T-866-95
The Minister of Citizenship and Immigration (Applicant)
v.
Helmut Oberlander (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Oberlander (T.D.)
Trial Division, MacKay J."Kitchener, Ontario, September 17; Ottawa, September 30, 1998.
Evidence — Admissibility of documents tendered as exhibits by Minister in reference relating to respondent's acquisition of citizenship — At issue German war documents, originating in central or field offices of armed forces or police, serving government of Third Reich, during World War II; testimonial documents prepared for or provided in Canadian judicial proceedings, including affidavits, affiants of which either deceased or unable to testify; miscellaneous documents — (1) War documents containing hearsay — Supported by affidavit of archivists, others attesting to authenticity of copy of document — Canada Evidence Act, s. 30 providing where oral evidence in respect of matter admissible, record made in usual, ordinary course of business containing information in respect of that matter admissible on production of record — War documents records — Activity in which originated clearly within broad definition of —business— in s. 30(12) (i.e. in relation to ordinary activities of government agencies) — Documents should not be excluded as not meeting requirement for reliability because only persons available to attest to original production of documents in usual, ordinary course those historical experts who gained knowledge second-hand — S. 30 not requiring attestation document made in usual, ordinary course of business be made by someone who knows that from personal experience and who was involved in producing document — Expertise of historians providing necessary threshold reliability for admission of documents in evidence as official documents — (2) Testimonial documents hearsay — Test for reliability of documents not met where documents prepared as affidavits for legal proceedings in anticipation of cross-examination, but ultimately none possible — Test of necessity not met as similar evidence already before Court — S. 30(10) excluding admission of record made in contemplation of legal proceedings or transcripts of evidence taken in course of another legal proceeding — As documents within those specific descriptions, inappropriate to admit them on basis of principled exception to common law rule — (3) Miscellaneous documents admitted except copy of verdict of German Court in criminal trial of another person — Clearly irrelevant.
This was a ruling as to the admissibility of certain documents, mainly from archives maintained by foreign governments, tendered as exhibits, on behalf of the Minister in a reference in regard to the respondent's acquisition of citizenship. The respondent objected to the admissibility of the documents on the ground that they contained hearsay. The majority of the documents objected to were "war documents", originating in central or field offices of the armed forces or of the police, serving the government of the Third Reich in Germany, during the Second World War. They included directives or orders of the Army command, and field unit reports forwarded up the chain of command. Other documents were described as testimonial documents prepared for or provided in Canadian judicial proceedings, including affidavits, the affiants of which were either deceased or unable to testify; transcripts of evidence; and the direct and cross-examination of a witness, now deceased, in proceedings similar to these. There were also a few miscellaneous documents, including a list of war service awards, and two documents concerning post-war proceedings, all of German origin. The Minister argued that all of the "war documents" were admissible pursuant to Canada Evidence Act , section 30 on the basis of the affidavits tendered with the documents and the report of an expert witness. All of the war documents were supported by affidavits of archivists responsible for maintenance and custody of the originals and by others, attesting to the authenticity of the copy of the document submitted. These affidavits attested, for each document, its source in official government archives, the fact that the original could not be produced to the Court since it was an historic official document maintained within the archives concerned, the circumstances of copying the original and the verification that a true copy had been produced and tendered to the Court. Subsection 30(1) provides that 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 on production of the record. It was urged that the testimonial documents should be admitted in accord with the "principled exception" to the hearsay rule enunciated by the Supreme Court of Canada in R. v. Smith ; R. v. Khan and R. v. B. (K.G.). That exception permits admission of hearsay evidence where the circumstances in which a statement was made are such that the statement can be considered reliable, and where there is reasonable necessity that the evidence be admitted to support or deny a matter in issue.
Held, the war documents should be admitted pursuant to section 30, subject to any possible future argument in regard to any document concerning relevance or probative value, or both; the testimonial documents should not be admitted; the miscellaneous documents should be admitted, except for the copy of the verdict, and its partial translation to English, of the Munich Regional Court resulting from the trial of Dr. Kurt Christmann.
(1) The war documents were "records", and the activity in which they originated was within the broad definition of "business" in subsection 30(12): any undertaking of any kind carried on in Canada or elsewhere, including any activity by any government or government agency. The "war documents" were in relation to activities of key agencies of the German government of the day, its armed forces and its police agencies. They contained only hearsay, indeed, double hearsay, but they were documents produced in the ordinary course of activities of government agencies concerned with both military and police operations.
