T-2408-96
The Minister of Citizenship and Immigration (Applicant)
v.
Vladimir Katriuk (Respondent)
Indexed as: Canada (Minister of Citizenship and Immigration)v. Katriuk (T.D.)
Trial Division, Nadon J."Ottawa, May 13, 14, 15, 1998 and February 15, 1999; Montréal, May 19, 20, 21, 22, 25, 26, June 15, 16, July 2, 3; Toronto, June 11, 22 and 23, 1998.
Practice — Discovery — Production of documents — Motion for stay of citizenship revocation proceedings on ground of non-disclosure of evidence — Immigration file, including permanent residence application wherein respondent allegedly making false representations routinely destroyed prior to institution of proceedings — Where prosecution losing evidence, Crown must satisfactorily explain what happened to it — Whether reasonable steps taken to preserve evidence consideration as to whether explanation satisfactory — Degree of care depending on degree of relevance — At time of destruction, no indication legal proceedings would be instituted with respect to respondent's immigration, citizenship status — As no allegations of false representation against respondent when file destroyed, evidence not seen as relevant.
Practice — Stay of proceedings — Motion for stay of citizenship revocation proceedings on ground of non-disclosure of evidence; unfairness; fact Rules changed in midst of proceedings — Immigration file, including permanent residence application wherein respondent allegedly making false representations routinely destroyed prior to institution of proceedings — Delay between filing of statement of claim, commencement of these proceedings not detrimental to defendant — Government cannot be faulted for choosing to proceed by revocation proceedings, instead of prosecution for war crimes — Not basis to grant stay that revocation proceedings not instituted against others named in Deschênes Commission Report — No merit to argument change of Rules justifying stay of proceedings.
Evidence — Canada Evidence Act, s. 39 according Crown power to refuse to disclose certain documents in situations where to do so would breach confidence of Queen's Privy Council — Respondent arguing use of s. 39 certificate inappropriate — Once s. 39 certificate issued, not open to Court to review documents to ensure government made reasonable decision — Only way to attack such certificate to attack wording as too vague — No such attack brought — Neither provision nor certificate challenged — As nothing in statute prohibiting use of certificate with respect to situation, proper use of certificate not supporting motion to stay proceedings.
Constitutional law — Charter of Rights — Life, liberty and security — Motion to stay citizenship revocation proceedings — As respondent's life, liberty, security not at stake, Charter, s. 7 not applicable.
Constitutional law — Charter of Rights — Equality Rights — Respondent seeking stay of revocation of citizenship proceedings on ground discriminatory, breach of Charter, s. 15 to bring proceedings against him but not others named in Deschênes Commission Report — No reasonable basis for stay — That Commission may not have sufficient evidence to bring proceedings against everyone allegedly committing criminal acts not preventing Crown from proceeding against those with respect to whom has sufficient evidence.
Crown — Torts — Negligence — Routine destruction of inactive government files does not constitute negligence on government's part — Context: immigration application form destroyed not knowing citizenship revocation would subsequently be sought based on false representations in application.
Citizenship and Immigration — Status in Canada — Citizens — Motion to stay revocation of citizenship proceedings — Motion based on ground of non-disclosure of evidence; unfairness; fact Rules changed in midst of proceedings — Crown's explanation for destruction of evidence satisfactory given perceived relevance of file at time of destruction — Delay between filing statement of claim, unfolding of these proceedings not prejudicial — When multiple avenues of proceeding open to Crown, i.e. criminal prosecution, revocation of citizenship, Crown at liberty to pursue whichever avenue chooses — No basis to grant stay that revocation proceedings not instituted against all those named in Deschênes Commission Report.
