Federal Court Decisions

Date: 20020311

Docket: T-453-00

Neutral Citation: 2002 FCT 269

Ottawa, Ontario, this 11 ^th day of March 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

The Minister of Citizenship and Immigration

Plaintiff

- and -

Jacob Fast

Defendant

REASONS FOR ORDER AND ORDER

[1]    The Court has before it a motion to introduce into the trial record the evidence taken on commission in the City of Zaporozhye, Republic of Ukraine, in August 2001. The motion is opposed by counsel for Mr. Fast as to the evidence of the witnesses Fomin, Kudin and Kopayevskaya.. Counsel's primary objection to this evidence is the fact that the witnesses Fomin and Kudin had been shown a photo lineup in the course of interviews by the Minister's representatives. The production of that photo lineup had been demanded by counsel for Mr. Fast. The document which was produced was a poor photocopy of six photographs. Counsel took the position that without the original photo lineup, or copies of the photos of quality comparable to the originals, he could not adequately cross examine these witnesses. With respect to the witness Kopayevskaya, counsel objected to her evidence going in because she had identified a photograph of Jacob Fast before the commission, after having been shown a single photograph by the Minister's representatives in pre-hearing interviews. Counsel took the position that such identification evidence was so unreliable as to be inadmissible. Counsel also objected to this evidence going in on the basis of his inability to cross-examine the witness with the photo lineup in hand.

[2]    The photograph which was identified by the witnesses is said to be an enlargement of a photograph which appears on a document which was disclosed to the Defendant. Counsel for Mr. Fast objects to the fact that the enlarged photograph was not referred to in the Minister's Affidavit of Documents. Counsel says that if he had known of the existence of the enlarged photo, he could have used it in his witness interviews. Furthermore because it is not referred to in the Affidavit as to documents, the court has a discretion to refuse to allow it to be used in evidence pursuant to Rule 232 of the Federal Court Rules, 1998, SOR/98-106.

[3]                 Counsel for Mr. Fast also objects to the introduction of certain hearsay evidence from the witness Kudin to the effect that some of his comrades in arms told him, after the war, that Mr. Fast was the chief of the SD in Zaporozhye. Counsel argues that the evidence does not meet the requirements of the principled approach to hearsay evidence laid down by the Supreme Court of Canada in the trilogy of cases on the admissibility of hearsay evidence: R. v. Khan, [1990] 2 S.C.R. 531, R. v. Smith, [1992] 2 S.C.R. 915 and R. v. K.G.B., [1993] 1 S.C.R. 740.

[4]                 The Minister responds by pointing out that even the authorities relied upon by Mr. Fast make the point that if there are deficiencies in the identification evidence, the proper course is to admit the evidence and to take the deficiencies into account when weighing the evidence. This would be the case whether the witnesses were shown a photo lineup or a single photograph before giving their evidence. As for the question of production of the photo lineup, the Minister disclosed what she^[1] received from the R.C.M.P. when she received it. She says she could do no more. Finally, counsel for the Minster rejects the suggestion that the photograph identified by the witnesses should be excluded because it was not disclosed on the Minister's affidavit as to documents. He says that the document from which the photograph was taken was disclosed and that the enlargement is simply a reproduction, albeit a larger one, of a disclosed document.

[5]                 With respect to the admission of the hearsay evidence of Mr. Kudin as to Mr. Fast's wartime activities, counsel for the Minister indicates that the evidence does meet the requirements of the principled approach to the admission of hearsay evidence: it is necessary because of the death of so many of the potential witnesses and it is reliable because the "comrades in arms" had no reason to lie about Mr. Fast's wartime activities.