The only persons available to attest to the original production of the documents in the usual and ordinary course were those historical experts who gained their knowledge secondhand. The documents should not be excluded on the ground that they did not meet the underlying principle of reliability because they were not identified by a person who had personal knowledge of the reporting process said to be the ordinary course of business or activity. Section 30 does not require that an attestation that the document is made in the usual and ordinary course of business of the agency, be made by someone who knows that from personal experience and who was involved in the process of producing the document. Subsection 30(3) provides for copies of original documents to be admitted on the basis of affidavits of "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 it is made by the person who made the copy". Subsection 30(6) permits the Court to "examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record". No requirement is set out in the Act for personal experience of the affiant with the process of producing the document. It is for the Court to assess on the basis of the affidavits whether the necessary requirement for reliability is met. The expertise of historians provided the necessary threshold reliability for admission of the documents in evidence as official documents, as documents made in the usual and ordinary course of business of the agencies concerned.
(2) The testimonial documents were hearsay. The test for reliability is not met where documents are prepared as affidavits for legal proceedings in anticipation of cross-examination, but ultimately none is possible. Moreover the test of necessity was not met. It was alleged that the documents provided similar evidence to that already before the Court from other former visa control officers about the process of examining applicants for admission as immigrants to Canada from Germany. If similar evidence was already before the Court, the test of necessity was not met. Moreover, where necessity is simply expressed in terms of an opportunity to have hearsay evidence admitted, that does not qualify as necessity. At the very least, it must be established that the evidence in question was essential in relation to a matter in issue on which there was not similar evidence already before the Court. The documents in question were within the descriptions of "a record made . . . in contemplation of a legal proceeding", in the case of the affidavits, or "transcripts . . . of evidence taken in the course of another legal proceeding", both of which descriptions appear in subsection 30(10) of the Canada Evidence Act as documents which are specifically excluded from admission under that section of the Act providing for admission of business records. If Parliament was careful to exclude such documents from the exception provided by section 30 to the hearsay rule for qualified business records, it would be inappropriate to admit them on the basis of the principled exception to the common law rule.
(3) The miscellaneous documents were admitted except for the copy of the verdict, and its partial translation to English, of the Munich Regional Court resulting from the trial of Dr. Kurt Christmann. It was the decision of another court in another country, in relation to another person tried under the criminal law then applicable in Germany. While it was a copy of an official record, it was clearly hearsay. It was not relevant and had no probative value to the principal issue.
statutes and regulations judicially considered
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 30 (as am. by S.C. 1994, c. 44, s. 91).
Evidence Act, R.S.O. 1990, c. E.23, s. 35.
Federal Court Act, R.S.C., 1985, c. F-7, s. 53(2).
Federal Court Rules, C.R.C., c. 663, R. 920.
cases judicially considered
applied:
R. v. Khan, [1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92; 79 C.R. (3d) 1; 113 N.R. 53; 41 O.A.C. 353; R. v. Smith, [1992] 2 S.C.R. 915; (1992), 94 D.L.R. (4th) 590; 75 C.C.C. (3d) 257; 15 C.R. (4th) 133; 139 N.R. 323; 55 O.A.C. 321; R. v. B. (K.G.), [1993] 1 S.C.R. 740; (1993), 79 C.C.C. (3d) 257; 19 C.R. (4th) 1; 148 N.R. 241; 61 O.A.C. 1.
considered:
R. v. Grimba and Wilder (1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.).
referred to:
R. v. Anthes Business Forms Ltd. et al. (1974), 19 C.C.C. (2d) 394; 16 C.P.R. (2d) 216 (Ont. H.C.); affd (1975), 10 O.R. (2d) 153; 26 C.C.C. (2d) 349; 20 C.P.R. (2d) 1 (C.A.); affd [1978] 1 S.C.R. 970; (1978), 22 N.R. 541; R. v. Penno (1977), 76 D.L.R. (3d) 529; [1977] 3 W.W.R. 361; 35 C.C.C. (2d) 266; 37 C.R.N.S. 391 (B.C.C.A.); R. v. Martin, [1997] 6 W.W.R. 62; (1997), 152 Sask. R. 164; 8 C.R. (5th) 246; 140 W.A.C. 164 (C.A.); Ares v. Venner, [1970] S.C.R. 608; (1970), 14 D.L.R. (3d) 4; 73 W.W.R. 347; 12 C.R.N.S. 349; Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (1977), 15 O.R. (2d) 750; 76 D.L.R. (3d) 641 (H.C.).