This was a motion for a stay of revocation of citizenship proceedings. The first ground was non-disclosure of evidence. The respondent's immigration file, including his application for permanent residence in Canada wherein, according to the applicant, the respondent had made false representations, was destroyed some years prior to the institution of these proceedings. Destruction of inactive government files was routine. The respondent argued that loss of such evidence prejudiced him as it prevented a full answer and defence, contrary to Charter, section 7. He also submitted that such destruction, without examining the nature of the documents, amounted to negligence on the part of the government. It was submitted that in 1958 when the respondent was granted his Canadian citizenship, having disclosed to immigration officials that he had entered Canada under a false name, the government was put on notice that his immigration application was an important document that should be preserved. The respondent also argued that the government's use of a certificate provided for in Canada Evidence Act, section 39 was inappropriate. Section 39 accords the Crown the power to refuse to disclose certain documents in situations where to do so would breach a confidence of the Queen's Privy Council of Canada. Finally, the respondent alleged that delay had exacerbated his non-disclosure problems. He submitted that in 1957, when the respondent notified immigration authorities that he had obtained his immigrant status on the basis of a false name, the authorities were put on notice that there was something wrong with his immigration application and they should have investigated at that stage. In 1951 collaborators were still a prohibited group of persons. The Deschênes Commission Report was issued in 1986. The statement of facts was not filed until October 1996.
The second ground raised by respondent was unfairness of the procedure adopted by the Crown. The respondent argued that the Crown, because it was alleging that the fraud committed by the respondent was in not disclosing that he had committed war crimes or crimes against humanity when he applied to enter Canada, should have pursued the respondent directly on the basis that he had committed such crimes contrary to the Criminal Code. The respondent also submitted that bringing this proceeding against him and not against others named in the Deschênes Commission Report was discriminatory and a violation of Charter, section 15.
The third ground urged in support of this stay application was that the Federal Court Rules had changed in the midst of the proceedings.
Held, the motion should be denied.
(1) As the respondent's "life, liberty and security" were not at stake in these proceedings, Charter, section 7 could not be invoked. These proceedings were civil in nature and consequently the rules of evidence applicable to civil matters were the relevant ones.
Since the respondent's immigration documents were destroyed and not misplaced, the present matter would seem more correctly characterized as the inadvertent destruction of evidence. When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. So long as the explanation is satisfactory, the Crown's constitutional obligation to disclose is discharged. If the explanation does not satisfy the Trial Judge, there will be a breach of the Charter. The main consideration in determining whether the Crown's explanation is satisfactory is whether the Crown or the police took reasonable steps to preserve the evidence for disclosure. Another circumstance is the relevance that the evidence was perceived to have had at the time. As the relevance of the evidence increases, so does the degree of care for its preservation that is expected on the part of the police. Destruction was routine for inactive government files, and at the time of the destruction there was no indication that any legal proceedings would ever be instituted with respect to the respondent's immigration or citizenship status. On the issue of the evidence's relevance, the missing documents would have been equally valuable and determinative to both parties.
Since the respondent was given landed immigrant status in 1951 and granted citizenship in 1958, no government official could be negligent in failing to accord the respondent's immigration application form any further importance. At that time, there were no allegations of false representations against the respondent. There was no reason to see the evidence as being relevant at the time of its destruction. The routine destruction of inactive government files does not constitute negligence on the government's part.
Once a section 39 certificate is issued, it is not open to the Court to review the documents to ensure that the government has made a reasonable decision. The only mode of attacking such a certificate is to attack its wording as being too vague. No such attack was brought, and there was no challenge to the provision itself or to the certificate. As nothing within the statute prohibits the use of such a certificate with respect to the respondent's situation and the portions of the Deschênes Commission Report which were excluded from disclosure by reason of the certificate, the proper use of such a certificate did not support the respondent's motion to stay these proceedings.
The only delay of concern to the Court was that between the filing of the statement of claim in October 1996 and the unfolding of these proceedings in 1997 and 1998. It could not be concluded that the respondent has suffered due to an undue delay in this matter.
The government could not be faulted for choosing to proceed as it did. That a criminal procedure was available was irrelevant. When multiple avenues of proceeding are open to the Crown, the Crown is at liberty to pursue whichever avenue it chooses.
That revocation proceedings were not instituted against all those named in the Deschênes Commission Report was not a reasonable basis upon which to grant a stay. It would be logically inconsistent to say that the Crown cannot institute revocation proceedings against those with respect to whom the Crown believes it has sufficient evidence simply because it does not have sufficient evidence to bring proceedings against everyone who has allegedly committed criminal acts.