[6]                 The facts, as they emerge from the various affidavits before the court, are relatively simple. When the allegations against Mr. Fast came to the attention of the Minister, she referred the matter to the R.C.M.P. for investigation. They interviewed a number of witnesses in the Republic of Ukraine, usually in the presence of Mr. Daniel Poulin, a lawyer in the War Crimes Unit of the Department of Justice. In the course of those interviews, the transcripts of which were disclosed to counsel for Mr. Fast, some of the witnesses were shown a photo line up, that is, a series of photographs, from which they were asked to identify Mr. Fast. At the examination for discovery of Mr. Baker on behalf of the Minister, in June 2001, an undertaking was given to produce the contents of the R.C.M.P. file, including the photo lineup. In August 2001, Mr. Poulin received a copy of the R.C.M.P. file which he reviewed and subsequently disclosed to counsel for Mr. Fast 2 or 3 days before the latter left Canada for Ukraine for the commission hearings. The original photo lineup was not in the file which the R.C.M.P. provided to the Minister's counsel, nor were the original photos available to either counsel while the commission evidence was being taken.

[7]                 In the course of cross examination of the witnesses Fomin, Kudin and Kopayevskaya, counsel for the defence took the position that he was unable to adequately cross examine the witnesses due to the unavailability of the photo lineup and that he reserved his right to oppose the introduction of the witness' evidence on that basis at the trial.

[8]                 Dealing with the primary objection first, the issue of faulty identification arose in R. v. Miaponoose (1996), 110 C.C.C. (3d) 445. In that case, the Ontario Court of Appeal dealt with identification evidence which was said to have been obtained inappropriately. In considering the use to be made of such evidence the Court said the following:

The use of inappropriate pre-trial identification procedures does not render the subsequent identification inadmissible unless it is the subject-matter of an appropriate and successful application under s. 24(2) of the Charter. But, it is a factor affecting the weight of the evidence. There may be other evidence or other circumstances which serve to otherwise validate the witness's identification. p. 458.

[9]                 In the present case, it is no answer to say that since there has been no application under section 24(2) of the Charter to exclude the evidence, it must go in. The application which is before the court is the application for exclusion; the fact that it is not based on the Charter cannot, by itself, be fatal to the application.

[10]            Furthermore, the issue is not whether the Minister produced a document in respect of her undertaking but whether the document produced was capable of satisfying the undertaking. The document or documents in issue are the photographs used for the photo lineup. These photographs are relevant for two purposes, to put to witnesses in the course of trial preparation, and to put to witnesses as they gave their evidence before the commission. Consequently, production of the photographs means production of copies of sufficient quality to be put to those uses. The photocopy which was produced was of such poor quality that in the some cases, the details of the person's face could not be distinguished. In my view, the photocopy was not suitable for use in trial preparation or cross-examination and to that extent, the undertaking was not satisfied.

[11]            This is not importing a new requirement into the law as to production of documents but merely clarifying what is implicit in the rule. Rule 228 of the Federal Court Rules, 1998, deals with the inspection of disclosed documents and the taking of copies of those documents:

228. (1) Subject to rule 230, a party who has served an affidavit of documents on another party shall, during business hours, allow the other party to inspect and, where practicable, to copy any document referred to in the affidavit that is not privileged, if the document is

(a) in the possession of the party; or

(b) in the power or control of the party and the other party requests that it be made available because the other party cannot otherwise inspect or copy it.

(2) A party who has served an affidavit of documents on another party shall, at the request of the other party, deliver to the other party a copy of any document referred to in subsection (1), if the other party pays the cost of the copies and of their delivery.

228. (1) Sous réserve de la règle 230, la partie qui a signifié à une autre partie son affidavit de documents lui permet d'examiner et, si possible, de reproduire, pendant les heures de bureau, tout document mentionné dans cet affidavit, si aucun privilège de non-divulgation n'est revendiqué à l'égard du document et si celui-ci est :

a) soit en sa possession;

b) soit sous son autorité ou sous sa garde, et que l'autre partie demande d'y avoir accès parce qu'elle ne pourrait autrement l'examiner ou le reproduire.

(2) La partie qui a signifié son affidavit de documents à une autre partie lui remet des copies de tout document visé au paragraphe (1) si celle-ci lui en fait la demande et paie le coût de reproduction et de livraison des copies.

