Date: 20060405
Docket: A-557-05
Citation: 2006 FCA 135
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
and
MICHAEL ANDREW STRACHAN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on April 5, 2006)
LÉTOURNEAU J.A.
I.Issue on Appeal
[1] This appeal involves an interpretation of Rule 45 of the Federal Courts Rules which reads:
| 45. Compelling attendance of detainee - On motion, the Court may make an order in Form 45 requiring that any person who is in the custody of a prison or penitentiary be brought before the Court.
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45. Comparution d'un détenu - La Cour peut, sur requête, rendre une ordonnance, selon la formule 45, exigeant qu'une personne détenue dans une prison ou un pénitencier soit amenée devant elle.
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[2] The appellant challenges the interpretation of this Rule by a Judge of the Federal Court in a short speaking Order issued on November 9, 2005. The Order enjoined the appellant to bring the respondent physically before the Court, in order to argue his application for judicial review challenging the revocation of his statutory release under the provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20. Following the revocation of his parole, the respondent was arrested and detained.
[3] The hearing of the application for judicial review, at which the respondent was physically present and represented himself, has been held. The hearing lasted two hours and twenty minutes, instead of the four hours scheduled. The respondent's application for judicial review was dismissed.
A. Mootness
[4] Even though the matter before us is now moot, the appellant submits that it should still be decided, pursuant to the exercise of the Court's discretion. There are, he says, inconsistent decisions in the Federal Court with respect to the interpretation of Rule 45. Accordingly, it is in the public interest that this Court provide some guidance on the proper scope and purpose of Rule 45, and resolve the uncertainty created by the Order under appeal. The appellant also argues that the issue is one of practice before the Federal Court, and this Court, and has a broad ranging application, since it concerns all inmates in federal custody across Canada.
[5] Counsel for the respondent agreed that the appeal should be heard, despite its mootness.
[6] Counsel for the appellant submits that the Judge departed from the existing jurisprudence on Rule 45 by shifting the focus from the issue of whether an inmate can adequately present his case without being physically present at the proceedings, to the issues of security and transportation costs. The result, according to the appellant, is that the Crown finds itself in a position where, by relying on security risks and transportation costs, it could prevent inmates from being physically present at a hearing, even though their presence was necessary for the fair resolution of the dispute.
[7] Counsel for the respondent relied on R. v. Gustavson (2005), 193 C.C.C. (3d) 545, in which the British Columbia Court of Appeal ruled that the audi alteram partem principle does not necessarily require that both sides be heard in person, but contemplates that both sides will have an equal opportunity to be heard, whether in person, in writing, or with the benefit of modern technology through teleconference or videoconference. Counsel for the respondent emphasized that the equal treatment of both parties to the hearing is achieved by affording to both parties the same means of participation.
[8] The appellant agreed, rightly in our view, that the Crown should normally participate in the hearing by the same means as the inmate.
[9] We are satisfied that the speaking Order under appeal is liable to cause confusion by stating that an inmate has a right to be physically present in court, and by apparently placing the onus on the Crown to establish that the interest of justice does not require the inmate's presence. We are of the view that the proper focus of the inquiry on a Rule 45 motion should be restated. Accordingly, notwithstanding the mootness of the appeal, it is appropriate that this Court determine it. .
B. The Analytical Framework Applicable to a Rule 45 Motion
[10] Rule 45 assumes that an inmate-litigant may not be able to be present in court without an order of the Court. In our respectful view, a judge's role on a motion pursuant to Rule 45 is to determine whether it is in the interest of justice that an inmate be physically present at the hearing before the Court.
[11] In assessing the interest of justice, the motions judge should focus on whether the inmate can adequately and satisfactorily present his case if not physically present at the hearing. In considering this question, the judge should take into account at least the following factors:
a) whether the inmate is represented by counsel;
b) the nature, length and complexity of the proceedings;
c) the availability and adequacy of the technological means envisaged for the hearing;
d) where applicable, the effect that a telephone or videconference can have on the Court's ability to make findings, including credibility findings; and
e) whether the Crown consents to appear by the same means as the inmate.
[12] With this approach, security issues and transportation costs are not relevant factors to be taken into consideration under Rule 45. Counsel for the appellant conceded that if an inmate cannot adequately argue his case without being physically present at the hearing, he should be there regardless of the costs. The relevant authorities will arrange and bear the costs of the necessary transportation and security measures, or to have the hearing take place in the penitentiary, if the court so orders.
[13] Indeed, Rule 45 already assumes that inmate-litigants cannot travel freely and, therefore, that there are costs and security concerns in authorizing their physical presence in court. Thus, these concerns cannot be used to defeat the power of the court to order that an inmate be brought before the court.