There was no merit to the argument that the change of Rules justify a stay in that the new Rules make Mr. Katriuk a defendant instead of a respondent.
| statutes and regulations judicially considered |
| Canada Evidence Act, R.S.C., 1985, c. C-5, s. 39. |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15(1). |
| Citizenship Act, R.S.C., 1985, c. C-29, s. 18. |
| Criminal Code, R.S.C., 1985, c. C-46. |
| Federal Court Rules, C.R.C., c. 663, R. 920. |
| Federal Court Rules, 1998, SOR/98-106, Part 4. |
| cases judicially considered |
| applied: |
| Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149; 142 N.R. 173 (F.C.A.); Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] 2 F.C. 614; (1997), 139 F.T.R. 262; 41 Imm. L.R. (2d) 259 (T.D.); Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493; (1997), 140 F.T.R. 183 (T.D.); R. v. La, [1997] 2 S.C.R. 680; (1997), 200 A.R. 81; 148 D.L.R. (4th) 608; [1997] 8 W.W.R. 1; 51 Alta. L.R. (3d) 181; 116 C.C.C. (3d) 97; 8 C.R. (5th) 155; 213 N.R. 1; R. v. La (H.K.) et al. (1996), 181 A.R. 192 (C.A.); R. v. Finta, [1994] 1 S.C.R. 701; (1994), 112 D.L.R. (4th) 513; 88 C.C.C. (3d) 417; 28 C.R. (4th) 265; 20 C.R.R. (2d) 1; 165 N.R. 1; 70 O.A.C. 241; confg R. v. Finta (1992), 92 D.L.R. (4th) 1; 73 C.C.C. (3d) 65; 14 C.R. (4th) 1; 9 C.R.R. (2d) 91; 53 O.A.C. 1 (Ont. C.A.). |
| distinguished: |
| R. v. Carosella, [1997] 1 S.C.R. 80; (1997), 142 D.L.R. (4th) 595; 112 C.C.C. (3d) 289; 4 C.R. (5th) 139; 41 C.R.R. (2d) 189; 98 O.A.C. 81; 207 N.R. 321. |
| considered: |
| Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143; [1989] 5 W.W.R. 1; 77 Sask. R. 94; 89 CLLC 17,027 (Sask. C.A.). |
| referred to: |
| Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 483; (1996), 110 F.T.R. 1 (T.D.). |
| authors cited |
| Canada. Commission of Inquiry on War Criminals. Report. Ottawa: Supply and Services Canada, 1986 (Commissioner: J. Deschênes). |
MOTION for a stay of proceedings, on various grounds, in a citizenship revocation reference. Motion denied.
| appearances: |
| David Lucas and Martine Valois for applicant. |
| Orest H. T. Rudzik and Nestor Woychyshyn for respondent. |
| solicitors of record: |
| Deputy Attorney General of Canada for applicant. |
| Orest H. T. Rudzik, Toronto, for respondent. |
The following are the reasons for order rendered in English by
[1]Nadon J.: On January 29, 1999, I issued two orders. One of these orders dismissed the respondent's motion for a stay of these proceedings. These are my reasons for that order.
[2]The respondent brought a motion for a stay of these proceedings on the following grounds: non-disclosure of evidence; fairness of the proceedings; and the fact that the Federal Court Rules had changed mid-way through these proceedings.
[3]Under the ground of non-disclosure of evidence, counsel argued that the destruction and/or loss of documents on the part of the government prejudiced his client who was unable to present a full answer and defence, contrary to section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). This argument arises from the fact that the respondent's immigration file, including his application for permanent residence in Canada wherein, according to the Minister he made false representations, had been destroyed some years prior to the institution of these proceedings. There is no direct evidence surrounding the destruction of this particular file, however, the evidence shows that destruction was routine for inactive government files and that, at the time of the destruction, there was no indication that any legal proceedings would ever be instituted with respect to Mr. Katriuk's immigration or citizenship status. It is the respondent's position that such destruction, without regard to what was being destroyed, i.e. without examining the nature of the documents, amounts to negligence on the part of the government. Counsel added that by 1958, when Mr. Katriuk was given his Canadian citizenship and had disclosed to immigration officials that he had entered Canada under a false name, the government was on notice that his application for immigration was an important document and it should therefore have been preserved.