[12]            It is clear that a party has the right of access to the originals of the documents disclosed by the other party and has the right to take copies. Where a request for copies is made and the attendant costs paid, a party is obliged to provide copies.    But it is implicit in this that the copies must be usable for their intended purpose.    Illegible copies of documents would not satisfy the obligation imposed by Rule 228 since the party requesting the copies would derive no benefit from the possession of those copies. The same is true of photographs. The onus is on the party providing the copies to see that they are fit for use.

[13]            It is said in the Minister's defence that she produced what she was given. Nemo dat quod non habet. You can't give what you haven't got. The premise of the argument is that the documents were not documents within the Minister's power or control and therefore not subject to disclosure, and therefore not subject to production. The R.C.M.P.'s investigation was undertaken at the Minister's request, and the results of the investigation were made known to the Minister. In the absence of a claim of privilege (which has not been advanced) there is no obvious reason why the contents of the R.C.M.P. file were not included in the Minister's Affidavit of Documents. The fact that the documents were subsequently produced supports this argument. In the result, I am not satisfied that the Minister was limited to passing on what was produced to her.

[14]            In the ordinary course of events, the remedy for inadequate disclosure is a bar on the use of document which was not disclosed, or in extreme cases, the striking of a party's pleadings. See Rules 227 and 232 of the Federal Court Rules, 1998. In this case, the Minister does not seek to introduce the photo lineup into evidence. The remedy of striking the Minister's pleadings is disproportionate to the inadequacies of production. Counsel for Mr. Fast seeks another remedy which is to exclude the testimony of the witnesses whose evidence could not be challenged because of the failure of production.

[15]            The application is based upon counsel's position that he could not adequately challenge the identification evidence by cross-examination as a result of the failure of production of the photo lineup. It is important to note that this is not a question of impossibility of cross examination. The witness was before the commission, under oath and available to be cross-examined. Counsel could have cross examined and had he done so, may well have shaken or weakened the identification of Mr. Fast. But if he did so, it was without the benefit of the documents which would make cross-examination most effective. If he managed to compromise the identification to some extent, his argument for the exclusion of the evidence would be met by the riposte that he could show no prejudice since he had in fact attenuated the force of the identification evidence. This puts counsel to a fundamentally unfair choice of alternatives.

[16]            Had the difficulties with disclosure occurred in the course of the trial rather than in the course of taking commission evidence, it is said that the defendant would have been entitled to request an adjournment for the purpose of obtaining adequate disclosure. The trial would then have resumed with counsel in possession of the photo lineup. Because these problems came to light in Ukraine and the photo lineup was not with counsel for the Minister, it was impossible to adopt this course of action. Should that now result in the exclusion of the evidence?

[17]            The status of commission evidence was considered in R. v. Branco (1988), 41 C.C.C. (3d) 248 where the following appears at p. 253:

      It is quite clear that the accused has no concern with respect to the commission evidence unless and until it is tendered at his trial. The Crown has the discretion to decide whether or not to tender the evidence and, if it decides to introduce it, to determine at what stage it will do so. The use of this discretion is an exercise of the control the Crown has over the conduct of its own case. However, in my view, once the evidence is tendered, then it becomes a part of the trial. If it develops that there were defects in the taking of that evidence, then those defects are as significant in the taking of the commission evidence as they would be if they had occurred at trial.

  

[18]            The conclusion which is urged upon the court is that since an adjournment was not possible in Ukraine, and since the defendant is entitled to a remedy, the only fair outcome is to exclude the evidence which counsel says could not be adequately tested by cross examination as a result of inadequate production of documents.

[19]            In the end result, the overriding issue is fairness to the defendant. Has the Minister's failure of disclosure created a situation in which the interests of fairness will only be served by the exclusion of the identification evidence? In my view it has, a conclusion to which I come for the following reasons;

- upon the undertaking being given that the photo lineup would be disclosed, counsel for Mr. Fast was entitled to assume that he would have the photo lineup available for interviewing and cross examination of witnesses.

-when confronted with the inadequate production, counsel for the defendant was in the position where alternate arrangements for interviewing and cross-examination on the basis of a different photo lineup could not easily be made.