C. The Burden of Proof on a Rule 45 Motion
[14] Counsel for the appellant submits that the ruling of the Motions Judge had the effect of putting on him the burden of proof on a Rule 45 motion. More precisely, if the Judge's decision is allowed to stand, the Crown bears the burden of proving that security risks and transportation costs are of such a magnitude that they outweigh the benefit of the physical presence of the inmate in court.
[15] As drafted, the speaking order lends itself to such an interpretation. Counsel for the respondent conceded that an inmate who files a motion pursuant to Rule 45 bears the burden of proving that it is in the interest of justice that the inmate litigant be physically present in court to argue his case. This burden, we would add, is satisfied on a balance of probabilities by the inmate's providing evidence and submissions on the factors relevant to the exercise of the motions judge's discretion.
D. Judicial Concerns for the Efficient Administration of Justice
[16] The Federal Court took the initiative in 1992 of resorting to telephone and videoconferencing when it issued a Practice Direction on telephone conferencing and, in 1996, Circular No. 5/96 respecting both telephone and videoconferencing. Initially, as indicated in both documents, the use of these telecommunication means was limited to motions, conferences, emergency matters and special circumstances. As the technology improved and proliferated, its use was extended to other matters.
[17] Rule 32, entitled "Remote conferencing", empowers the Court to order that a hearing be conducted in whole or in part by means of a telephone conference call, videoconference or any other form of electronic communication.
[18] This Court heard by way of videoconferences judicial review applications involving inmates (see Caron c. Sa Majesté La Reine, 2001 CAF 173 and Canada(Service correctionnel) c. Plante, 2005 CAF 120), and employment insurance claims (see Allain v. Canada (Attorney General), 2001 FCA 28 and Canada (Attorney General) v. Larocque, 2001 FCA 29 where, in both cases, one party was in Halifax, the other in Caraquet, N.B. and the Court in Ottawa).
[19] Furthermore, as the following examples illustrate, greater use of that technology is now made not only in the Federal Courts, but in provincial courts as well.
[20] In Ontario, the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 enacted pursuant to the Courts of Justice Act R.S.O. 1990, c. C.43, provide for the conduct of a hearing or other proceedings by way of telephone or videoconference. Rule 1.08(5) lists the factors to be considered in determining whether an application for judicial review is to proceed by way of videoconference. The Court can permit or direct that the hearing be held through telephone or videoconferencing.
[21] In Manitoba, the Courts of Queen's Bench Rules, Man. Reg. 553/88, enacted pursuant to the Court of Queen's Bench Act, S.M. 1988-89, c. 4, allow for the hearing of an application by telephone, videoconference or other means. Resort to these alternate means can be on consent or directed by the Court. An application is defined in section 1 as "a civil proceeding, other than an action, that is commenced in the court by a notice of application". Rule 68.01 holds that judicial review proceedings are commenced by way of application. They therefore can be heard by way of technological means.
[22] The Rules of Practice of the Quebec Superior Court in Penal Matters enacted pursuant to section 368 of the Quebec Code of Penal Procedure, R.S.Q., c. C-25.1 stipulate in Rule 14, with respect to hearings by videoconference, that all motions, applications or appeals may be presented by way of videolink in districts where the necessary equipment is available.
[23] Pursuant to Rule 44 of the Rules of Practice of the Appeal Courtin Civil Matters (Code of Civil Procedure, R.S.Q., c. C-25, section 47) motions to a single judge, or to the Court, and appeals may be heard by means of a videoconference.
[24] In British Columbia, following the decision in Gustavson, supra, the Associate Chief Justice of the British Columbia Supreme Court issued on February 21, 2005 a directive to the Criminal Registry staff, trial coordinators and sheriffs regarding the procedure to be followed on habeas corpus applications by inmates in provincial or federal institutions. According to these instructions, where videoconferencing facilities are available, arrangements should be made for the inmate, whether represented by counsel or not, to appear by that means.
[25] We have summarily reviewed the rules of practice in three provinces and the directive in British Columbia to show the shared concerns of the courts for the fair and efficient administration of justice and their willingness to resort to new technologies to achieve these purposes.
II. Conclusion
[26] For these reasons, we are satisfied that if the Motions Judge had adopted the correct approach to the exercise of her discretion, she ought to have dismissed the motion under Rule 45. Accordingly, the appeal will be allowed without costs. However, since the warrant to bring the respondent to court has been executed and the judicial review proceedings are completed, the appellant is not seeking any other order from this Court.
"Gilles Létourneau"
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