RULING as to the admissibility of certain documents, mainly from archives maintained by foreign governments, tendered as exhibits, on behalf of the Minister in a reference concerning respondent's acquisition of citizenship. The World War II German Army command directives or orders and field unit reports should be produced pursuant to Canada Evidence Act, section 30, subject to any possible future argument in regard to any document concerning relevance or probative value; the testimonial documents, prepared for or provided in Canadian judicial proceedings, including affidavits, the affiants of which were either deceased or unable to testify, transcripts of evidence, and direct and cross-examination of a witness, now deceased, in similar proceedings, should not be admitted; the miscellaneous documents should be admitted except the copy of the verdict, and its partial translation into English, of a German criminal trial of another individual.
appearances:
Peter A. Vita, Q.C. for applicant.
Eric Hafemann for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Eric Hafemann, Kitchener, Ontario for respondent.
The following are the reasons for ruling on documentary evidence rendered in English by
MacKay J.: These reasons confirm those delivered orally in a ruling, made in the course of hearings on September 17, 1998, concerning the admissibility of certain documents, mainly from archives maintained by foreign governments, tendered as exhibits, documentary evidence, on behalf of the applicant Minister. When the hearings began in this reference by the Minister in regard to the acquisition of citizenship by the respondent, counsel for the respondent indicated that there was objection to admission of much of the documentary evidence expected to be tendered on behalf of the applicant Minister, on the ground that it is simply hearsay and not admissible in these proceedings. It was agreed time would be allotted to deal with this objection, and that was done on September 15, 1998.
I here set out in more detail than in my oral reasons at the hearing, where counsel were aware of the documents in issue, a description of the documents concerned and of the affidavits tendered in support of them. In addition, I set out a summary of the arguments of counsel, which were helpful to the Court, and which may facilitate understanding of the issues raised and here dealt with.
On behalf of the Minister a number of documents were tendered as exhibits, in addition to documents which were introduced and identified in the usual manner in the course of examination of witnesses. Among these documents were affidavits of former officers of the Government of Canada, or reports of expert witnesses, who testified in the course of the proceedings, and correspondence or other documents of Canadian government origin, and some of foreign government origin, that were identified by witnesses, including a police officer in his testimony as documents that were shown to the respondent, Mr. Oberlander, in the course of an interview with him in January 1995.
Most of the documents tendered on behalf of the Minister are documents from the records of governments. No objection is raised by the respondent to documents that are of Canadian government origin, or maps introduced and identified by witnesses. Further, the respondent's objection does not relate to documents from German government archives that concern the naturalization process, used in 1994, for acquisition of German citizenship, by Mr. Oberlander's family, i.e., his mother, his sister and himself, or that relate to and were identified by the witness Hans Huebert as documents concerning his own naturalization for German citizenship. A third general category of the documents tendered by the applicant to which there is no objection by the respondent are the affidavits of archivists, copiers and translators tendered to meet technical requirements of subsection 30(3) of the Canada Evidence Act, R.S.C., 1985, c. C-5, as amended [by S.C. 1994, c. 44, s. 91] (the Act), here relating to government documents, particularly those from foreign sources.
The documents to which counsel for the respondent objects fall into three categories. The majority of them are documents described for convenience as "war documents", said to be originally of German origin, originating in central or field offices of the armed forces or of the police, serving the government of the Third Reich, Germany, during the years 1941 to 1945 in the Second World War. A second category of documents objected to by the respondent I describe as testimonial documents prepared for or provided in Canadian judicial proceedings. A third category concerns a few miscellaneous documents, some of which I note before concluding are admitted on the same basis as the "war documents" or because they have been identified by witnesses in the course of their testimony.
I deal in turn with each of the three categories of documents to which objection is taken. Before doing so it may be helpful to outline the grounds on which the issue of admissibility was argued, at least in regard to the first two categories.
For the Minister it is urged that all of the "war documents" in question are admissible pursuant to section 30 [as am. idem ] of the Act on the basis of the affidavits tendered with the documents and the report of Dr. Manfred Messerschmidt, an expert witness. In the alternative, it is urged that they are admissible pursuant to section 35 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, and in the further alternative that the documents are admissible pursuant to the common law business duty exception to the hearsay rule. Finally, as an ultimate alternative it is urged these documents should be admitted in accord with the "principled exception" to the hearsay rule enunciated by the Supreme Court of Canada in recent cases, including R. v. Kahn , [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1 S.C.R. 740 (cases hereinafter referred to as Kahn, Smith, and K.G.B.).
