Date: 20030716
Docket: T-2016-01
Citation No.: 2003 FC 875
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
MICHAEL SEIFERT
Defendant
(Delivered from the Bench in Vancouver,
British Columbia on July 9, 2003)
[1] This is a multi-part motion brought by the defendant in these citizenship revocation proceedings. Other parts of the motion have been dealt with by previous orders and directions issued by me and the present reasons and the order which will issue deal only with that part of the motion which seeks "an order that the defendant is not fit to stand trial".
[2] I questioned Mr. Christie as to the source of the authority for such an order and he was not able to give me any. In fact, in my view, I am quite satisfied that as a matter of law, such an order cannot be obtained in proceedings of this sort. These are, as has been many times held by this Court and the Court of Appeal, civil proceedings and the applicable criminal law provisions relating to incapacity to stand trial simply do not apply in these proceedings.
[3] The only rules of this Court which might be applicable would be Rules 115 and 121 dealing with persons suffering from a disability and the provisions of the rules dealing with such persons, make it clear, in my view, that the proper course for friends or family of someone who is brought into this Court as a defendant, but who is suffering from such disability and that person is incapable of instructing counsel, is to move to have a litigation guardian appointed to that person. That is not what has been sought here and for reasons which will appear shortly, it is not something that I would, in any event, be prepared to grant.
[4] What, as it appeared on the argument of the motion, Mr. Christie was really seeking was an order for the stay of these proceedings. The authority for that type of order is, of course, section 50 of the Federal Court Act. It is, in my view, quite clear from a reading of the Obodzinsky (Canada v. Obodzinsky, [2000] F.C.J. No. 1675 (Oct 12, 2000), (T.D.), affirmed [2001] F.C.J. No. 797 (C.A.) (QL)) and Fast (Canada v. Fast [2002] 3 F.C. 373 (T.D.), 2001 FCT 1269, [2001] F.C.J. No. 1730 (QL), affirmed [2002] 3 F.C. 400(C.A.), [2001] F.C.J. No. 1786 (QL)) cases, both of which were confirmed by the Court of Appeal and both of which are binding upon me, that a stay is not an appropriate order in a case such as this, where it is said that defendant in citizenship revocation proceedings is incapable of conducting his defence or of instructing counsel to conduct it.
[5] Even, however, assuming that I have the power to grant a stay of these proceedings, I would not, on the record presently before me, grant one. The defendant's case relies entirely on the evidence of one Dr. Larre and the neuropsychological testing which he conducted . The results of those tests conducted by Dr. Larre are simply incompatible with the objective evidence that the defendant is capable of recalling and recounting the events of almost 60 years ago which lie at the base of these proceedings and of instructing counsel with regard thereto.
[6] That is not a conclusion which I have come to entirely on my own, it is supported by the evidence of other qualified medical practitioners who, notwithstanding extensive cross-examination which is before me, concluded that in fact, Mr. Seifert was capable of instructing counsel and of conducting his defence. While it is not binding upon me, the conclusion I have reached is also entirely compatible, indeed identical with the one reached by Mr. Justice Romilly of the Supreme Court of British Columbia in parallel proceedings currently taking place under the Extradition Act. I quote here brief passages from paragraphs 129 and 150 of his reasons:
Dr. Larre, however, seemed so convinced that his figures obtained in his testing of the respondent were right that at times he seemed to have lost his objectivity. In his testimony before me, he seemed to take criticism from the other experts as a personal affront to his integrity. In my view, his slavish adherence to his test results seemed to have affected his judgement with respect to his ultimate opinion.
.....
Keeping in mind the limited threshold required in determining whether one is fit to stand triall at an extradition hearing, as enunciated in Mustafa, supra, I am satisfied that the Respondent is fit to take part in his extradition hearing. On the basis of the evidence introduced on this hearing, the Respondent has certainly not established on a balance of probabilities that he is presently unfit to stand trial. On the evidence adduced at this hearing, I find that the Respondent understands the nature or object of the proceedings, understands the possible consequences of the proceedings, is able to communicate with his counsel, and can recount to counsel the necessary facts relating to the offence in such a way that counsel can properly present a defence.
On the basis of the foregoing, I find that the Respondent is fit to have his extradition hearing heard.
1Republic of Italy v Seifert, 2003 BCSC 501, [2003] B.C. J. No. 726 (QL) at paras 129, 150 (QL)
[7] Assuming that a stay could be granted in this case, and as I have already indicated, in my view, the law would absolutely deny such a stay, the threshold for the grant of it would be even lower than that in extradition proceedings and that threshold clearly has not been met here.
[8] I would only add that, while no doubt the neuro-psychologist who conducted the tests for the defendant, Dr. Larre, believes passionately in the accuracy of those tests, I share the quoted view expressed by Mr. Justice Romilly that the doctor's conduct on his cross-examination in this case, demonstrates that he lacks a degree of objectivity which would entitle the Court to rely upon his evidence.
[9] Accordingly, the motion will be dismissed.
Judge
Ottawa, Ontario
July 16, 2003
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2016-01
STYLE OF CAUSE: The Minister of Citizenship and Immigration v.
Michael Seifert
DATE OF HEARING: July 9, 2003
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: July 16, 2003
APPEARANCES:
Barney Brucker, Beverly Wilton
and Helen Park FOR PLAINTIFF
Douglas Christie FOR DEFENDANT
SOLICITORS ON THE RECORD:
Morris A. Rosenberg
Deputy Attorney General of Canada FOR PLAINTIFF
Mr. Douglas Christie
Victoria, British Columbia FOR DEFENDANT