[4]In support of his motion for a stay, counsel relied on the decision of the Supreme Court of Canada in R. v. Carosella, [1997] 1 S.C.R. 80. The issue in Carosella was the effect of the intentional destruction of notes taken during an interview between a counsellor of the Sexual Assault Crisis Centre (the Centre) and the complainant. The interview occurred prior to the complainant contacting the police. The destruction of the notes occurred prior to any application being brought before the Court for their production and was done pursuant to the Centre's general policy of destroying the contents of files when the police were involved. The Centre admitted that its policy was put in place specifically to avoid having to produce such notes to the courts. The shredding of the notes was done without the consent or prior knowledge of the complainant who had agreed to the release of the notes. Sopinka J., writing for the majority of five judges, states, at page 100:
. . . entitlement of an accused person to production whether from the Crown or third parties is a constitutional right. See R. v. Stinchcombe, [1991] 3 S.C.R. 325 and R. v. O'Connor, [1995] 4 S.C.R. 411. Breach of this right entitles the accused person to a remedy under s. 24(1) of the Charter. Remedies range from one or several adjournments to a stay of proceedings. To require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would be affected by the absence of material which the accused has not seen.
[5]In my view, neither the Supreme Court's decision in Carosella, nor section 7 of the Charter, are applicable in the present matter. In Luitjens v. Canada (Secretary of State) (1992), 9 C.R.R. (2d) 149, Linden J.A., speaking for the Federal Court of Appeal, explained that section 7 of the Charter did not apply to proceedings under section 18 of the Citizenship Act, R.S.C., 1985, c. C-29. At page 152, he says:
I am of the view that s. 7 does not render s. 18(3) of no force and effect. First, at the time of the decision of the Court, at least, s. 7 was not engaged in that there was not yet any deprivation of Mr. Luitjens' "life, liberty and security of the person". All that was decided by the trial judge was the fact that Mr. Luitjens obtained his Canadian citizenship by false representation. This finding may well form the basis of decisions by others, which may interfere with those rights at some future time, but this decision does not do so. Therefore, it is merely one stage of a proceeding which may or may not result in a final revocation of citizenship and deportation or extradition.
[6]In Canada (Minister of Citizenship and Immigration) v. Dueck, [1998] 2 F.C. 614 (T.D.), the respondent applied for directions in respect of the reference under section 18 of the Citizenship Act. The respondent argued that, since the revocation proceedings instituted by the Minister were a guise under which to prosecute him for alleged war crimes, he should be afforded the procedural, evidentiary and Charter protections normally reserved for the criminal process. Noël J., in reaching his conclusion, described the nature of revocation proceedings as non-punitive at page 633 of his decision:
The taking back by the state of a privilege on the ground that it was originally acquired by fraud based on a remedy provided by statute for that sole purpose is not punishment. The remedy involved is no more punitive than would be, for instance, the one pursued by an insurance company which sues an insured to obtain the cancellation of a policy on the ground that it was originally obtained by fraud, misrepresentation, or as a result of the willful omission of a material fact. In both cases, the remedy is limited to taking back that to which there was never any entitlement.
[7]Mr. Justice Noël agreed with the view taken by Madam Justice McGillis in Canada (Minister of Citizenship and Immigration) v. Copeland, [1998] 2 F.C. 493 (T.D.) that revocation proceedings are civil in nature. At page 510, McGillis J. states:
. . . I am satisfied that the basic interpretive principles enunciated in Ahani v. Canada, supra, are applicable to citizenship matters. I have therefore concluded that the scope of the proceedings under section 18 of the Citizenship Act must be analysed in the context of principles and policies underlying immigration and citizenship law, and not in the criminal law context. Indeed, as indicated earlier, a judge conducting a reference under section 18 of the Citizenship Act makes only a factual finding concerning the circumstances under which a person obtained his Canadian citizenship. To paraphrase my words in Ahani v. Canada, supra, that factual finding is purely and simply a citizenship matter. In the circumstances, I agree with Collier J. in Canada (Secretary of State) v. Luitjens, supra, that a reference conducted under section 18 of the Citizenship Act is in the nature of a civil proceeding in which the civil standard of proof applies.