In regard to the testimonial documents prepared for or provided in Canadian judicial proceedings, the only ground urged for admission of these documents is the principled exception to the hearsay rule, as set out by Kahn, Smith and K.G.B.
War Documents
The war documents in question come from four sources: two of them in the Federal Republic of Germany, which are the Federal German Archives in Koblenz and the Military Archives of the Federal German Archives in Frieburg; and two of them in Russia, the Centre for the Preservation of Historical and Documentary Collections, in Moscow, and the Taganrog Branch of the Roskov Oblast State Archives. Among miscellaneous documents one other war document, a copy of an Army High Command "Award List No. 17 concerning War Service Crosses, 2nd class, with swords", not objected to by the respondent, was from the German Federal Archive, Central Record Office in Aachen"Komelimünster. Two other miscellaneous documents concerning post-war proceedings in the Munich I Regional Court were from the Office of the Munich I Regional Court Public Prosecutor.
Each of the documents in question, except these last three described here as miscellaneous documents, is produced to the Court under reference by affidavits of archivists responsible for their maintenance and custody and by others, attesting to the authenticity of the copy of the document here submitted. Thus, these affidavits attest, for each document, its source in official government archives, the fact that the original cannot be produced to the Court since it is an historic official document maintained within the archives concerned, the circumstances of copying the original and the verification that a true copy has been produced and is now tendered, to the Court. Each affidavit in German or Russian, and each document in German, is translated to English and the affidavit of a translator, accredited by the Translation Bureau of Public Works and Government Services Canada, attests to the accuracy of the translated version. These various affidavits meet the technical requirements of subsection 30(3) of the Act, and there is no objection to admission of the affidavits themselves.
I would describe the war documents in question as directives or orders of the Armed Forces Wehrmacht High Command, or of the Chief of the Security Police and the SD (a security branch for the SS), or of the Army Command or of a local military headquarters; and reports compiled from field unit reports, so-called "event reports USSR", or later reports on activities from occupied eastern territories, compiled regularly on the basis of reports of individual units, and, in accord with central office directives, forwarded up the chain of command to central offices of police and military services.
I deal first with the argument of the Minister that the documents are admissible under statutory or common law exceptions to the hearsay rule. For the applicant, the Minister, it is submitted that the documents in issue are admissible, first, pursuant to section 30 of the Canada Evidence Act, which provides, in part:
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.
. . .
(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.
. . .
(6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.
. . .
(10) Nothing in this section renders admissible in evidence in any legal proceeding
(a) such part of any record as is proved to be
. . .
(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
. . .
(c) any transcript or recording of evidence taken in the course of another legal proceeding.
. . .
(12) In this section,
"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;
. . .
"legal proceeding" means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration;
"record" includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).
It is urged on behalf of the Minister that subsection 30(1) of the Act should be applied broadly to facilitate the admission of business records as defined in subsection 30(12) that were made in the usual and ordinary course of virtually any activity, whether a business, calling or other undertaking, in this case by government agencies, and whether carried on in Canada or elsewhere, so long as the records refer to a matter in respect of which oral evidence would be admissible. That, it is submitted, includes documents, described as containing double hearsay, that are compiled by one person from information provided by another. Counsel relies upon the decision of Callaghan, Co. Ct. J., as he then was, in R. v. Grimba and Wilder (1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.), where the Court was concerned with the admissibility of fingerprint records, in part obtained from the Federal Bureau of Investigation in Washington, and the testimony of an officer of the FBI who was a fingerprint specialist. The fingerprint documents copied from FBI records were admitted, as copies and as records, pursuant to section 30 of the Act. In dealing with the matter Callaghan, Co. Ct., J. commented in part as follows [at pages 471-473]:
It would appear that the rationale behind that section [i.e. s. 30] for admitting a form of hearsay evidence is the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual businesses, and which are subject to frequent testing and cross-checking. Records thus systematically stored, produced and regularly relied upon should, it would appear under s. 30, not be barred from this Court's consideration simply because they contain hearsay or double hearsay.
. . .
