Date: 19990215
Docket: T-2408-96
IN THE MATTER of revocation of citizenship pursuant to sections 10 and 18
of the Citizenship Act, R.S.C. 1985, ch. C-29, as amended, and section 19
of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended;
AND IN THE MATTER of a request for reference to the Federal Court
pursuant to section 18 of the Citizenship Act, R.S.C. 1985, c. C-29,
as amended;
AND IN THE MATTER of a reference to the Court pursuant to
Rule 920 of the Federal Court Rules
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
VLADIMIR KATRIUK
Respondent
REASONS FOR ORDER
NADON J.:
[1] In my decision of January 29, 1999 concerning the main issue in these proceedings, I indicated that, upon request by either party, I would provide detailed reasons with respect to the inadmissibility of the Commission Evidence taken in Poland in April 1998. These are my reasons.
[2] On February 5, 1998, the Chief Justice of this Court appointed me to take the evidence, inter alia, of Michael Jankowski, of Opole, Republic of Poland. Paragraphs 13 and 14 of the Mutual Understanding between the Department of Justice of Canada and the Ministry of Justice of the Polish People"s Republic dated Warsaw, June 7, 1988, provides as follows:
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Taking of Evidence in the Polish People"s Republic |
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13. That when a Canadian Court upon the application of the Department of Justice of Canada or otherwise issues a request to take evidence in the Polish People"s Republic, the Ministry of Justice of the Polish People"s Republic will take the necessary steps to facilitate the taking of such evidence at the earliest opportunity by arranging the following: |
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a) On the Polish side a Polish judge will preside at such hearing in accordance with the requirements of the Polish law and will enable the representative of a Canadian Court also presiding on the Canadian side to take evidence at the hearing in accordance with Canadian rules of evidence and procedure; |
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b) There shall be interpreters chosen by the Department of Justice of Canada; |
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- all proceedings shall be translated into the English or French languages as required by the Department of Justice of Canada; |
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- a verbatim record of all proceedings including the questions and answers of witnesses and objections by counsel and discussions will be made by a reporter chosen by the appropriate Canadian authorities; |
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- all proceedings will be recorded on videotape by Canadian authorities; |
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- all the above activities shall be carried out at the expense of the Canadian side |
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c) Permit the hearing of persons who at the request of the appropriate Canadian authorities are requested to come as witnesses and make statements or supply evidence and other things, all of which is to be carried out by suitable courts in agreement with Polish legal rules. |
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14. The Department of Justice of Canada agrees to pay back to the Minister of Justice of the Polish People"s Republic such fees and expenses that are normally paid to witnesses according to Polish legal rules. |
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[3] As appears clearly from Paragraph 13 of the Mutual Understanding, a Polish Judge is to preside in accordance with the requirements of Polish law and is to enable the Canadian Judge to take the evidence of the witness in accordance with Canadian rules of evidence and procedure.
[4] The hearing of the evidence of Mr. Jankowski took place in Opole, Republic of Poland, on April 2, 1998. As appears from the transcript of the hearing, a Polish Judge, Madame Justice Roguska-Gajewska, not only presided at the hearing in accordance with the requirements of the Polish law but, in fact, conducted an examination of the witness in accordance with Polish law and procedure. In effect, as is the procedure under the laws of Poland, Madame Justice Roguska-Gajewska examined the witness and cross-examined him.
[5] After completing her examination of Mr. Jankowski, Madame Justice Roguska-Gajewska asked me if I "would like to ask any questions of the witness at this point?".1 I responded in the negative but indicated to the Polish Judge that my preference was that the questioning be done by the Canadian lawyers.
[6] Mr. Lucas, for the Minister, asked a number of questions to the witness. Then, Mr. Rudzik, for Mr. Katriuk, made an objection in regard to the procedure and rules of evidence pursuant to which the Polish Judge examined Mr. Jankowski. At pages 68 and 69, Mr. Rudzik made the following submissions:
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With all due respect to our being guests in your jurisdiction, we feel that the differences in our procedures and yours are so radically different, that we would not be able to cure by way of objections the problems we have in what has transpired today, so that we will be presenting our objections in due course as part of our response once we return to Canada. I refer to matters such as examining prior inconsistent statements. |
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Examining a witness on his own prior inconsistent statement, cross-examining one"s own witness, directing and leading questions of one"s own witness, and a number of other appropriately permitted procedures under your procedures, but which we have never practised, and in terms of which we have to live with. |
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And so, once again, Madame Justice, I thank you for the opportunity and for your courtesy of having us here, but we would conclude on that basis. |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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[7] At pages 69, 70 and 71, I responded to Mr. Rudzik"s objection as follows:
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It seems to me, Mr. Rudzik, I hope you are aware and you understand that this case ultimately will be decided under Canadian law with the rules and principles that we are all familiar with. As I indicated earlier, objections and problems that arise by reason of a different practice and procedure will be decided by me in Canada following arguments by counsel regarding the points that have been raised. |
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So, I have some difficulty in understanding the comments that have just been made, which seem to indicate that you do not accept that your client be dealt with according to Polish law. |
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Can you please repeat this? |
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Mr. Rudzik"s comments which seem to be to the effect that he does not accept to have his client be dealt with according [sic ] the Polish law and Polish procedures. To repeat myself, it is crystal clear that Mr. Katriuk will be dealt with according to Canadian law. |
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He will be - either the answers to the questions posed to the Court will either be yes or no based on the evidence presented to the Court in Canada and here, to the extent that the evidence made here is admissible according to Canadian law, but that is a point which will not be decided her for obvious reasons. |
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So, to make my point finally after this long introduction, as I am not deciding any of these points here today, but I will decide them in Canada, I simply wish to emphasize that if you do not ask questions, you are taking that decision. I do not know what the outcome of my decision will be, once the matters are argued and raised, but I want you to reflect on that perhaps for a few minutes. |
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Whether you should not ask questions today is your entire decision, but the decision that I will take in due course will be made in Canada. If you are right, you are right. If you are wrong, then the consequence will be that you will not have asked any questions. |
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So, for my own sake, let me ask you again, is it your decision that you wish to rest on the objection that you have made and not ask any questions to Mr. Jankowski? |
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[8] Mr. Rudzik responded that he would not be asking any questions and would raise his objection regarding the admissibility of the Polish evidence upon our return to Canada. The matter was indeed raised in Canada and I ruled that the evidence of Mr. Jankowski was not admissible.
