Date:
20051117
Docket:
T-639-05
Citation:
2005 FC 1542
BETWEEN:
GAÉTAN
PLANTE
Applicant
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS
FOR ORDER
PINARD J.
[1] This is a motion, heard by teleconference,
by the applicant appealing from the order made on June 9, 2005 by Prothonotary
Morneau, disposing of a number of incidental motions relating to his
application for judicial review. The application is aimed at setting aside the
decision by the Appeal Division of the National Parole Board (NPB) delivered on
December 11, 2003.
*
* * * * * * *
[2] The applicant has been in prison since
December 23, 1982, and his warrant of committal will expire on June 3, 2007.
[3] His statutory release date was April 24,
2002, but the NPB prohibited his release on November 12, 2003.
[4] On December 11, 2003, the Appeal Division of
the NPB dismissed the applicant’s appeal and upheld the decision of the
NPB.
[5] On April 11, 2005, the applicant applied for
judicial review of the decision of the Appeal Division of the NPB.
[6] In the months that followed, the applicant
filed a number of incidental motions, which Prothonotary Morneau disposed of in
the order that is the subject of the present appeal. The order includes the following
elements:
- the applicant may
substitute for his application for judicial review dated March 18, 2004, an
application for judicial review dated April 11, 2005, because the application
dated April 11, 2005 is essentially a typewritten version of his application
dated March 18, 2004;
- only the Attorney
General of Canada, and no other entity, will now have to appear as respondent
in the style of cause for any proceeding to be served and filed in this case;
- the applicant’s motion to have
his applicant’s record prepared by the administrator is dismissed, since the
applicant has demonstrated that he is fully capable of preparing it himself;
- the applicant’s motion for
special management of this proceeding is granted;
- the applicant’s motion for
permission to file a memorandum of more than 30 pages is granted. He may file a
memorandum of no more than 45 pages;
- the applicant’s request for
documents under sections 317 and 318 of the Federal Court Rules, 1998,
SOR/98-106, is dismissed. The panoply of documents listed by the respondent,
ranging from April 1982 to October 2004, is not necessarily relevant to
the judicial review of the December 11, 2003 decision by the Appeal Division;
- any other motion
or application in the nature of a motion in this matter by either party is
dismissed;
- the applicant
will have up to ten days, following the receipt of any document from the
federal tribunal involved, in which to serve and file an affidavit under
section 306 of the Rules, and the periods in sections 307 et seq. of the
Rules will be counted from the date of such service or following the expiration
of the period provided therein.
[7] Furthermore, the prothonotary reminded both
parties—and especially the applicant—that they must avoid writing letters to
the Court like those received that were invariably lengthy and tedious to
read. The parties were to keep their requests to the Court to a minimum and
proceed, if necessary, by way of motion properly moved under the Rules.
*
* * * * * * *
[8] Judges hearing appeals against discretionary
orders of prothonotaries ought not exercise their own discretionary powers to
hear the matter de novo unless:
(a) the orders are
clearly wrong, in the sense that the exercise of discretion by the prothonotary
was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise
questions vital to the final issue of the case (Canada v. Aqua-Gem
Investments Ltd., [1993] 2 F.C. 425 (C.A.)).
[9] In my opinion, nothing in the present order
raises questions vital to the final issue of the case. Furthermore, I cannot
say from the evidence that the order under appeal is clearly wrong. In this
respect, I am generally in agreement with the respondent’s written
submissions contained in the respondent’s motion record. The applicant’s claim that the
prothonotary should not have accepted the documents supplied by the respondent
under section 317 of the Rules, because they were [TRANSLATION] “neither sworn
nor certified copies of the originals” is particularly groundless. Section 318
of the Rules does stipulate that the documents transmitted must be “a certified copy”. Apparently,
when Mr Frappier, Regional Manager of the National Parole Board’s Conditional
Release Programs, wrote that the documents were [TRANSLATION] “true copies of
the documents or of copies of documents included in the NPB file”, the documents
were certified as true copies of documents in the NPB file. In my opinion, it
is not necessary for the documents to then be certified true copies of the
original documents; it is sufficient if the documents provided are true copies
of the documents considered by the NPB in making its decision.
[10] Consequently, the intervention of this Court
is not warranted with respect to the actual disposition by the prothonotary of
the incidental motions submitted to him by the applicant.
[11] Turning to the allegations of collusion
between counsel for the respondent and the Federal Court of Canada, I find that
these allegations are unfounded. On this point, it seems more plausible that,
if counsel for the respondent used the style of cause “Plante v.
Attorney General of Canada” in its correspondence even though that style of
cause had not yet been amended by the Court, it was a clerical error based on
the habit of identifying the Attorney General of Canada as the respondent in
similar applications for judicial review. There is nothing else in the
evidence to suggest that counsel for the respondent had been informed of the
prothonotary’s order in the matter before it was delivered on June 9, 2005.
[12] Finally, the applicant’s request that Prothonotary Morneau be
disqualified from hearing the appeal is clearly unacceptable. I agree,
however, that I should consider the applicant’s arguments on this point as an
allegation of reasonable apprehension of bias undermining the decision in
question. Here again, the evidence does not allow me to intervene. In this
matter, we must consider the presumption of impartiality. A real likelihood of
bias must be established. In other words, the apprehension must be both
logical, that is, based on valid grounds, and objective. It must be
entertained by a person who is sensible, not a quibbler, who is neither
over-scrupulous nor anxious, naturally apprehensive or readily inclined to blame
others. The person must be well informed, because he or she has viewed the
matter devoid of all emotionalism (see Canada (M.N.R.) v . Mathers, 2001
FCT 241).
[13] In the present case, the involvement of
Prothonotary Morneau in a case concerning the applicant, while the former
practised for the Department of Justice, dates back over ten years. There is
nothing in the evidence to identify in this respect any ground whatsoever on
which it could be said that Prothonotary Morneau has demonstrated a lack of
objectivity. Furthermore, Prothonotary Morneau is not a party to the dispute
and has no personal interest in it. Applying to this case the principles
defined in Mathers, supra, I am unable to find a
reasonable apprehension of bias on the part of Prothonotary Morneau.
[14] For these reasons, the intervention of the
Court is not warranted, and the applicant’s motion is dismissed with costs.
Judge
OTTAWA, ONTARIO
November 17,
2005
Certified
true translation
Michael
Palles
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: T-639-05
STYLE OF CAUSE: GAÉTAN PLANTE v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November
2, 2005
REASONS FOR ORDER BY: The Honourable Mr.
Justice Pinard
DATED: November
17, 2005
APPEARANCES:
Gaétan Plante THE
APPLICANT, ON HIS OWN BEHALF
Dominique Guimond FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
Gaétan Plante THE
APPLICANT, ON HIS OWN BEHALF
Ste-Anne-des-Plaines,
Quebec
John H. Sims, Q.C. FOR
THE RESPONDENT
Deputy Attorney
General of Canada
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