The basic difficulty to which argument was directed in this case, was whether or not the undertaking of the Federal Bureau of Investigation could be considered a "business" within the definition of s. 30(12). It was argued that the ejusdem generis rule should apply to the words "undertaking of any kind carried on in Canada or elsewhere". The ejusdem generis rule should also apply to the words "including any activity or operation carried on or performed in Canada or elsewhere by any government". This in turn would restrict the definition of "business, profession, trade, calling, manufacture or undertaking" of a like kind, namely, an undertaking which would relate to a business, trade, calling or manufacturing business. This, in my view, would be a wholly too restrictive interpretation to attribute to the term "business". The wording of this section is extremely broad, it would appear that Parliament intended that any activity or operation carried on or performed in Canada or elsewhere by "any" government, would come within the scope of this section.
It would appear to me that the generic reference to "any government" would include a foreign government and, accordingly, it would be my view that a branch or agency of the United States of America and the Department of Justice of that Government would qualify under s. 30(12) if the records made were made in the usual course of business of such an agency.
I should also point out it was argued before me that an extra territorial application of this definition would create constitutional as well as numerous problems in assessing and weighing documents from Governments other than the United States, but Parliament has and can legislate with reference to evidence obtained in other jurisdictions as evidenced from s. 23, and furthermore it should be noted that s. 30(6) provides the Court with a vehicle to assess the probative value of documents tendered from Governments elsewhere other than in Canada. It would therefore appear that Parliament considered the problem that was raised by counsel and has provided a remedy for it.
. . .
One argument which did cause me considerable concern, related to the correlation between s. 30(1) and (9). It was argued that Mr. Harper was not qualified to testify because he was neither the maker of the documents nor had original knowledge of the contents of the documents. It goes without saying, Mr. Harper of course has no knowledge of the making of the documents, but in my view, it was intended any person in an official position such as he, with an agency which maintains a record of such documents in the ordinary course of its business, would have the knowledge of the contents of those documents based on his experience in that business, which is required by s-s. (9). Accordingly, I am holding that he is competent to give evidence as to the contents of the documents, having regard to his experience and position with the Federal Bureau of Investigation.
I note that the application of section 30 to include double hearsay in business records as indicated by Callaghan, Co. Ct. J. in R. v. Grimba and Wilder, has been followed in R. v. Anthes Business Forms Ltd. et al. (1974), 19 C.C.C. (2d) 394 (Ont. H.C.); affd. (1975), 10 O.R. (2d) 394 (C.A.); affd. [1978] 1 S.C.R. 970; in R. v. Penno (1977), 76 D.L.R. (3d) 529 (B.C.C.A.); and in R. v. Martin, [1997] 6 W.W.R. 62 (Sask. C.A.).
For the Minister it is submitted that the documents, here described by affidavits of archivists as made in the usual and ordinary course of their business by various agencies, military and police authorities, of Germany, should be admitted. Oral evidence of the content of the documents would be admissible but those providing or compiling the information originally are now unknown and would in all likelihood now be deceased, so that they are not available to testify. In the circumstances the requirements of section 30 are said to be met.
If the Court is concerned about admission of documents, the content of which is double hearsay, it is urged on behalf of the Minister that the documents are admissible pursuant to subsection 53(2) of the Federal Court Act, R.S.C., 1985, c. F-7 as amended, which provides for the admission of evidence, in the Court's discretion, if it is admissible in a superior court of a province in accord with any provincial law, and pursuant to section 35 of the Ontario Evidence Act. The latter provision, for admission in evidence of business records, specifically provides in subsection 35(4) for the admission of double hearsay, by the following words:
35. . . .
(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.
As a further alternative basis for admission of the war documents, counsel submits that they are admissible under the common law exception to the hearsay rule in relation to business records, as set out by the Supreme Court of Canada in Ares v. Venner, [1970] S.C.R. 608. As applied by Griffiths J. in Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (1977), 15 O.R. (2d) 750 (H.C.), the records in issue in this case do not appear on their face, or by evidence, to be records made by persons who had knowledge of all the facts recorded, and if that common law requirement is not met the records would be admissible at most to establish that the authors of the documents had knowledge only of other documents or reports from which the document in issue was made, and not of the truth of the contents. It is not readily apparent to me that all the documents here in question would be admitted pursuant to the common law exception for records made in the usual course of business or activity.
