Canada (Minister of Citizenship and Immigration) v. Oberlander, (1998) 153 F.T.R. 11 (TD)

• Judge: MacKay, J.
• Court: Federal Court (Canada)
• Case Date: September 27, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1998), 153 F.T.R. 11 (TD)

Can. (M.C.I.) v. Oberlander (1998), 153 F.T.R. 11 (TD)

MLB headnote and full text

Temp. Cite: [1998] F.T.R. TBEd. OC.048

In The Matter of revocation of citizenship pursuant to sections 10 and 18 of the Citizenship Act, R.S.C. 1985, c. 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.

The Minister of Citizenship and Immigration (applicant) v. Helmut Oberlander (respondent)

(T-866-95)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Oberlander

Federal Court of Canada

Trial Division

MacKay, J.

September 30, 1998.

Summary:

The Minister of Citizenship and Immigra­tion sought to revoke Oberlander's perma­nent residency and Canadian citizenship, alleging false representations, fraud or con­cealment of material circumstances and referred the matter under s. 18(1)(b) of the Citizenship Act. Oberlander objected to the admission of documentary evidence expected to be tendered by the Minister. Hearings were held to determine the admissibility of the documents.

The Federal Court of Canada, Trial Divi­sion, determined the admissibility of the documents.

Editor's Note: For related cases see 116 F.T.R. 69, [1997] F.T.R. Uned. 611, [1997] F.T.R. Uned. 632, [1997] F.T.R. Uned. 635, [1997] F.T.R. Uned. 637, [1997] F.T.R. Uned. 762, 206 N.R. 191, 208 N.R. 21, 208 N.R. 49 and 218 N.R. 81.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - In a reference concerning Oberlander's citizen­ship, the Minister sought to admit several documents based on the principled ex­ception to the hearsay rule set out by the S.C.C. cases Khan, Smith and K.G.B. - The documents included affidavits sworn for these proceedings by a now deceased affiant and another who was disabled and unable to testify - They also included the transcript evidence of a now deceased former visa control officer from two simi­lar reference cases - The Federal Court of Canada, Trial Division, held that these documents were inadmissible - The docu­ments provided similar evidence to that already before the court - Therefore, the necessity test was not met - See para­graphs 36 to 38.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - In a reference concerning Oberlander's citizen­ship, the Minister sought to admit several documents based on the principled excep­tion to the hearsay rule set out by the S.C.C. cases Khan, Smith and K.G.B. - The documents included affidavits sworn for these proceedings by a now deceased affiant and another who was disabled and unable to testify - They also included the transcript evidence of a now deceased former visa control officer from two simi­lar reference cases - The Federal Court of Canada, Trial Division, held that these documents were inadmissible - The relia­bility test was not met where documents were prepared as affidavits for legal pro­ceedings in anticipation of cross-examin­ation but ultimately none was possible - See paragraphs 36 to 38.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - In a reference concerning Oberlander's citizen­ship, the Minister sought to admit several documents based on the principled excep­tion to the hearsay rule set out by the S.C.C. cases Khan, Smith and K.G.B. (necessity and reliability) - The documents included two previously unfiled affidavits sworn for these proceedings and transcript evidence of a former visa control officer from two similar reference cases - The Federal Court of Canada, Trial Division, stated that Parliament was careful in s. 30(10) of the Canada Evidence Act to exclude these type of documents from the exception provided by s. 30 to the hearsay rule for qualified business records - There­fore, it was inappropriate that they now be admitted on the basis of the prin­cipled exception to the common law rule - See paragraphs 36 to 40.

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - In a reference con­cerning the revocation of his citizenship, Oberlander objected to the admission of "war docu­ments" by the Minister which came from archives in the Federal Repub­lic of Ger­many and Russia - The docu­ments were military directives or orders and reports - The Federal Court of Canada, Trial Divi­sion, held that these documents were ad­missible in principle pursuant to s. 30 of the Canada Evidence Act - They were "records" and the activity in which they were said to have originated was clearly within the broad definition of "business" (s. 30(12)) - The archivists attested that they were produced in the ordinary course of activities of these gov­ernment agencies -See paragraphs 25 to 29.

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - Oberlander objected to the admission by the Minister, in a reference concerning his citizenship, of military directives or orders and reports which came from archives in the Federal Repub­lic of Germany and Russia - The Federal Court of Canada, Trial Division, held that s. 30 of the Canada Evidence Act did not "... require that an attestation that the docu­ment was 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" - The historians' expertise provided the necessary threshold reliability for the admission of the documents in evidence - See para­graphs 30 to 35.

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - [See third Evidence - Topic 1527 ].

Evidence - Topic 1584

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Condi­tions to admission - [See second Evidence - Topic 1582 ].

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 7].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 7].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1; 79 C.C.C.(3d) 257; 19 C.R.(4th) 1, refd to. [para. 7].

R. v. Grimba et al. (1977), 38 C.C.C.(2d) 469 (Ont. Co. Ct.), refd to. [para. 13].

R. v. Anthes Business Forms Ltd. et al. (1974), 22 N.R. 589; 19 C.C.C.(2d) 394 (Ont. H.C.), affd. (1975), 22 N.R. 547; 26 C.C.C.(2d) 349 (Ont. C.A.), affd. [1978] 1 S.C.R. 970; 22 N.R. 541, refd to. [para. 14].

R. v. Penno (1977), 35 C.C.C.(2d) 266 (B.C.C.A.), refd to. [para. 14].

R. v. Martin (A.), [1997] 6 W.W.R. 62; 152 Sask.R. 164; 140 W.A.C. 164 (C.A.), refd to. [para. 14].

Ares v. Venner, [1970] S.C.R. 608; 12 C.R.N.S. 349; 73 W.W.R.(N.S.) 347; 14 D.L.R.(3d) 4, refd to. [para. 17].

Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 15 O.R.(2d) 750; 76 D.L.R.(3d) 641 (H.C.), refd to. [para. 17].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30(1), sect. 30(3), sect. 30(6), sect. 30(10), sect. 30(12) [para. 12].

Counsel:

Peter Vita, Q.C., for the applicant;

Eric Hafemann, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the applicant;

Eric Hafemann, Kitchener, Ontario, for the respondent.

This matter was heard at Kitchener, Ontario, on September 27, 1998, before MacKay, J., of the Federal Court of Canada, Trial Division, who delivered oral reasons for the ruling on that date. The following written reasons were delivered on September 30, 1998.