Digests

Canada (Minister of Citizenship and Immigration) v. Singh

T-2755-95

2002 FCT 861, Gibson J.

14/8/02

17 pp.

Motions on behalf of applicant on reference relating to revocation of respondent's citizenship--Motions to amend order that Court Administrator issue commission to take evidence in India from 21 witnesses, by deleting 3 names from list, substituting 3 other names; pursuant to Federal Court Rules, r. 273, that evidence taken on Commission in India in March, 2002 be introduced into record on reference-- Reference proceeding commenced in December, 1995-- Certain of named officials no longer occupied identified positions--Since only evidence required through those officials confirmation of certified copies of certain original records maintained by them, counsel for applicant notified Court, counsel for respondent that would be necessary to substitute for named witnesses current office holders--Issues whether Court, as now constituted, has authority to amend original order of December, 1998 by substituting names of current office holders for names of holders of same or equivalent offices at date of order, letter of request; what would be impact of such amending order; what would be outcome dictated by appropriate balance among interests of justice at stake on motions (ensuring access to Canadian citizenship not abused, ensuring Court respects extraordinary permission granted to it by foreign state, providing fair process to persons such as respondent herein in conduct of reference)--Original order, letter of request not spent--Of 21 witnesses identified in order, letter of request, evidence of only 13, 3 of them substituted, heard in India--At least in theory, either counsel could request resumption of Commission to hear evidence of one or more of remaining 8 witnesses--Therefore, order, letter of request remain operative, capable of amendment--Court not functus--Court not satisfied that, without amendment of accession granted by Government of India to extend scope of accession to scope of any amendment or order, letter of request, amendment by Court would not be meaningless--No reason to suspect that testimony of substitute witnesses would have been any different from that of original named witnesses--Not unreasonable to expect that hearing testimony of substituted witnesses by Court, albeit technically outside this Court's authority granted by accession of Government of India, nothing more than reasonable process having regard to economics of travelling from Canada to India to take Commission evidence--Therefore, not likelier than not that amendment of order, letter of request would be meaningless, unjustified--As to interests of justice at stake, important that reference proceeding such as this have before it record consisting of totality of best evidence available--At same time, important to ensure that permission to take Commission evidence on foreign soil respected, not abused--Interests of justice favour reception of evidence of substituted witnesses into record in reference proceeding only if taking of that evidence in India formally acceded to, after fact, by Government of India--Order amended to substitute names of witnesses whose evidence actually taken on Commission, although not named in original order, to instruct preparation, issuance of further letter of request in relation to substituted names; accepting into evidence in revocation proceedings testimony, exhibits of substituted witnesses only if, within one year from date of present order, Government of India has acceded to amendment of its accession to conform to supplementary letter of request--Federal Court Rules, 1998, SOR/98-106, r. 273.