Date: 20010123
Docket: T-211-00
OTTAWA, ONTARIO, THE 23rd DAY OF JANUARY, 2001
PRESENT: THE HONOURABLE EDMOND P. BLANCHARD
BETWEEN:
DAVID CLARE VAN VLYMEN,
Applicant
- and -
SOLICITOR GENERAL OF CANADA,
Respondent
REASONS FOR ORDER AND ORDER
[1] On November 17, 2000, the applicant served and filed his submissions on status review, asking this Court that the proceedings be permitted to continue and that the Respondent be required to file a formal objection under Rule 318 (2) of the Federal Court Rules, 1998 SOR/98-106.
[1] On December 8, 2000, I ordered that the application be continued and that the respondent, pursuant to Rule 318 (2) and (3) of the Federal Court Rules, 1998, file a formal objection setting out reasons for failure to comply with the plaintiff's request made under Rule 317 of the Federal Court Rules, 1998, as set out in the February 2, 2000 application.
[1] On December 28, 2000, the Respondent submitted that it has complied with the request made pursuant to Rule 317 of the Federal Court Rules, 1998. Furthermore, the respondent submitted that the material requested in no way bears on the issue before the Court. The respondent submits that given the principal relief has in fact been obtained - the applicant has been transferred from the United States to Canada - the sole remaining issue can be determined without regard to the facts of this particular case.
[1] The respondent further submitted that the material requested in no way bears on the issue before the Court. The applicant is conducting an expedition which has no limit. Further, the material sought relating to when, from whom and in what manner material was received by the respondent respecting the applicant's transfer application, is subject to privilege, privacy interests of third parties, and an overriding public interest against disclosure.
[1] Although the respondent advances that the requested material is subject to privilege, privacy interests of third parties, and an overriding interest against disclosure, there is nothing before the Court to substantiate such a claim and to satisfy the Court that the material should be treated as confidential or as material subject to privilege.
[1] The respondent further submitted that the material requested is also unnecessary to the remainder of relief claimed specifically to that sought in paragraph 5 on page 4 of the notice of application. The respondent respectfully submits that the claim contained therein is moot as the applicant has been transferred. As well, in the absence of a claim for damages such a declaration is of no utility whatsoever.
| (5) A declaration that the Respondent Minister has failed to comply with s.7 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly to provide him with the "case against" him so as to give him a fair opportunity to respond; |
[1] On May 3rd, 2000, upon a motion on behalf of the respondent for an order striking out the applicant's notice of application, Prothonotary Hargrave stated:
| (...) [W]hile the principal issue, that of transfer of the Plaintiff to an institution in Canada, was accomplished after the action was commenced and is thus moot, there remain substantial issues and an adversarial climate in which to resolve those issues, the resolution of which will affect or which may affect the rights of the Plaintiff.1 |
[1] I accept the reasoning of Prothonotary Hargrave, there are outstanding issues, and their resolution may well affect the rights of the plaintiff. Pursuant to Rule 318 (4) of the Federal Court Rules, 1998 documents should be produced.
[1] Furthermore, in the notice of application at page 3, paragraph 4, the applicant seeks a declaration that his constitutional rights have been violated by the respondent Minister since approximately January 1991 when the United States of America approved his transfer back to Canada. The remedy sought by the application is under s. 24(1) of the Canadian Charter of Rights and Freedoms. The materials requested may well be pertinent and appropriate for consideration in determining such an issue.
| (4) A declaration that the constitutional rights of the Applicant, pursuant to s.6 of the Canadian Charter of Rights and Freedoms have been violated by the Respondent Minister since approximately January, 1991 when the United States of America approved his transfer back to Canada and that therefore the Applicant is entitled to an appropriate and just remedy pursuant to s.24(1) of the Charter including, an Order for his immediate transfer back to Canada pursuant to the terms of the Transfer of Offenders Act and the applicable Treaty or Convention between Canada and the United States of America; |
[1] Having reviewed the record before me and weighed the objection brought forward by the respondent I am convinced that the Court should reject the respondent's objection to produce any further material.
[1] For these reasons, the respondent should forward to the Registry all relevant material in its possession that it has in regard to and has relied upon in considering, studying and reviewing as well as reprocessing the applicant's case pursuant to its jurisdiction under the Transfer of Offenders Act and Regulations thereof.
ORDER
THIS COURT ORDERS:
| 1. The respondent forward to the Registry all relevant material in its possession that it has in regard to and has relied upon in considering, studying and reviewing as well as reprocessing the applicant's case pursuant to its jurisdiction under the Transfer of Offenders Act and Regulations thereof. |
| 2. Costs to the applicant. |
"Edmond P. Blanchard"
Judge
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1 Order of Prothonotary John A. Hargrave, May 3rd, 2000 in file T-211-00.
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