Date: 20020305
Docket: T-453-00
Neutral Citation: 2002 FCT 248
Ottawa, Ontario, this 5th day of March 2002
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
The Minister of Citizenship and Immigration
Plaintiff
- and -
Jacob Fast
Defendant
REASONS FOR ORDER AND ORDER
[1] On October 25, 2001, Associate Chief Justice Lutfy made an order pursuant to a motion that the defendant Jacob Fast be required to attend for examination for discovery as provided in Rule 97 of the Federal Court Rules, 1998, SOR/98-106. At the time the order was made, a litigation guardian had been appointed for Mr. Fast. The Associate Chief Justice granted the plaintiff the relief which she sought on conditions. The condition which is now the subject of controversy is that which appears at paragraph 10 of the order and which provides as follows:
In the event that the plaintiff wishes to avail herself of her right to introduce any part of the examination for discovery of the defendant at the trial, pursuant to Rule 288 of the Federal Court Rules, she may do so only with leave of the trial judge (see Rule 31.11(5) of the Ontario Rules of Civil Procedure).
The rules to which reference is made in the order provide as follows:
288. A party may introduce as its own evidence at trial any part of its examination for discovery of an adverse party or of a person examined on behalf of an adverse party, whether or not the adverse party or person has already testified.
288. Une partie peut, à l'instruction, présenter en preuve tout extrait des dépositions recueillies à l'interrogatoire préalable d'une partie adverse ou d'une personne interrogée pour le compte de celle-ci, que la partie adverse ou cette personne ait déjà témoigné ou non.
31.11(5) The evidence given on the examination for discovery of a party under a disability may be read into or used in evidence at the trial only with leave of the trial judge.
[2] The plaintiff says that the effect of the Associate Chief Justice's order is to impose on him the burden of showing that Mr. Fast was competent to give evidence on his own behalf. Once competence is established, the effect of the order is spent and Mr. Fast's evidence may be read in without further leave subject only to the defendant's right to seek to have explanatory questions and answers read in where it is necessary to do so in order to clarify the meaning of particular questions and answers.
[3] The defendant takes the position that the order permits two challenges to the evidence going in, once on the issue of competence, and once as to any specific question which the plaintiff proposes to read in. In addition, the defendant seeks to exclude the discovery evidence on the ground that since Mr. Fast is a person under a disability it was incumbent upon the party examining him to establish that he was aware of his obligations as a result of his affirmation. Finally, the defendant says that there was a sufficient number of passages where there were untranslated exchanges between Mr. Fast and the interpreter that one cannot be sure which question Mr. Fast was answering.
[4] The Associate Chief Justice also ordered that the examination for discovery be videotaped. With the consent of both parties, I reviewed substantial portions of the videotape and the transcript of the proceedings with a view to dealing with the issue of leave. This review was for a limited purpose and no use will be made of it except for the purpose of dealing with this application.
[5] The normal rule as to reading in the evidence from examinations for discovery is that the examining party has a complete discretion as to the parts of the examination to be read in as part of its case. The only limitation is the right of the opposing party to seek to have question and answers which clarify the meaning of the questions and answers read in. The Federal Court Rules do not have the equivalent of Rule 31.11(5) of the Ontario Rules of Civil Procedure dealing with the reading in the discovery evidence of a person under a disability.
[6] In the absence of the order of the Associate Chief Justice, the question of the treatment of Mr. Fast's discovery evidence would be governed by Rule 288 cited above which allows a party to read in the evidence of an adverse party, or a party examined on behalf of an adverse party. In other words, once the decision is made that a person is capable of being examined, so that an order is made under Rule 237(6), the right of the party to use the evidence thus obtained is unrestricted. Rule 237(6) provides as follows:
(6) Where a party intends to examine for discovery a person appointed under rule 121 to act on behalf of a person under legal disability, with leave of the Court, the party may also examine the person under disability.
(6) La partie qui entend soumettre à un interrogatoire préalable la personne nommée, en application de la règle 121, pour agir au nom d'une personne qui n'a pas la capacité d'ester en justice peut aussi, avec l'autorisation de la Cour, soumettre cette dernière à un interrogatoire préalable.
[7] In this case, no application was made under Rule 237(6) as the proceedings were launched by an application pursuant to Rule 97 dealing with the failure of a person to attend at examinations for discovery. It is clear from the terms of the order that the Associate Chief Justice was deferring the issue of competence to be dealt with by the trial judge.