The common law exception urged on behalf of the Minister was not argued on the basis of evidence about the documents and the manner in which they were made, apart from the evidence provided by related affidavits which support them as records made in the usual and ordinary course of the activities of the agencies concerned. Thus, it was not argued that they were admissible under the common law exception in regard to public documents.
For the respondent it was argued that it is not here established that the documents in question should be admitted under the common law exception to the hearsay rule in relation to business records. A number of the traditional requirements of that exception simply are not met, for example, the reports are not of original entries but are compilations from reports of others, and on their face they do not appear to have been made contemporaneously with the events recorded. Moreover, Dr. Messerschmidt, the applicant's expert witness acknowledged that fabrication of some records would not be surprising, so that reliability of the records, in the respondent's submission, should be considered questionable.
In the respondent's view, section 35 of the Ontario Evidence Act provides no better basis for admission of the documents than does section 30 of the Canada Evidence Act and the latter, it is urged, does not provide for their admission. Two principal arguments are raised. First, it is urged that the documents are not in the nature of business records included within section 30. They are documents created in a state of war by agencies that have no relationship to business of any kind as that term would ordinarily be understood. On examination, it is urged, many of the documents will be found to have no relevance to the issues before the Court, and if relevant they have little probative value. Second, it is urged that there is no witness or affiant who has any personal knowledge, not merely concerning the matters recorded in the documents, but also of the process by which the documents were created and maintained. Those who attest to the documents as records created in the usual and ordinary course of business of the agencies concerned are historians or archivists whose knowledge of the documents and the process of their creation is second hand, from the study of history and the records available to them for that purpose.
For the respondent, counsel urged that admitting the war documents, and the others in issue, as exceptions to the hearsay rule, pursuant to the statutory exception urged, or pursuant to the principle exception developed by the Supreme Court of Canada based on Kahn, a matter I discuss below, would extend the exceptions to the hearsay rule beyond those thus far accepted by the courts.
Testimonial documents for or from Canadian judicial proceedings
The documents in question in this group are four. Two are affidavits sworn in preparation for presentation in these proceedings, by Arthur Northcott, a former visa control officer, now deceased, and by Julian Vickerman, a former visa control officer, now disabled and unable to testify. The affidavits were not previously filed in this matter and there was no cross-examination on the affidavits. The other documents tendered by the Minister for admission are transcripts of evidence, the direct and cross-examination of Gerrard Keelan from two reference cases, similar in nature to these proceedings, in which Mr. Keelan, a former visa control officer, now deceased, was a witness on behalf of the Minister.
The sole basis urged for admission of these documents is the principled exception developed by the Supreme Court of Canada in Kahn, Smith and K.G.B., supra. That exception to the hearsay rule may permit admission of hearsay evidence where the circumstances in which a statement was made are such that the statement can be considered to be reliable, and where there is reasonable necessity that the evidence be admitted to support or deny a matter in issue. It is urged that while those cases elaborating the exception all deal with admissibility of oral statements in the context of criminal proceedings, the same principles should here be applied to admit written statements, that is, the affidavits and the transcripts of oral evidence from other proceedings. It is urged the written statements or records of statements by former visa control officers, generally supportive of the evidence of other former officers now before the Court in these proceedings, meet the necessary standards for reliability. Moreover, they should be admitted on the basis of reasonable necessity for otherwise they will not be available to the Court in considering the principal issues to be resolved.
For the respondent this exception is said not to be applicable to admit in evidence the four testimonial documents or the war documents. To admit them would extend accepted exceptions to the hearsay rule. It would implicitly accept, as a basis for necessity, the delay by the Minister in initiating these proceedings. There is no basis to conclude the statements, or documents, were reliable and there is no opportunity for cross-examination of persons making the statements in the case of the testimonial documents, or persons knowledgable, by personal experience, of the process by which the war documents were produced.
The Court's ruling
I find all of the war documents admissible in principle, pursuant to section 30 of the Act, and I directed they be admitted as exhibits for all purposes, subject to argument concerning the reliability and the probative value or weight of any document in relation to the issues at stake in this reference. Further, I find that the four testimonial documents in issue are not admissible and I direct they not be admitted as exhibits.
There are in addition certain miscellaneous documents which I deal with as follows.
1. One document, an "Army High Command Bestowal, list No. 17, 2nd Class War Service Cross" was identified by the expert witness Dr. Messerschmidt and accepted by the respondent, who knew nothing of the document or the list itself, as indicating the award of that war service cross to him, among others. Ultimately there was no objection to the document and it is admitted.
