Date: 20040922
Docket: A-405-04
Citation: 2004 FCA 314
PRESENT: THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
GAÉTAN PLANTE
Appellant
and
LUCIE MCCLUNG, COMMISSIONER, C.S.C.
IAN GLEN, CHAIR, N.P.B.
THE HONOURABLE ANNE MCLELLAN, SOLICITOR GENERAL OF CANADA
ATTORNEY GENERAL OF CANADA
Respondents
Written motion decided without appearance by parties.
Order made at Ottawa, Ontario, on September 22, 2004.
REASONS FOR ORDER: LÉTOURNEAU J.A.
Date: 20040922
Docket: A-405-04
Citation: 2004 FCA 314
PRESENT: THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
GAÉTAN PLANTE
Appellant
and
LUCIE MCCLUNG, COMMISSIONER, C.S.C.
IAN GLEN, CHAIR, N.P.B.
THE HONOURABLE ANNE MCLELLAN, SOLICITOR GENERAL OF CANADA
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] I have before me two motions by Mr. Plante, an inmate at Ste-Anne des Plaines. Neither is in accordance with the Rules of this Court. They are accompanied by a considerable quantity of documents the relevance of which is not always easy to see, and which in general are not always useful or intelligible.
[2] The easy course would be to direct the Registry to refuse to allow the appellant's documents to be filed and return them to him with directions that he comply with Rule 364. However, that would only add to the delays in an appeal seeking review of the dismissal of an application for an extension of time to file an application for judicial review. Consequently, I am prepared to approve the two motions for filing and the order to be made will inform the Registry of this.
[3] I can only deplore this situation of litigants who represent themselves and have no knowledge of the legal proceeding on which they are embarking or of the rules that apply, rules which have been adopted to ensure fairness and efficiency. The result is nothing but confusion, vagueness, uncertainty, delay, needless cost and frustration for all concerned.
[4] The appellant's first motion is a hybrid, as it seeks two conclusions that are not necessarily related.
[5] First, the appellant asks the Court for legal advice on the computation and justification of delays regarding his application for an extension of time and the extent of the submissions he must make to the Court on this point. The Court cannot both advise a party and then rule on the merits of its advice.
[6] Second, the appellant sought leave to file documents which have been submitted to the National Parole Board, but which were not filed before the motions judge ruling on the application for an extension of time to file an application for judicial review.
[7] The respondents properly objected to this: judicial review must deal with the decision of the motions judge, and in principle the record as it stood before the latter. In exceptional cases, new evidence may be admitted subject to strict requirements: the evidence emerged after the proceeding before the motions judge, or if it existed before or during that proceeding, it could not have been discovered before the proceeding ended despite reasonable diligence being exercised, the evidence is credible and it must be practically conclusive as to a point on appeal or as to the appeal. In the case at bar, there is nothing in the motion record to indicate or support a conclusion that these requirements were satisfied. Consequently, this first motion will be dismissed.
[8] In their memorandum of fact and law, the respondents suggested that the Court determine the content of the appeal record at the same time, since the parties cannot agree on the content of the record. I accept this suggestion as, first, it avoids the filing of a new motion and an endless debate, and second, it lessens the delays without either party being harmed thereby.
[9] Further, to facilitate the task of the appellant, who has limited technical and financial means, I believe it is proper to direct the Court Administrator to prepare the appeal record for the appellant. That record shall contain:
(a) all the documents listed at paragraph 19 of the respondents' reply record, which are in fact all the documents that were in the Federal Court before the motions judge when he made his decision;
(b) the order which was the subject of the appeal;
(c) the order and reasons for order rendered this day, September 22, 2004, on the appellant's two motions;
(d) a table of contents; and
(e) the notice of appeal.
[10] The appellant's second motion asks this Court to stay until the appeal is heard the order dismissing the application for an extension of time to file an application for judicial review, that is to direct the respondents to postpone the hearing before the National Parole Board scheduled for October 13, 2004. The respondents have not yet replied to this motion, which in the appellant's submission was served on counsel for the respondents, Dominique Guimond, on September 10, 2004.
[11] I do not think there is any need to await a reply by the respondents, as I consider that the motion clearly cannot be granted.
[12] The review by the National Parole Board of the order continuing the appellant's detention, scheduled for October 13, 2004, is a mandatory annual review provided for by section 131 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. It exists for the inmate's benefit. Apart from the fact that I am far from being persuaded that I have authority to order such a postponement, I do not see how the appeal from dismissal of the application for an extension of time to challenge a prior Board decision by judicial review could justify such an order. The dismissal of the application for an extension of time by the Federal Court does not in any way affect the merits or demerits of the initial order to continue the detention made by the Board in November 2003. Similarly, it does not in any way prejudge the outcome of the review proceeding on October 13 next.
[13] The appellant submitted that he was in danger of being told that his appeal had become moot if, on October 14 next, the Board makes a new decision to continue his detention. With an annual review procedure, the question of what is [TRANSLATION] "moot" is inevitable, but not necessarily prejudicial on that account. The appeal may also become moot because the detention order is revoked and a parole order made ex officio: see e.g. Fortin v. Gilbert, A-71-97, February 16, 2000. Clearly, it is not possible to assume in advance that there will be a conclusion unfavourable to the inmate in such a review and use that presumption to interfere with the review process laid down by Parliament. In any case, this Court has the discretionary power to order that an appeal which has become moot may nevertheless be heard on the merits in the interests of justice.
[14] Finally, I do not see how a stay of the order by the motions judge dismissing the application for an extension of time can be of any assistance to the appellant. It would not create any right to judicial review, since the existence and exercise of the latter depend on an extension of time.
[15] For these reasons, the appellant's two motions will be dismissed. An order will be made to this effect, also indicating the content of the appeal record and that the Administrator is required to prepare it. Finally, the order will mention that the appellant must file and serve a memorandum in accordance with the Federal Court Rules, 1998, within 30 days of the date on which he is informed that the appeal record has been filed, or his appeal will be dismissed.
"Gilles Létourneau"
J.A.
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-405-04
STYLE OF CAUSE: GAÉTAN PLANTE v. LUCIE MCCLUNG, COMMISSIONER, C.S.C. et al.
WRITTEN MOTION DECIDED WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER: LÉTOURNEAU J.A.
DATE OF REASONS: September 22, 2004
WRITTEN SUBMISSIONS BY:
Gaétan Plante FOR THE APPELLANT
Dominique Guimond FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE RESPONDENTS
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec
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