Canada ( Minister of Citizenship and Immigration ) v. Kisluk
T-300-97
Lutfy J.
4/8/98
10 pp.
Application to admit signed statements of two deceased Ukrainian citizens as hearsay evidence-Statements obtained in 1994 by RCMP corporal during investigation into respondent's activities during World War II-Statements sought to be entered into evidence through testimony of corporal, interpreters-Admissibility of hearsay evidence determined in accordance with Supreme Court of Canada's teachings concerning requirements of necessity, reliability where traditional exceptions perhaps not directly applicable-Statements obtained 50 years after events-Neither interviewer, interviewees spoke, understanding other's language-Interviews not akin to court proceeding-Neither video nor audio recording of interviews-No verbatim transcript of questions, answers-Signed statements unsworn, although "caution" referring to Ukrainian Code of Criminal Procedure, Criminal Code signed at outset of interviews-Implying obligation to testify truthfully; refusal to testify subject to period of corrective labour, fine-Contradiction between part of caution warning of consequences of refusing to testify and voluntary participation described by corporal-Such confusion making it impossible to appreciate what witness really understood in signing caution-Caution of little value in enhancing reliability of statements-Neither interpreters nor corporal recalling much of interviews-Comparison of corporal's personal notes, English translation of signed statements revealing omissions rendering signed statements less complete, reliable than corporal's notes-Hearsay evidence bearing none of indicia of reliability set out in recent decisions-Absence of oath complicated by confusion in caution-Absence of mechanical recording rendering impossible assessment of differences between police officer's notes and those of interpreter-If discrepancies in notes cannot be verified, cannot determine whether hearsay statements made under circumstances substantially negating declarant mistaken: R. v. Smith, [1992] 2 S.C.R. 915-Influence of Ukrainian state security officials only shortly after collapse of Soviet Union on interviewee cannot be tested through crossexamination-In assessing reliability of hearsay evidence, judge has right to review statement, but may choose not to do so-Process surrounding acquisition of statements so far short of meeting requirement of reliability, Lutfy J. deciding not to review statements beyond portions adduced in evidence-Not satisfied interviewees having "peculiar means of knowledge" (R. v. Khan, [1990] 2 S.C.R. 531), meaning something other than any person purporting to have direct knowledge of any event-Not convinced review of entire statements might change negative assessment of reliability-Two-stage process, appropriate herein, may not be so in other situations.