Ottawa, Ontario, February 17, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
REASONS FOR ORDER ANDORDER
[1] It came to light after the taking of commission evidence in this proceeding that there were two gaps in the transcript. These resulted from two brief interruptions in the electrical supply for the transcription equipment. No one is to be faulted.
[2] Nevertheless, I must decide what, if any, ramifications flow from this problem. The defendant argues that there has been a breach of natural justice and a failure to comply with a mandatory requirement under the Federal Courts Rules, 1998, SOR/78-172. Rule 89(4) requires court reporters to record evidence "word for word". Accordingly, the defendant maintains that I must declare a mistrial. In the alternative, he submits that there should be an entire re-hearing of the commission evidence. In the further alternative, he suggests that the witnesses whose testimony was not recorded in its entirety should be re-examined. The plaintiff argues that the gaps are minor and can be filled by my notes of the testimony with little, if any, impact on the proceedings as a whole.
[3] I have concluded that, in the circumstances, the gaps should not result in a mistrial or a rehearing of any of the commission evidence. I must emphasize, however, that I do not regard the omissions as trivial. They could have an effect on the fact-finding process. However, given the quantity of evidence taken in this case, the thoroughness of the examination and cross-examination of the witnesses, especially those who testified on the commission, and the existence of my own notes of the testimony, I do not expect any such effect to be substantial.
[4] I have attached as Schedule A and Schedule B summaries of my notes of the evidence taken during the two gaps in the transcript.
I. The extent of the gaps
(i) Examination and cross-examination of Ms. Luciano Menici
[5] Ms. Menici testified that she was a prisoner in the women's block at the Bolzano camp. On October 3, 2005, counsel for the plaintiff showed the witness some photographs of men and asked her if she recognized any of them. She said that one of them was a camp guard named "Misha".
[6] At 12:15 p.m., she was asked if she had been shown those photographs before. At that point, there is a gap in the transcript lasting until the lunch break was taken at 12:30 p.m. The court reporter noted that counsel for the defendant began to cross-examine Ms. Menici at approximately 12:17 p.m. My notes of Ms. Menici's testimony between 12:15 and 12:30 are attached as Schedule A.
(ii) Cross-examination of Mr. Mario Vecchia
[7] Mr. Vecchia testified that he was a prisoner at the Bolzano camp. He described an incident during his time at the camp when three prisoners were tied to posts. During cross-examination, he was asked about the location of that incident and the position from which he viewed it.
[8] At 4:05 on the afternoon of October 4, 2005, counsel for the defendant asked Mr. Vecchia "And where was your block in relation to . . . them?" At that point, there is a gap in the transcript. When the transcript resumes at 4:12, Mr. Vecchia was being asked about a prior statement. My notes of Mr. Veechia's testimony between 4:05 and 4:12 are attached as Schedule B.
II. Consequences of a gap in the transcript
[9] Counsel have cited to me numerous cases dealing with the consequences of a gap in a tribunal's record, or the complete absence of a record. Most of these cases are not strictly applicable because they address the situation where a person's right to judicial review or to an appeal is compromised by the absence of a complete record in the court or tribunal below.
[10] However, that is not the situation before me. I have not been provided any authority that specifies the consequences that flow from a gap in the record discovered during a trial. This may well be because, in the typical trial, it would be relatively easy to correct an omission by recalling a witness. In the situation before me, to do so would be very difficult. The witnesses whose testimony was not fully recorded reside in Italy. Their evidence was taken on commission in Italy because they are elderly and unable to travel to Canada to testify. Returning to Italy to re-examine them would be costly, time-consuming and inconvenient. I make these observations only to distinguish this case from the usual trial, not to suggest that cost or inconvenience would be sufficient grounds on their own for denying the defendant the relief he seeks. If I were persuaded that the defendant had been denied natural justice, I would fashion an appropriate remedy. Cost and inconvenience would be of little significance.
[11] While the cases cited to me were not strictly applicable to these circumstances, I can derive from them the following guiding principles :
· The "overriding issue is fairness to the defendant": Canada(Minister of Citizenship and Immigration) v. Fast, 2002 FCT 269, [2002] 4 F.C. 584, (T.D.) (QL) at para. 19;
· There is no failure to comply with a requirement to record testimony when "mechanical equipment had malfunctioned through no one's fault": R. v. Harvey, [1978] 2 W.W.R. 479, 39 C.C.C. (2d) 198, at para. 3;
· It is only where there is ambiguity in a statutory rule that a court should interpret it according to subjective standards of reasonableness in order to avoid unreasonable consequences: R. v. Boylan , [1979] 3 W.W.R. 435, 3 Sask. R. 157, 8 C.R. (3d) 36, 46 C.C.C. (2d) 415;
· In the criminal context, the failure to record evidence at a preliminary inquiry, which is required by statute, would deny the accused an opportunity to challenge the committal for trial by way of judicial review. Even so, when a portion of the evidence has not been recorded due to the malfunctioning of a recording device, the court must decide whether there has been non-compliance with the statutory duty or "merely imperfect compliance, which could be cured": R. v. Boylan, above, at para. 32.
