed. (Sweet & Maxwell, London, 2000), upon which Chief Justice McEachern relied, shows that ancient documents, produced from proper custody are admissible in proof of ancient possession (see article 36-60, at p. 914). The Law of Evidence in Canada (2nd Ed.), Sopinka et al (Butterworths, Toronto, 1999) is to the same effect (see paragraph 6-200, at p. 245).
[28] The rationale which supports the ancient documents rule dispensing with proof of authenticity would not support the use of such documents in proof of their contents, except as to proof of ancient possession. Age alone does not bring such documents within the rule in Ares, supra or Myers, supra.
[29] The Minister also sought to show that documents which originated in the State Archives of Zaporozh'e Oblast were business records [note: Zaporozhye is the English version of that city's name; Zaporozh'e is the transliteration of the name as written in the Cyrillic alphabet]. The evidence in support of this proposition was the affidavit of Dr. Franz Golczewski who, after deposing that he had examined the originals of the documents attached as copies to the affidavit of the archivist, went on to say at paragraphs 11-12:
11. As a result of my academic and professional experience, I am familiar with the documents produced during the period of the German occupation of Poland Ukraine, Belarus, and Russia, including documents from other archives which are similar to those copies which are annexed as exhibits 1 to 71 to the aforesaid affidavit [affidavit of the archivist].
12. As a result of my academic and professional experience, I am of the opinion that the original records, true copies of which are annexed as exhibits 1 to 71 to the aforesaid Affidavit, were made by the SS and Police organization, and/or the Wehrmacht, and/or the German civil administration, and/or the local indigenous administration in the area of Zaporozhye, during the German occupation of Ukraine, in the usual and ordinary course of their business.
[30] Business records are admissible in proof of their contents by virtue of section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5:
30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.
2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the Court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.
(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy's authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is
(a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or
(b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state.
30. (1) Lorsqu'une preuve orale concernant une chose serait admissible dans une procédure judiciaire, une pièce établie dans le cours ordinaire des affaires et qui contient des renseignements sur cette chose est, en vertu du présent article, admissible en preuve dans la procédure judiciaire sur production de la pièce.
(2) Lorsqu'une pièce établie dans le cours ordinaire des affaires ne contient pas de renseignements sur une chose don't on peut raisonnablement s'attendre à trouver la survenance ou l'existence consignées dans cette pièce, le tribunal peut, sur production de la pièce, admettre celle-ci aux fins d'établir ce défaut de renseignements et peut en conclure qu'une telle chose ne s'est pas produite ou n'a pas existé.
(3) Lorsqu'il n'est pas possible ou raisonnablement commode de produire une pièce décrite au paragrap