2. A second document, a biographical note with the apparent signature of, and concerning, the witness Hans Huebert, which was not put to him while he was on the stand, is admissible. That document was ultimately not objected to and if relevant, it is admissible on the same bases as the war documents, pursuant to section 30 of the Act.
3. The third miscellaneous document is a copy of a statement in German, and an English translation of that, which is said to constitute a declaration by the respondent given at the German Consulate General in Toronto in 1970 in connection with a preliminary investigation then pending at the Regional Court, Munich I, against former members of the war-time unit known as Einsatzkommando 10a for suspected murder or being accessories to murder. That statement was identified by the respondent as his own, and it is admitted.
4. The fourth and final document in the miscellaneous category is the decision in German, with a partial English translation, from the Office of the Public Prosecutor, Munich Regional Court I, of the juried court verdict following trial of Dr. Kurt Christmann, one-time commander of Einsatzkommando 10a, a verdict dated March 25, 1981, whereby the accused was found guilty of, and sentenced for, "two factually coinciding crimes of aiding and abetting in respect of two crimes of murder in 30 cases each". This last document I find is not admissible. It is the decision of another court in another country, in relation to another person, tried under the criminal law then applicable in Germany. In my view, while it is a copy of an official record, it is clearly hearsay in these proceedings. It is not relevant in so far as I can judge, and it has no probative value to the principal issue before this Court.
As for the war documents in issue, in my opinion, the respondent's objection, that by their nature they should not be contemplated as included in business records "as defined in section 30 of the Act", is met by the plain meaning of the definitions of "records" and of "business" within subsection 30(12). Clearly they are records and in my view the activity in which they are said to have originated are clearly within the broad definition of "business", which provides in part:
30. (12) . . .
"business" means any . . . undertaking of any kind carried on in Canada or elsewhere . . . including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government . . . or by any other body or authority performing a function of government;
The "war documents" in question, while not of a nature readily recognized as typical of a regular business in a commercial sense are, in my opinion, clearly in relation to activities of agencies of government, and in this case key agencies of the German government of the day, its armed forces and its police agencies.
Clearly the documents contain only hearsay, indeed, so-called double hearsay, but they are said to be documents produced in the ordinary course of activities of government agencies concerned with both military and police operations.
It is the statements by affidavits that the documents were produced in the usual and ordinary course of business or activity of the agencies concerned that give rise to the second objection on behalf of the respondent to their admission as evidence. The only evidence that they were produced in the usual and ordinary course of activities of those agencies is that provided by historians and archivists. In other words, they are not and perhaps could not be, qualified as documents that meet the underlying principle of reliability by identification by a person who could testify, or could attest by affidavit, based on his or her personal knowledge of the reporting process said to be the ordinary course of business or activity. That evidence simply is not available here. The only persons available to attest to the original production of the documents in the usual and ordinary course are those historical experts who gain their knowledge secondhand.
I am not prepared to exclude the documents in question on the basis of this objection. In my opinion, the statutory provision, section 30 of the Act, does not require that an attestation that the document is made in the usual and ordinary course, of business or activity of the business or agency concerned, be made by someone who knows that from personal experience and who was involved in the process of producing the document. That suggested requirement may reflect the common law approach to the principle of reliability, but as I read subsection 30(3) it provides for copies of original documents to be admitted on the basis of affidavits of "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 it is made by the person who made the copy". Further, subsection 30(6) permits the Court to "examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record".
No requirement is set out in the Act for personal experience of the affiant with the process of producing the document. In my opinion, it is for the Court to assess on the basis of the affidavits whether the necessary requirement for reliability is met.
In this case, copies of historic documents produced and later maintained by government agencies, and now maintained in national or central government archives in Germany and in Russia are here tendered for admission with covering affidavits of archivists of historians responsible for maintenance of the originals and who have special expertise in identification of official or governmental documents. For example, certain documents in issue are produced in association with the affidavit of Dr. Josef Henke, Archivdirektor at the Federal German Archives in Koblenz, holder of a doctorate degree in modern history, a trained archivist, with responsibilities that have provided exact knowledge of the documents to which his affidavit refers, who avers that the documents he refers to "are official in origin and were produced in the usual and ordinary course of business of various offices of the German Reich government and the NSDAP [the Nazi Party] and were processed by them". Other documents, from the Taganrog Branch of the Rostov Oblast State Archives in Russia are authenticated by affidavit of the archivist responsible for their custody and maintenance and also by affidavit of Dr. Franz Golczewski, a full professor of Eastern European History at the Universität Hamburg, an expert in documents relating to the German occupation of the Ukraine during the Second World War and in the nature of German operations and occupation policy in the Ukraine, who attests that the documents referred to in his affidavit "were made by various agencies of the German SS, Security Police and SD (Security Service) and German military authorities, during the German occupation of the Soviet Union, in the usual and ordinary course of their business". All of the war documents in question are supported by affidavits of this sort.
