Canada ( Minister of Citizenship and Immigration ) v. Dueck
T-938-95
Noël J.
19/10/98
4 pp.
Applicant seeking admission through witness of internal report of NKVD, predecessor of Soviet KGB, dated October 1943-Subject-matter extent of atrocities committed by German occupying forces in Selidovka, Ukraine during period relevant to Reference-Applicant not producing affidavit contemplated by Canada Evidence Act, s. 30(3)-Not complying with two requirements of s. 30(3): (1) no document accompanying record stating why not possible or reasonably practical to produce original; (2) no document setting out source from which copy made, attesting to copy's authenticity by person making copy-Each condition prerequisite to admission of evidence under s. 30(3)-As noted in R. v. Andrew, [1986] B.C.J. No. 2447 (S.C.) (QL), requirements of s. 30(3) ought to be strictly adhered to if evidence tendered to be admitted under statutory scheme derogating from common law which would otherwise require strict proof at great inconvenience to all concerned-Having failed to comply with either of these independent statutory requirements, applicant must now bring herself within one of common law exceptions to hearsay rule, none of which allow admission of document unless can satisfy self document prima facie reliable-"Ancient document" exception, as set out in Delgamuuk v. British Columbia (1989), 38 B.C.L.R. (2d) 165 (S.C.) not applicable to NKVD document-This rule, making admissible private documents 30 years old or more, and produced from proper custody, only applicable where document free from suspicion-Suspicion arising in this case due to admission NKVD would have sought to use this document both in prosecution of Germans, local collaborators and for war propaganda-Suspicion also arising from admission NKVD known to use improper investigation methods to extract information "in some cases"-"Public Documents" exception, arising when public document created by public officer under duty impelling him or her to accurately create document, equally inapplicable because trustworthiness inherent in public duty to make record not existing herein-Contrary to situation in R. v. Zundel (1987), 35 D.L.R. (4th) 338 (Ont. C.A.) where "historical" exception applied, not here dealing with event undergoing general scrutiny or which is evidenced by historical treatises-NKVD document only one purporting to record number of victims of Nazism in Selidovka, Ukraine-Witness recognizing from perspective of historian document merely "secondary document"-NKVD document ruled inadmissible-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 30(3) (as am. by S.C. 1994, c. 44, s. 91).