[8]As the respondent's "life, liberty and security" are not at stake in these proceedings, section 7 of the Charter cannot be invoked. These proceedings are civil in nature and consequently, the rules of evidence applicable to civil matters are the relevant rules.
[9]In any event, even if I am wrong, I am still of the view that Carosella is of no help to the respondent. In Carosella, the Court's decision stems from the Centre's decision to obstruct the course of justice by deliberately destroying the contents of its files. In R. v. La, [1997] 2 S.C.R. 680, Mr. Justice Sopinka who delivered the reasons of the majority in Carosella makes this crystal clear at pages 693-694:
The appellant sought to draw a parallel between this case and Carosella which was released immediately before the hearing of this appeal. The two cases, however, are clearly distinguishable. In Carosella, the documents which were destroyed were relevant and subject to disclosure under the test in O'Connor, supra. The conduct of the Sexual Assault Crisis Centre destroyed the accused's right under the Charter to have those documents produced. That amounted to a serious breach of the accused's constitutional rights and a stay was, in the particular circumstances, the only appropriate remedy. Where, however, the evidence has been inadvertently lost, the same concerns about the deliberate frustration of the court's jurisdiction over the admission of evidence do not arise. As the following passage from the majority judgment (at para. 56) attests, we expressly distinguished the case from the lost evidence cases generally:
| The justice system functions best and instils public confidence in its decisions when its processes are able to make available all relevant evidence which is not excluded by some overriding public policy. Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justice by systematically destroying evidence which the practices of the court might require to be produced. This decision is not one for the agency to make. Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced or admitted is for the courts. It is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally. [Emphasis added.] |
[10]In R. v. La, Sopinka J., for the majority, distinguishes cases where there is an intentional destruction of evidence and "lost evidence cases". In the present matter, the documents sought, through no deliberate action on the part of the Crown, are simply not available for production. Although not a "lost evidence case" per se , since the respondent's immigration documents were destroyed and not misplaced, the present matter would seem more correctly characterized as the inadvertent and not deliberate destruction of evidence and, thus, it is more appropriate to apply the analysis espoused in R. v. La than the analysis provided in Carosella.
[11]In R. v. La, the Crown had relevant evidence in its possession which it later lost. The police found the complainant, a 13-year-old runaway, in the vehicle of a man who was subsequently charged with sexual assault. Prior to the commencement of the criminal investigation, the complainant had a 45-minute taped conversation with the police in preparation for a secure treatment application. Because the conversation was being taped, the constable only took written notes of the complainant's date of birth, address and phone numbers. However, the constable testified at Family Court, in making his application for a secure treatment order, that the taped interview related to the complainant's life on the run and her forced entry into prostitution. At the time of the preliminary inquiry, the constable had forgotten about the initial taped conversation with the complainant and then, between the date of the interview and the trial, misplaced the tape. However, close to a week after the taped interview, the constable asked the complainant and two girls he discovered to have been part of the same prostitution network to fill out police witness statement forms asking them to describe their life on the street and he followed the forms up with a pre-typed list of questions. The trial Judge stayed the proceedings based on a finding that the Crown failed to disclose the initial tape. The Alberta Court of Appeal [(1996), 181 A.R. 192] allowed an appeal and ordered a new trial and the Supreme Court of Canada dismissed the appeal.
[12]The five-judge majority of the Supreme Court of Canada found that the duty of disclosure was a distinct right that fell within the principle of fundamental justice encompassed in section 7 of the Charter and its breach resulted in a constitutional violation. As a result, there was no burden on the party seeking a stay to demonstrate that the undisclosed material caused prejudice to the accused. In other words, the breach of the duty of disclosure alone resulted in a contravention of the accused's right to present full answer and defence.
[13]Sopinka J., speaking for the majority, described the test for lost evidence cases at pages 684-685:
I find that when the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. So long as the explanation is satisfactory, it discharges the Crown's constitutional obligation to disclose. There will, however, be a breach of the Canadian Charter of Rights and Freedoms if the explanation does not satisfy the trial judge. Moreover, I would not rule out a remedy in the extraordinary case in which a satisfactory explanation is given for the loss of evidence and no abuse of process is found, but the evidence is so important that its loss renders a fair trial problematic.