-while counsel still had the opportunity to cross-examine the witnesses on the issue of identification, by doing so he risked strengthening the identification evidence while being deprived of the best opportunity to weaken it. Putting counsel to such a choice is inherently unfair.

-while there is a broad judicial preference for admitting impugned evidence, leaving its weight to be determined in light of the challenges made, this evidence as it stands is entitled to no weight. It has not been tested by cross-examination for reasons which I find are valid. It concerns the identification of a person last seem some 50 years ago, a situation of inherent unreliability. And, the circumstances giving rise to this situation could have been avoided.

[20]            Counsel for the defendant has asked that the entire evidence of the witnesses Fomin, Kudin and Kopayevskaya be excluded. It is clear from the discussion above that the only evidence which is implicated by the inadequate production is the identification evidence. There is no justification for excluding anything other than the identification evidence. As a result, there will be an order admitting the evidence taken on commission into the trial record as though it had been given before the court, save for the identification evidence given by the witnesses Fomin, and Kudin. The particular passages to be excluded will be settled when the transcript are tendered.

[21]            Slightly different considerations apply to the evidence of Kopayevskaya who was not shown the photo lineup but was shown one photo only. That photo was before the court and was available for to be used in cross-examination. Consequently, one could argue that the defendant was not prejudiced here as he was in the case of the other two witnesses. On the other hand, the availability of the photo lineup would have permitted a more effective cross examination and more effective pre-hearing interview of the witness. The defendant was entitled to have the benefit of the use of those documents in respect of all identification witnesses, not simply those to whom it had been put. The identification evidence of the witness Kopayevskaya will also be excluded, with the specific passages to be excluded identified when the transcripts are tendered.

[22]            The last issue is the hearsay evidence given by the witness Kudin that after the war, his comrades in arms told him that Jacob Fast was the head of the SD in Zaporozhye. This is clearly hearsay evidence which comes within the exclusionary rules which formerly occupied such a large part of treatises on the law of evidence. The admissibility of hearsay evidence is now to be assessed under the principled approach to hearsay, which subjects the evidence to the tests of reliability and necessity. It is said that this evidence is admissible because the comrades in arms who made the statement are either dead or unavailable, which satisfies the criterion of necessity, and they had no reason to lie about Mr. Fast, which satisfies the criterion of reliability.

[23]            Counsel for Mr. Fast points out that since we do not know who these comrades in arms were, we do not know if they are dead or unavailable. After all, Mr. Kudin was available to testify. And as for any motive for lying, without knowing who they are, how can one say what their motives were?

[24]            The principled approach to the admissibility of hearsay evidence must confront the same problem which the old exclusionary rules were intended to address. Hearsay evidence is the tender of an out of court statement in proof of the contents of the statement. The difficulty which arises is that the witness who is before the court ends up putting in the evidence of a person who is not before the court and is not available to be cross-examined. In Khan, supra, the issue was whether a mother should be allowed to testify as to what her daughter had said to her about events which occurred in the accused physician's office when the mother was absent from the room. While the testimony came from the mouth of the mother, it was in fact the child's evidence. The test of reliability and necessity was applied to evidence of the child:

[para21]      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. The evidence also bore strong indicia of reliability. T. [the child] 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.

  

R. v. Khan, supra

  

[25]            It is therefore fundamental to the application of the principled approach to hearsay that the person whose evidence is being tendered through the witness be identifiable, and that the necessity and reliability of that person's out of court statement be established. Where the person or persons are unknown, there is simply no basis for an assessment of the necessity and the reliability of the statement. Consequently, the principled approach to the hearsay rule would not permit the admission of the evidence of Mr. Kudin's comrades in arms through his mouth. The passage to be excluded will be identified when the transcript of the commission evidence is tendered to the court.

ORDER

The evidence taken on commission at the City of Zaporozhye, in the Republic of Ukraine is to be introduced into the record of the trial of this matter except for the passages dealing with the identification of Jacob Fast by the witnesses Fomin, Kudin and Kopayevskaya, with the such passage to be identified upon the tender of the transcripts of the evidence.

  

        "J.D. Denis Pelletier"         

   Judge