Docket: A-151-14
Citation:
2016 FCA 234
|
CORAM:
|
NADON J.A.
DAWSON J.A.
WOODS J.A.
|
|
BETWEEN:
|
|
RACHEL EXETER
|
|
Appellant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
(Deputy Head,
Statistics Canada)
|
|
Respondent
|
REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The appellant commenced an application for
judicial review in the Federal Court. The appellant then moved for interlocutory
relief before a prothonotary of the Federal Court. Dissatisfied with the
resulting order, the appellant appealed from the order of the Prothonotary and
requested a copy of the audio recording of the proceeding before the Prothonotary.
[2]
After listening to the audio recording, the
appellant believed that a portion of the audio recording was missing. The
appellant sought an investigation into what she characterized to be “doctoring” of the audio recording (Exhibit 4 to the
appellant’s affidavit). Legal counsel to the Federal Court responded that the
Federal Court audio recording contained time-markers and time indicators that
cannot be altered. Counsel further advised that a review of the audio recording
“shows that there are no gaps in the time indicators
thereby establishing that no segments of the recording have been deleted”
(Exhibit 5 to the appellant’s affidavit).
[3]
The appellant then moved “seeking directions from [the Federal] Court pursuant to
Rules 4 and 54 of the Federal Courts Rules concerning the procedures to
be followed under the Rules: for the production of an unaltered audio recording
record in CFN: T-943-12 heard on May 15, 2013” (appellant’s notice of
motion in the Federal Court).
[4]
In her written representations in support of her
motion for directions the appellant stated that:
21. The Applicant seeks direction from
the Court in regard to the procedure in pursuing a proper investigation done by
audio forensic experts, into the tampering of the audio of the recorded
proceedings held May 15, 2013.
22. The Applicant seeks direction from
the Court in regard to the procedure for obtaining the services of audio
forensic specialist to verify the authenticity of the recording.
23. The Applicant seeks direction in
obtaining a true copy of the audio recording record for use in her motion filed
with this court on May 27, 2013.
[5]
At paragraph 9 of her reply representations, the
appellant repeated that she sought direction on what she characterized to be a
procedural matter:
The Applicant seeks direction from this
Court on the procedure for obtaining an audio forensic expert to validate the
authenticity of this record. Such procedure are [sic] not found in the Federal
Courts Rules or the Federal Courts Act.
[6]
By order dated March 10, 2014, issued in Court
File T-943-12 a judge of the Federal Court dismissed the motion for directions
with costs. In the Judge’s view:
i.
there was no convincing evidence in support of
Ms. Exeter’s allegation that the audio recording provided by the Court was not
authentic;
ii.
even if the allegation was supported by clear
and convincing evidence, Ms. Exeter had not been prejudiced; and,
iii.
there was no need to address Ms. Exeter’s
arguments based on her right to freedom of expression guaranteed by section 2(b)
of the Canadian Charter of Rights and Freedoms.
[7]
On this appeal from the order of the Federal
Court, the appellant asserts a number of errors on the part of the Judge. In my
view, he was correct to dismiss the appellant’s motion for directions, although
I reach this conclusion for reasons different from those of the Federal Court.
[8]
In my respectful view, the appellant misconceives
the purpose of Rule 54 which permits a person to bring a “motion for directions concerning the procedure to be
followed under these Rules”.
[9]
Rule 54 was first enacted in the 1998 revision
of the Federal Courts Rules that replaced the version of the Rules found
in C.R.C. 1978, c. 663.
[10]
In one of the first cases to consider the new
rule (an authority relied upon by the appellant), Prothonotary Hargrave cautioned
that “except in rare circumstances a Court should not
be expected to intrude into such matters which more properly fall within the
responsibility of counsel” (Nash v. Sanjel Cementers Ltd. (1999),
178 F.T.R. 296, 2 C.P.R. (4th) 528, at paragraph 3).
[11]
This is so because in our adversarial system of
justice the Court cannot give up its role as an independent and impartial
decision-maker.
[12]
It follows from this role that the Court cannot
give legal or tactical advice to a party (Bernard v. Canada (Revenue Agency)
2015 FCA 263, 479 N.R. 189, at paragraph 39). The onus always rests on the
party asserting a right to prove the facts which support the party’s claim and
as an impartial decision-maker the Court cannot counsel a party on how to prove
their case.
[13]
In the present case, the appellant is obliged to
marshal whatever expert or technical evidence she believes she requires to
support her allegation that the audio recording provided by the Federal Court is
in any way inaccurate or incomplete. As an impartial decision-maker the Court cannot
recommend how to procure an “audio forensic specialist”
nor can it give directions on how to pursue “a proper investigation
done by audio forensic experts” nor can it assume the truth of the
appellant’s assertions so as to give directions about “obtaining
a true copy of the audio recording record” for use in the appellant’s
appeal from the order of the Prothonotary.
[14]
For the same reasons, the gap rule, Rule 4, does
not assist the appellant.
[15]
Because Rule 54 only permits the Court to give
procedural directions, it follows that the Court is not required to adjudicate,
and should not adjudicate, upon disputed issues in the course of giving
procedural directions. Thus, when disposing of the request for directions, it
was not relevant for the Court to consider whether the evidence supported the
appellant’s concerns or whether prejudice existed. It was similarly not
relevant for the appellant to advance an argument based on section 2(b)
of the Canadian Charter of Rights and Freedoms.
[16]
The Federal Court was therefore correct to
dismiss the request for directions.
[17]
In oral argument the appellant referred to a
request made to the Registry of the Federal Court for technical details
concerning the digital audio recording system used by the Federal Court. This
request post-dates the order under appeal and so is not relevant to the appeal.
However, details in the possession of the Federal Court, or readily available
to it, required by a forensic expert should be made available to the appellant on
request, absent some circumstance that is not apparent on the record before
this Court.
[18]
For these reasons I would dismiss the appeal. In
the circumstances, I would not award costs.
“Eleanor R. Dawson”
|
“I agree.
|
|
M. Nadon J.A.”
|
|
“I agree.
|
|
J. Woods J.A.”
|
Email this Content