[14]Sopinka J. elaborated on the factors used to determine whether the Crown had fulfilled its duty to explain what happened to the evidence at page 691:
In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.
[15]The evidence adduced by the Minister herein showed that destruction was routine for inactive government files and that, at the time of the destruction, there was no indication that any legal proceedings would ever be instituted with respect to the respondent's immigration or citizenship status. On the issue of the evidence's relevance, the missing documents would have been equally valuable and determinative to both parties. The respondent's visa application was not available to either party, therefore both parties suffered from its absence. If the document contained no misinformation other than the false name, this would have helped the respondent. On the other hand, if, as the Crown contended, the document contained false statements with respect to Mr. Katriuk's activities during the war years, it would have helped the Crown's case. In any event, the content of the application is the very issue with which we are here concerned and, unlike the Trial Judge in Carosella, I am unable to conclude that it is likely that the documents would have been of any greater benefit to the respondent than to the Crown.
[16]Since the respondent was given landed immigrant status in 1951 and granted citizenship in 1958, I fail to see how any government official could be negligent in failing to accord the respondent's immigration application form any further importance. At that time, there were no allegations of false representations against the respondent, nor had the respondent's name yet been mentioned in connection with allegations such as those contained in the Deschênes Commission [Commission of Inquiry on War Criminals] documents. As such, there was no reason to see the evidence as being relevant at the time of its destruction. In any event, I am not satisfied that routine destruction of inactive government files constitutes negligence on the part of the government.
[17]Consequently, the respondent's arguments based on section 7 of the Charter and on the Supreme Court's decision in Carosella cannot succeed.
[18]Also under the category of non-disclosure, counsel for the respondent argued that the government's use of a certificate provided for in section 39 of the Canada Evidence Act, R.S.C., 1985, c. C-5 was inappropriate in the circumstances. Section 39 of the Canada Evidence Act reads:
39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen's Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.
(2) For the purpose of subsection (1), "a confidence of the Queen's Privy Council for Canada" includes, without restricting the generality thereof, information contained in:
| (a) a memorandum the purpose of which is to present proposals or recommendations to Council; |
| (b) a discussion paper the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions; |
| (c) an agendum of Council or a record recording deliberations or decisions of Council; |
| (d) a record used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; |
| (e) a record the purpose of which is to brief Ministers of the Crown in relation to matters that are brought before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d); and |
| (f) draft legislation. |
(3) For the purposes of subsection (2), "Council" means the Queen's Privy Council for Canada, committees of the Queen's Privy Council for Canada, Cabinet and committees of Cabinet.
(4) Subsection (1) does not apply in respect of
| (a) a confidence of the Queen's Privy Council for Canada that has been in existence for more than twenty years; or |
| (b) a discussion paper described in paragraph (2)(b) |
| (i) if the decisions to which the discussion paper relates have been made public, or |
| (ii) where the decisions have not been made public, if four years have passed since the decisions were made. |
[19]Counsel for the respondent did not attack the constitutionality of this provision. In fact, counsel conceded that in many, if not most situations, section 39 could be used appropriately by the Crown. However, counsel argues that, in this case, its use was inappropriate.
[20]There are no inherent limitations within section 39 which make its use inappropriate in these circumstances. No constitutional challenge was brought against the provision. Had a constitutional challenge been brought, and had it been shown that Mr. Katriuk's constitutional rights had been violated, this may have been sufficient to grant a constitutional remedy. Counsel chose not to take this course of action and this decision means that I can only apply the provision as it reads. Section 39 accords the Crown the power to refuse to disclose certain documents in situations where to do so would breach a confidence of the Queen's Privy Council for Canada. Once a section 39 certificate is issued, it is not open to the Court to review the documents to ensure that the government has made a reasonable decision. The only mode of attacking such a certificate is to attack its wording as being too vague, as was done in Samson Indian Nation and Band v. Canada, [1996] 2 F.C. 483 (T.D.). No such attack was brought in this case and, in the end, there was no challenge either to the provision itself or to the certificate. As nothing within the statute prohibits the use of such a certificate with respect to Mr. Katriuk's situation and the portions of the Deschênes Commission Report for which counsel sought disclosure and which were excluded from disclosure by reason of the certificate, the proper use of such a certificate does not support the respondent's motion to stay these proceedings.
