Date: 20110428
Docket: T-696-11
Citation: 2011
FC 498
Ottawa, Ontario, April 28, 2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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KATHLEEN TROTTER
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Applicant
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and
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AUDITOR GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
application that is before this Court addresses issues that are of the utmost
importance to our democracy. In issue are the scope and breadth of Charter
rights, as well as the Auditor General’s interpretation of its statutory
mandate.
[2]
As it will
be seen, this Order is not about the Court unduly refusing to “join the
political fray” or taking an unjustifiably formalistic approach. It is about
the responsible acquittal of judicial duties in interpreting the Constitution,
something expediting the proceedings cannot accomplish. If this application
would have been served and filed in the week following April 11, 2011, the
Court would have dealt with the matter.
[3]
At this
stage, the Court is asked to expedite the application and render judgment
before the general election of May 2, 2011. This application seeks to make
public the Auditor General’s report on the Government’s G8 Infrastructure Fund.
This report was to be tabled before Parliament on April 5, 2011, had a general
election not been called.
[4]
The merits
of seeking the publication of the Auditor General’s report are not the
questions that are incumbent upon the Court to resolve at this stage. Rather,
the real question in a motion for an expedited hearing is illustrated by the
criteria the jurisprudence has established as required to warrant an expedited
hearing.
[5]
Some of these
factors have been set out in Canada (Minister of Citizenship and
Immigration) v Dragan, 2003 FCA 139, as the following: (a) Harm will result
if the hearing is not expedited; (b) A timetable can be agreed upon which is
convenient to the Court and counsel for the parties for the hearing of the
appeal; and (c) the appeal will not be heard to the detriment of others whose
matters have already been scheduled for hearing. Courts have also recognized
other factors: whether the Application becomes moot if not heard expeditiously;
and whether the matter is urgent (Canadian Wheat Board v Canada (Attorney General), 2007 FC 39).
[6]
Furthermore,
the public interest in proceeding, and the Respondent’s prejudice have been stated
anew recently as factors to be considered by the Court when assessing if an
application should proceed on an expedited basis (May v CBC/Radio Canada, 2011 FCA 130).
[7]
Inherent
to all these factors is the nature of the application itself. In this respect,
it should be noted that Charter applications must be given the full weighing
they deserve. Surely, constitutional issues deserve complete and detailed
materials for the Court, as guardian of the rule of law, to analyze the issues
at hand and exercise its judicial duties. This is what is implied by the
Supreme Court when it forewarns courts on proceeding on constitutional matters
without adequate evidentiary records before them (British Columbia (Attorney General) v Christie, 2007 SCC 21, at para 28).
[8]
Firstly,
it can be said that the Attorney General should be named as a Respondent in the
Application. Counsel for the Applicant indicated that the materials were served
to the Attorney General as well as the current Respondent. Counsel for the
Applicant also argued that, in the case at bar, the question was not one of
whether the Auditor General Act, RSC 1985, c A-17 is unconstitutional in
light of alleged Charter breaches. Rather, it is argued that the matter is
whether the Auditor General incorrectly interpreted the statute, and whether
Charter values contained in sections 2(b) and 3 should have been interpretative
aids in the exercise of “her discretion” (if she has any) to arrive at a proper
interpretation of her legislative mandate.
[9]
With
respect, framing the issue and deliberately confining it in the matter
suggested by the Applicant is a matter to be determined by the determination of
the application itself. The debate should not be unduly constrained in the
motion for an expedited hearing.
[10]
Also, the
Attorney General may wish to meaningfully participate in the debates arising
from the application. Very recently, Justice Marc Nadon of the Federal Court of
Appeal has stated that justifying the constitutionality of laws remains the
duty of the Attorney General (May, above, at para 18).
[11]
Whether
the application truly challenges the constitutionality of the law is not
something that is clear at this stage, as the Applicant’s written and oral representations
made by counsel considerably differ in this respect. This also is not
favourable to proceeding on an expedited basis, as the piecemeal submissions
provided thus far differ as to whether remedies are sought under section 24(1)
of the Charter or under other declaratory grounds.
[12]
In the
present matter, the timeframe in which the Applicant seeks to have the matter
adjudicated is extremely brief. The Application itself was filed on the morning
of Tuesday, April 26, 2011. The motion for the application to proceed
expeditiously was filed in the late afternoon on the same day. The Court held
the hearing on the motion on Wednesday, April 27, 2011. Thus, some steps remain
unheeded: the Respondent must file a complete and detailed response to the
application itself, the Attorney General may participate; the Applicant could
file a reply memorandum, though likely would not; a hearing where all the
parties are to be heard must be held; careful research and analysis must be
conducted by the Court, etc. Also, the Respondent’s position may prove to be
more nuanced and detailed than what counsel for the Applicant expects and it
would be unfair, if not unbecoming, for the Court to proceed on this
assumption.