[8] Having reviewed significant portions of the videotape of the examination for discovery, I can say that Mr. Fast is, under certain conditions, able to give an account of his activities during the war-time period. There are exchanges of questions and answers in which it seems that Mr. Fast is alive to the questions being put to him and is responsive to them. However, there are also other parts where it is clear that Mr. Fast is confused and that his answers are not responsive to the questions being posed. There are several passages where it is apparent that Mr. Fast and Mr. Vita are speaking at cross purposes. On different occasions, he gives contradictory answers to the same question. All in all, the predominant impression is one of someone whose presence to the events in which he is engaged is variable.
[9] Counsel for the Minister makes the point that competence is a matter of capacity and not of the exercise of the capacity. The fact that someone cannot remember a particular point does not mean that they have no capacity to remember. It simply means that they do not remember a particular event. Counsel for the Minister cites the following passage from R.v. Farley (1995) 99 C.C.C. (3d) 76 in support of this proposition:
The cognitive and communicative components of the competence test found in s. 16(3) refer to capacity and not to the proposed witness's actual perception, recollection, and narration of the relevant events. A person may have the capacity to perceive, recall, and recount and yet be unable to perform one or more of those functions in a given situation. For example, a witness who genuinely has no recollection of the relevant events is not thereby rendered incompetent unless that inability to recall is a reflection of the absence of the capacity to recall. It must also be stressed that the cognitive and communicative components of s. 16(3) set a relatively low threshold for testimonial competence. Once the capacity to perceive, remember, and recount is established, any deficiencies in a particular witness's perception, recollection, or narration go to the weight of that witness's evidence and not the witness's competence to testify: R. v. Marquard, supra, at p. 220.
[10] Notwithstanding that the discussion in Farley is in relation to whether a witness had the capacity to understand an oath, which is the subject matter of subsection 16(3) of the Canada Evidence Act, R.S.C. 1985, c. C-5, referred to in the preceding passage, the test set out there is equally applicable to whether a person is competent to testify in the sense of mental capacity. This is a relatively modest threshold. On balance I find that Mr. Fast meets that test.
[11] That leaves the question of whether the order of the Associate Chief Justice requires or permits leave to be given with respect to each question and answer sought to be put in. There is always a sense of incompleteness about questions and answers for examinations for discovery since they are by definition mere selections from a larger body of evidence. The possibility of injustice exists in ordinary civil litigation with litigants who are not under a disability. The remedy provided is the opportunity to read in explanatory passages. While this is usually fairly limited in scope, it can be expanded to meet the needs of a particular case. In this case, explanatory passages could be read in to show that the answer sought to be read in did not adequately express Mr. Fast's evidence.
[12] There is also the additional circumstance of the existence of untranslated exchanges between Mr. Fast and the interpreter in which the interpreter appeared to be doing more than simply repeating the question. It appears in some case that some guidance was given, and without knowing what was said, it is difficult to know to which question Mr. Fast is answering. This is an appropriate circumstance for excluding an answer since it is not a question of qualifying the answer with other comments made. The question to which the answer is made is unknown. This will have to be decided on a case by case basis.
[13] As to the issue of the absence of evidence of an understanding of the oath or affirmation made by Mr. Fast, the passage cited above from Farley dealt with that very question. I am satisfied that the fact of requiring a litigation guardian does not, of itself, result in a presumption that Mr. Fast would lack an appreciation of the need to tell the truth. Furthermore, in my review of the videotape of the discovery, I saw nothing to suggest that Mr. Fast did not understand his obligation to answer truthfully. In the result, there is nothing but the appointment of the litigation guardian to suggest that he did not understand his obligation and I find that this is insufficient to make the evidence inadmissible as a result of the failure to inquire as to Mr. Fast's understanding of the meaning of his affirmation.
ORDER
For the reasons set out above, the plaintiff has leave to read in questions and answers from the examination for discovery of the defendant, subject to the defendant's right to propose that additional passages be read in to explain the passages sought to be read in or to show that they do not adequately represent the defendant's evidence. The defendant is given leave to oppose the reading in of questions and answers from the examination for discovery of the defendant where there are untranslated exchanges between the defendant and the interpreter which raise a doubt as to whether the question which was answered is the one which was asked.
"J.D. Denis Pelletier"
Judge