[21]Finally, under the heading of non-disclosure, the respondent cited delay as something which exacerbated his non-disclosure problems. In 1957, when Mr. Katriuk notified immigration officials that he had obtained his immigrant status on the basis of a false name, the authorities were put on notice that there was something wrong with his immigration application and they should have investigated at that stage. All of the testimony from RCMP witnesses called by the Crown was to the effect that in 1951, collaborators were still a prohibited group of persons. The Deschênes Commission Report was issued in 1986. The statement of facts was not filed with this Court until October 1996.
[22]Counsel for the respondent focused primarily on the prejudice suffered by Mr. Katriuk. In this vein, counsel cited to the Court a passage from the judgment of Vancise J.A. in Saskatchewan Human Rights Commission v. Kodellas (1989), 60 D.L.R. (4th) 143 (Sask. C.A.), at pages 179-180:
In my opinion, to determine whether there has been unreasonable delay in the context of s. 7, or put another way, whether there has been an infringement of the right to be tried within a reasonable period of time, it is necessary to consider the following:
. . .
| (4) Prejudice to the accused or wrongdoer. Here one must not only consider the impairment of the ability to make full answer and defence, but the effect of the delay on the wrongdoer, including the anxiety caused by the uncertainty and the disruption of his family and social relationships. |
[23]There is a difference between the point in time when the alleged wrong came to the attention of the authorities, about 1986, the point in time when the authorities chose to begin proceedings against the wrongdoer, 1996, and the point in time of the unfolding of the proceedings, 1997-1998. As the Minister has demonstrated that Mr. Katriuk obtained his citizenship by concealing material circumstances, any suffering by Mr. Katriuk will be the result of his own making. The only period of delay with which I am concerned is the period between the filing of the statement of claim in October 1996 and the unfolding of these proceedings in 1997 and 1998. I cannot conclude that the respondent has suffered due to an undue delay in this matter.
[24]In R. v. Finta, [1994] 1 S.C.R. 701, the accused was charged with committing war crimes or crimes against humanity under the Criminal Code [R.S.C., 1985, c. C-46] with respect to acts he allegedly committed in Hungary during World War II at a concentration camp. The accused was acquitted at trial and the Crown appealed to the Ontario Court of Appeal [(1992), 92 D.L.R. (4th) 1] and then to the Supreme Court of Canada. The accused cross-appealed and one of the grounds of the cross-appeal was that the pre-charge delay violated his rights.
[25]Lamer C.J. stated that the appeal having been dismissed, the cross-appeal was moot. La Forest J., writing for himself, L'Heureux-Dubé and McLachlin JJ. in dissent, having found the appeal to have merit, wrote the following with respect to the delay issue at page 786:
The respondent also attempts to argue that the 45-odd years that have elapsed between the alleged commission of the offences and the charging of Mr. Finta constitutes a violation of his Charter guarantees. This contention has no merit. This Court has already held that pre-charge delay, at most, may in certain circumstances have an influence on the assessment of whether post-charge delay is unreasonable but of itself is not counted in determining the delay; see R. v. Morin, [1992] 1 S.C.R. 771, at p. 789. More commonly, pre-charge delay is not given any weight in this assessment; see R. v. Kalanj, [1989] 1 S.C.R.1594. The Charter does not insulate accused persons from prosecution solely on the basis of the time that has elapsed between the commission of the offence and the laying of the charge; see R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at p. 1100.
[26]Cory J., with whom Gonthier and Major JJ. agreed on this point, stated at pages 874-875:
The respondent argues that this Court should extend the principles set out in R. v. Askov, [1990] 2 S.C.R. 1199, to the situation of pre-charge delay. He argues that since 45 years have elapsed between the date of the actions giving rise to the charges and the date of trial, there is bound to be prejudice . . . .