[13]
It should
also be stated that the Respondent alleges that her office will suffer
prejudice from an expedited proceeding.
[14]
In any
event, the Court cannot anticipate and constrain the questions arising from the
Application and reduce them prematurely, as the Applicant would like to. Furthermore,
even if the Court was to consider favourably all elements of the Application,
it is questionable whether this could be done before Monday, May 2, 2011. This
holds true without even considering the possible appeal and the likely motion
for a stay of the execution of a favourable decision from this Court. Consequently,
the relief sought may not even be granted should a favourable decision be made
on an expedited basis.
[15]
This situation
would have been different had the Applicant not filed her application less than
a week before the election. The Auditor General’s refusal has been public and
unequivocal since at least April 11, 2011.
[16]
The
inherent fairness of the proceedings is paramount. All parties involved should
benefit from timely and professional advice from counsel. In the delays by
which this complex application is suggested to proceed, it is questionable
whether the Court would benefit from an evidentiary record that is of the level
required for the proper assessment of the constitutional questions arising from
the application. The materials filed must meaningfully address the issues at
hand, something that 24 to 48 hours may well prove insufficient for counsel to
do so. This is notwithstanding the Court’s own analysis that is to be as
complete, considered and reasoned as judicial duties and the Constitution
require.
[17]
In citing
the Supreme Court case of RJR MacDonald Inc v Canada (Attorney General),
[1994] 1 S.C.R. 311, Justice Nadon recognized in May, above, that the
public interest in seeing the matter expedited should be considered.
[18]
In this
respect, counsel for the Applicant has argued that the public interest in the
disclosure of the Auditor General’s reports must prevail. Counsel has argued
that the exercise of our democratic rights is contingent on adequate
information, something the report would provide.
[19]
While this
could prove true in principle, in practice, the public interest is not well
served in shortcutting the considered judicial process required for the
weighing of constitutional matters. It is said that “haste makes waste”.
Surely, “waste” in constitutional matters is not a possibility that the Court
can validly accept if it is to acquit itself of its judicial duties. The
consequences of proceeding on an expedited basis could prove to be much broader
than intended, again, for a remedy that may not even be ultimately available to
the Applicant before Monday, May 2, 2011 in light of the appeals process and a
possible stay of the execution of a favourable judgment.
[20]
The
alleged urgency of the matter should not blind the Court of the task at hand:
deciding on the Auditor General’s duty towards the public based on Charter
values, as argued orally before the Court on April 27, 2011, or on the alleged
breach of Charter rights, as opined in the written representations of the
Applicant. Whatever the question ultimately becomes, the extremely limited
timeframe in which the Application is asked to proceed is not sufficient.
Urgency should not trump the careful weighing of our Constitution, whether it
is an “interpretative tool” or the source of the recourse itself. Even the
Applicant’s record is unclear in respect to what the grounds of the application
are. Is it a mandamus application? Is it a judicial review of the
Auditor General’s decision? Is it a stand-alone action based on section 24(1)
of the Charter? This wholly determines the remedies available and the Court’s
jurisdiction. Resolving this matter is essential and cannot proceed on the
extremely short timeframe the Applicant is asking for.
[21]
As for
mootness, this Court believes that despite the general election of May 2, 2011,
the underlying questions of law remain on the table, so to speak. However, that
ultimately will be a question for the Court deciding the underlying application
and whether, if the general election is the focal point of the application, the
Court’s residual discretion to hear the matter should be exercised.
[22]
Thus, it
can be said that there is an arguable public interest in having the Auditor
General’s report. It is a final report revised by her Office, apparently with
ongoing consultations with members of the Executive currently seeking
re-election. A fairness argument in this respect could be made. Furthermore,
the party leaders of the four main parties have acknowledged publicly their
wish to see the report made public. However, the public interest is not better
served in the event that a favourable but rushed decision cannot be enforced
before May 2, 2011. The public interest is not better served by having the
Court decide on the drop of a dime an important constitutional question. Hence,
the Court cannot grant the motion to hear the Application on an expedited basis
for the reasons described above.
[23]
At this
stage, no costs have been sought therefore none will be allowed.
ORDER
THIS COURT ORDERS that the motion to expedite the
hearing of the application is denied.
“Simon
Noël”
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