In my opinion, the expertise of historians provides the necessary threshold reliability for admission of the documents in evidence as official documents, as documents made in the usual and ordinary course of business or activity of the agencies concerned.
Having determined, however, that the wartime documents are admissible pursuant to section 30 of the Canada Evidence Act, I make no decision on the other bases urged on behalf of the Minister for their admission, that is in relation to the Ontario Evidence Act, or in relation to the common law, or in relation to the principled exception identified by the Supreme Court of Canada in recent cases. Had I not determined the admissibility on the basis of section 30, I would have carefully considered the application of the Smith, Khan, K.G.B. exception in light of my assessment of the reliability of the documents as made in the usual and ordinary course of activity of the agencies concerned, and the necessity for admission of the document in this case. But that issue I do not determine.
I turn now to the testimonial documents prepared for this proceeding, which are the two affidavits of Messrs. Northcott and Vickerman, and to the transcripts of testimony offered in other Canadian judicial proceedings, evidence of Mr. Keelan. It was urged on the basis of the principled exception to the hearsay rule enunciated in recent cases by the Supreme Court of Canada that these documents should be admitted. It is said they meet the threshold test of reliability sufficiently to ignore the lack of the possibility of cross-examination in these proceedings, and that they meet the test of necessity since if not admitted the evidence they provide will not be before the Court.
Clearly, in this proceeding these testimonial documents are hearsay. In my opinion, the test for reliability is not met where documents are prepared as affidavits for legal proceedings in anticipation of cross-examination but ultimately none is possible.
Moreover, the test of necessity is not here met, in my opinion, either for the affidavits or the transcripts to be admitted. It is said the documents provide similar evidence to that already before the Court from other former visa control officers about the process of examining applicants for admission as immigrants to Canada from Germany. If similar evidence is now before the Court the test of necessity is not met, in my opinion. Moreover, where necessity is simply expressed in terms of an opportunity to have hearsay evidence admitted, that simply does not qualify as necessity as I read the cases. At the very least it must be established that the evidence in question is essential in relation to a matter in issue on which there is not similar evidence already before the Court.
The documents in question are within the descriptions of "a record made . . . in contemplation of a legal proceeding", in the case of the affidavits of Messrs. Northcott and Vickerman, or "transcripts . . . of evidence taken in the course of another legal proceeding", both of which descriptions appear in subsection 30(10) of the Canada Evidence Act , as documents which are specifically stated not to be admitted under that section of the Act providing for admission of business records.
I appreciate counsel for the applicant does not seek admission of the testimonial documents under section 30. Yet if Parliament was careful to exclude such documents from the exception provided by section 30 to the hearsay rule for qualified business records, it seems to me that it would be inappropriate that they now be admitted on the basis of the principled exception to the common law rule. It is my opinion that the testimonial documents in question are not admissible as evidence in this case, and I so ruled at the hearing.
Conclusion
I confirm directions rendered orally in relation to the documents in question that the applicant Minister seeks to have admitted as evidence. The so-called war documents, identified as numbers 3 to 17, 20 to 27, 60 to 64 and 68 to 75 on the applicant's list of Rule 920 [Federal Court Rules, C.R.C., c. 663] documents produced in accord with the order of December 23, 1997 concerning procedures for these proceedings, are all admitted, subject to any possible future argument in regard to any document concerning relevance or probative value, or both. The testimonial documents, sought by the applicant to be admitted, are not admissible. Those documents are the affidavits of Messrs. Northcott and Vickerman, and the transcripts of testimony of Mr. Keelan from two prior reference proceedings. The miscellaneous documents in question herein are admitted except for number 55, the copy of the verdict, and its partial translation to English, of the Munich Regional Court I resulting from the trial of Dr. Kurt Christmann, dated March 25, 1981.