[9] The learned Polish Judge was certainly of the belief that she had been authorized by her government to examine, according to Polish law, the witness Mr. Jankowki. That appears quite clearly from an exchange between Mr. Rudzik and the Polish Judge which appears at pages 65, 66, 67, 68 and 69:
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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I just wanted to make sure whether or not we need any time at all to prepare for the questions. |
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I thank Madame Justice, but I think we are ready to proceed. Madame Justice, we will be very brief. I have one question that I would ask to the Bench, if I may. And then, we just have a general position statement. And since we are in your jurisdiction, and you kindly permit us to be seated, I"ll take advantage of your offer. |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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Please be seated and do not feel hurried. We extend you as much time as you need. |
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Thank you, I notice that the document that Madame Justice was quoting from was issued by the Main Commission for the Investigation of Crimes against the Polish Nation. My question to the Bench, since this evidence refers to what happened in Belarus in 1942 and 1943, and as far as I am aware, no Polish nationals were involved, how does the case of Vladimir Katriuk become a concern to the criminal process of Poland? |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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We were approached by the Minister of Justice of Canada for help in the case of Mr. Katriuk. Among other things, it was about interrogating a Polish citizen, Mr. Jankowski. |
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I understand that, Madame Justice, but other than the fortuitous connection that there happens to be a Polish witness, I understand that there is no other connection between the Polish Government nor any interest in the case of Vladimir Katriuk. |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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The Commission takes care of crimes that were affecting the Polish nation, but at that time there were Polish citizens in that area. And there was a lot of crime done to Polish nationals by criminal Ukrainian organizations before 1939 within the borders of Poland. I am making a very general statement without referring to any particular organizations. |
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But is Madame Justice aware that the Canadian Government, for reasons best known to itself, is not charging Mr. Katriuk with any crimes? |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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That"s why we were puzzled, Madame Justice, why we should be appearing as part of the criminal process. And perhaps our position, Madame Justice ... |
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THE COURT (Madam Justice Bozenna Roguska-Gajewska): |
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We are interrogating a witness here, and he has mentioned the name of Katriuk. So, we cannot really omit that fact, even though the Canadian Government has a different standpoint on that. |
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I appreciate that, Madame Justice, and perhaps - I was just going to say I appreciate that, and perhaps you will allow us then to explain our position on behalf of Mr. Katriuk. |
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With all due respect to our being guests in your jurisdiction, we feel that the differences in our procedures and yours are so radically different, that we would not be able to cure by way of objections the problems we have in what has transpired today, so that we will be presenting our objections in due course as part of our response once we return to Canada. I refer to matters such as examining prior inconsistent statements. |
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Examining a witness on his own prior inconsistent statement, cross-examining one"s own witness, directing and leading questions of one"s own witness, and a number of other appropriately permitted procedures under your procedures, but which we have never practised, and in terms of which we have to live with. |
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And so, once again, Madame Justice, I thank you for the opportunity and for your courtesy of having us here, but we would conclude on that basis. |
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[10] It goes without saying that I, as a Canadian Judge, did not have the authority to give any direction or order, while on Polish soil, to the Polish Judge or other officers of the Polish judicial system. As I indicated in open court when I made my ruling, my mandate, as per the order of this Court giving me a Commission to Take Evidence in Poland, was to take the evidence of Mr. Jankowski in accordance with our rules of evidence and procedure. That, as it turned out, was not possible. I will give one example of this. At page 60 of the transcript, Mr. Lucas, for the Minister, asks the following question:
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And now my question is: Who was it exactly that suggested to you that you join the police? |
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[11] Madame Justice Roguska-Gajewska intervened immediately and indicated to Mr. Lucas that the answer to his question had already been given by the witness in answer to some of her questions. In effect, the Polish Judge was prepared to allow me and the Canadian lawyers to ask questions but she reserved for herself, as she was entitled to, the right to allow or not to allow these questions. That, in my view, was abundantly clear.
[12] The Polish Judge, as I indicated earlier, not only examined Mr. Jankowski but she cross-examined him at length and often challenged his answers by reading to him from statements that he had previously given to the Polish authorities concerning his involvement with Battalion 118.
[13] I ruled that Mr. Rudzik"s objection was well taken and that, consequently, Mr. Jankowski"s evidence was not admissible in these proceedings. I came to that conclusion because I had not been able to fulfill the mandate entrusted to me, i.e. to take Mr. Jankowski"s evidence in accordance with our rules of evidence and procedure. I do not believe, in the circumstances, that it would have been proper to admit Mr. Jankowski"s evidence.
Ottawa, Ontario "MARC NADON"
February 15, 1999 JUDGE
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1 Page 53 of the transcript.