In the present case, I am unable to see any merit in the respondent's arguments that he suffered prejudice as a result of the pre-charge delay. Indeed, it is far more likely that the delay was more prejudicial to the Crown's case than it was [to] that of the defence. Defence counsel was entitled to argue that the witnesses' memories had become blurred with the passage of 45 years. Further, the documentary and physical evidence that the respondent now complains is not available was probably destroyed during World War II. Thus it is difficult to accept the respondent's assertion that any documentary or physical evidence that would have been available within a few years after the war has since been lost. Additionally, any prejudice occasioned by the death of witnesses that could have helped the defence was substantially reduced by the admission of the Dallos statements.
With regard to the post-charge delay, less than a year passed from the time when the legislation was proclaimed in force to when the indictment was preferred. In light of the amount of investigatory work that had to be done before any charges could be laid, this seems to be a minimal and very reasonable period of delay.
[27]The second ground raised by counsel for the respondent upon which to stay these proceedings is the unfairness of the procedure chosen by the Crown. The thrust of counsel's argument is that the Crown, because it was alleging that the fraud committed by Mr. Katriuk was in not disclosing that he had committed war crimes or crimes against humanity when he applied to enter Canada, should have pursued Mr. Katriuk directly on the basis that he had committed such crimes using the Criminal Code provisions. In a criminal proceeding, the Crown's burden of proving its allegations is raised from proving its case on a balance of probabilities to establishing it beyond a reasonable doubt. In a criminal proceeding, the respondent would have been able to invoke all of the safeguards found in the criminal law process, including the Charter.
[28]I cannot fault the government for choosing to proceed in the manner in which it has. The fact that a criminal procedure was available to the Crown is irrelevant. By bringing its case against the respondent in the manner in which it has, the Crown has in effect rendered the issue of whether the respondent committed war crimes irrelevant. The issue in these proceedings is whether the respondent obtained his citizenship by fraud or by concealing material circumstances. Even if the respondent did not commit any crimes during the war, proving that he either gave false information or concealed material circumstances regarding his activities during the war period is sufficient to establish the allegations in this case. Does this amount to a wrongdoing on the part of the Crown so that these proceedings against the respondent should be stayed? Certainly not. When multiple avenues of proceeding are open to the Crown, the Crown is at liberty to pursue whichever avenue it chooses. I know of no legal principle which dictates otherwise. Again, there was no constitutional attack brought against the provisions of the law which permit the Crown to proceed in the manner it has chosen.
[29]Counsel for Mr. Katriuk also submitted that bringing this proceeding against Mr. Katriuk and not against others named in the Deschênes Commission Report was discriminatory and hence a violation of subsection 15(1) of the Charter. There is no merit to this argument. There is no reasonable basis to grant a stay simply because revocation proceedings were not instituted against all those who were named in the Deschênes Commission Report. Perhaps the Crown has insufficient evidence with respect to the others. However, it would be logically inconsistent to say that the Crown cannot institute revocation proceedings against those with respect to whom the Crown believes it has sufficient evidence simply because it does not have sufficient evidence to bring proceedings against everyone who has allegedly committed criminal acts.
[30]The third ground upon which the respondent seeks a stay is that the Federal Court Rules (the Rules) changed in the midst of these proceedings. However, after carefully reviewing the arguments put forth by counsel for both parties, I am unable to see any merit in the argument that the change of Rules should lead me to stay these proceedings because the Rules make a defendant out of Mr. Katriuk as opposed to a respondent.
[31]The change in the Rules, however, does lead to an interesting issue with respect to costs. Prior to the changes in the Rules, Rule 920 [Federal Court Rules, C.R.C., c. 663] did not allow the Court to grant costs to either party. However, since revocation proceedings under section 18 of the Citizenship Act now fall under Part 4"Actions (rule 169 and following) [Federal Court Rules, 1998 , SOR/98-106], this means that costs may be awarded against either party. For this reason, as I indicated in my decision concerning the main issue, the parties shall be free to bring on a motion for costs at a date and time to be fixed by the Registrar.
[32]For these reasons, the respondent's motion for a stay of these proceedings was denied.