· Still, a person's rights cannot "be subject to machines functioning properly": R. v. Gaudet, [1981] 35 N.B.R. (2d) 512, 88 A.P.R. 152, at para. 11.
· An otherwise fair hearing does not become unfair because it is not recorded; in other words, a verbatim record of the proceedings is not a condition precedent to a good trial and a good judgment": Kandiah v. Canada(Minister of Employment & Immigration, [1992] F.C.J. No. 321 (FCA) (QL), at para. 7;
· Where a recording is required by law, "natural justice may require a transcript". Even so, "a recording need not be perfect to ensure the fairness of the proceedings": Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, at para. 81; Okeynan v. Canada (Prince Albert Penitentiary), [1988] F.C.J. No. 261 (T.D.) (QL), at p. 2; Desjardins v. Canada(National Parole Board), [1989] F.C.J. No. 910 (T.D.) (QL), at p. 6.
· "A new trial need not be ordered for every gap in a transcript": R. v. Hayes, [1989] 1 S.C.R. 44, at para. 10.
[12] Applying these principles to the circumstances before me, I conclude that the defendant's right to a fair hearing has not been infringed. I accept the defendant's argument that Rule 89(4) is mandatory. However, I do not agree that all omissions in the record give rise to a mistrial or a re-hearing of evidence. Each case must be considered on its own facts. Here, the gaps are relatively brief and my notes of the testimony during them are fairly detailed. So long as I am mindful of the possibility that short gaps in the verbatim record of two witnesses' testimony may affect the fact-finding process, and I take care to ensure that the defendant benefits from any doubts that arise from the omissions, or that cannot be resolved because of them, the defendant's rights and interests will be preserved.
ORDER
THIS COURT ORDERS that:
1. The defendant's request for a mistrial or a re-hearing of evidence is denied.
Schedule A
Notes of Ms. Menici's testimony between 12:15 and 12:30 p.m. on October 3, 2005
Examination by Mr. Brucker:
- was shown those photos by Dr. Constantini
- recognized Misha easily (as did her husband)
- never saw those photos before that time
Cross-examination by Mr. Christie:
Q: Were you asked to make a statement on 15 Jan. 2000?
- not sure - had been contacted before 2000, but not sure exactly when; perhaps 1998
- in Brescia, the political police summoned her to talk about concentration camp
- not sure who it was - not a caribinieri; was in plain clothes
- did not sign a statement then, but was interviewed
- not shown photos of camp or persons
- was only for purposes of determining whether she was at Balzano
- was contacted by telephone
- did not tape conversation - it was short
- told caller that they had been there
- was told that they had contacted the family that had been at Bolzano - she said that she knew them
- was asked if they would testify - they said yes
Q: Did you ever record any of your observations from the camp between 1945 and that conversation?
- no, but helped a historian prepare her story and that of her father
- was published in Brescia by Mimo Francinelli
- has read other books by him
- doesn't believe he wrote anything about defendant
- she read the portion of his book about Bolzano
- is a credible author, completely neutral
Q: Giving her a statement she made on Jan. 15, 2000 in Italian (Doc. 605) to read over lunch break.
Break: 12:30 p.m.
Schedule B
Notes of testimony of Mr. Vecchia's testimony between 4:05 and 4:12 p.m. on October 4, 2005
Cross-examination by Mr. Christie:
Q: Where were you in relation to prisoners tied to posts?
- witness repeats earlier testimony about where his block was and where the posts were - outside dangerous prisoners block
- was standing nearby, not outside his block
Q: Did you mention the dragging incident to anyone between 1944 and 1996?
- no
- didn't mention this in 1996 because he was asked about Haage
Q: You didn't mention two Ukrainians or what Haage said in your 2nd statement in 1996?
- only talked about them when specifically asked about Ukrainians
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: T-2016-01
STYLE OF CAUSE: MCI v. SEIFERT
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 9-10, 2006
REASONS FOR ORDER
APPEARANCES:
Barney Brucker FOR THE PLAINTIFF
ouglas Christie Douglas H. Christie FOR THE DEFENDANT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE PLAINTIFF
Deputy Attorney General of Canada
Toronto, Ontario
Victoria, B.C. FOR THE DEFENDANT