CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Canada (Minister of Citizenship and Immigration) v. Seifert
T-2016-01
2004 FC 1711, O'Reilly J.
7/12/04
6 pp.
Minister requesting amendment to order providing for taking of commission evidence in Italy--Originally Minister sought to proceed under Convention between the United Kingdom and the Kingdom of Italy regarding Legal Proceedings in Civil and Commercial Matters, Art. 12--Now seeking to proceed under Art. 11--Art. 11 not providing process for compelling witnesses to appear before commission; witnesses giving evidence before Art. 11 commission cannot be prosecuted for perjury--According to affidavit evidence, Art. 12 commission would sit in each of districts in which witnesses reside--As no way to coordinate sittings, several trips to Italy likely required--Art. 11 commission could sit in central location convenient for witnesses and hear them in single session--Defendant's objections: (1) evidence weak; (2) Art. 11 commission unfair because absence of power to compel witnesses could result in appearances of only most vindictive witnesses; potential for criminal prosecution important means of preventing perjury; (3) Federal Court Rules, 1998, r. 272(2) requirement commission witnesses be examined in binding manner under law of jurisdiction in which evidence taken, meaning commission evidence can only be taken if commission has power to compel attendance, witnesses liable to perjury charges--(1) Minister, as representative of Government of Canada, state party to treaty, not required to provide substantial proof of grounds for invoking particular section of treaty--(2) Second objection speculative--Defendant has remedies, e.g. Art. 13 contemplating compelling attendance; little weight likely to be accorded to testimony of witness unwilling to be cross-examined; defendant can request commission evidence be taken of favourable witnesses-- Extradition to, prosecution in Canada possibility--That evidence under oath or solemn affirmation primary means of encouraging truthfulness--(3) R. 272(2) requirement met by obligation to demand that witnesses before commission give evidence on oath or solemn affirmation--Request granted-- Convention between the United Kingdom and the Kingdom of Italy regarding Legal Proceedings in Civil and Commercial Matters, [1935] Can.T.S. No. 14, Arts. 11, 12--Federal Court Rules, 1998, SOR/98-106, r. 272(2).