Canada ( Minister of Citizenship and Immigration ) v. Bogutin
T-1700-96
McKeown J.
3/10/97
21 pp.
Applicant Minister seeking to tender as evidence four signed statements by deceased persons and two by person no longer mentally competent-Statements obtained in Ukraine by RCMP Special Investigations and War Crimes Unit-Statements given in foreign language with two interpreters present in each case-Issue whether statements have necessary requirements of necessity and reliability to permit their admission into evidence as exception to hearsay rule-Supreme Court decisions in R. v. Khan, [1990] 2 S.C.R. 531 and R. v. Smith, [1992] 2 S.C.R. 915 applied-Six statements herein do not fall within spontaneous declaration rule as statement neither contemporary nor made under pressure or emotional intensity which would give it guarantees of reliability upon which spontaneous declaration rule has traditionally rested-Four tests as stated by Lord Pearce in Myers v. Director of Public Prosecutions, [1965] A.C. 1001 (H.L.) (must be case where difficult to obtain other evidence; declarant must be disinterested; must be made before any dispute or litigation; declarant must have peculiar means of knowledge not possessed in ordinary cases) summarized as necessity and reliability-In light of age and health of witnesses herein at time of interviews, cannot be said that deaths of two witnesses and mental incompetence of third sudden and unexpected-Since nine witnesses have testified to relevant events during German occupation, not difficult to obtain other evidence-Also, statements given 50 years after events took place-Therefore, evidence not meeting requirement of necessity-Reliability-First statement by each of three witnesses made in connection with investigation unrelated to respondent-Second statement made after suggestion of litigation (witnesses aware people being investigated for reason)-Not spontaneous declarations by witnesses immediately after events, but some 50 years after-Cross-examination of witnesses might have disclosed hearsay-Some problems with reliability of statements taken from three witnesses: statements not verbatim transcripts of interviews, and no recordings or videos made, and none of witnesses could identify respondent from photograph although only one witness thought that he could make such identification-Some difficulties with translation and transcription of statements-Also, fact one witness was contacted and located by local communist officials in former U.S.S.R. may have affected responses of witnesses-Finally, given wording of caution administered to witnesses, they may have felt they had no alternative but to subject themselves to interview-In light of above, statements do not meet necessary requirements of necessity and reliability to permit their admission into evidence as exception to hearsay rule.