Date: 20021108
Docket: A-470-02
Neutral citation: 2002 FCA 441
PRESENT: STRAYER J.A.
BETWEEN:
J.J. MARC PAQUETTE
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] The appellant seeks in this motion to have added to the appeal book an affidavit that is not included in the draft agreement between the parties as to the content of the appeal book
[2] The decision of the Trial Division appealed from was issued on July 9, 2002 in respect of an application brought by the appellant for judicial review of an exemption, issued on behalf of the Minister of Health dated March 12, 2001, in respect of permitted use by the appellant of marihuana for medical reasons. The application judge recognized that this exemption had been extended to March 11, 2002, but he understood that as of that date it had been replaced by a new exemption. He found that as the exemption attacked was in a document already expired at the time of hearing, the matter was moot. However, he proceeded to review the terms of the exemption as originally set out in the letter of March 12, 2001, and found them to be reasonable and without reviewable error.
[3] The appellant now seeks to add to the appeal book a new affidavit dated September 5, 2002 (well after the decision in the Trial Division) which was prepared for a proceeding in the Superior Court of Ontario and involving some different parties. In his view this affidavit would demonstrate that the March 12, 2001 exemption had been extended by letters to October 8, 2002. The respondent objects to its inclusion in the appeal book.
[4] Save for some very exceptional circumstances which have not been demonstrated here, the appeal book should contain the material which was before the trial judge: the purpose of an appeal is to determine if the trial judge made the correct decision on the basis of the material before him. Parties on appeal cannot continue to add to the record to try to support a case they did not properly submit to the court below. Indeed it appears to me that the appellant would have had ample opportunity to explain (and if necessary to produce) the letters extending the March 12, 2001 exemption from March 12, 2002 to October 8, 2002 if the judge wrongly thought that the conditions of exemption under review had already expired on March 11, 2002. In his reasons the learned judge states:
[16] Au début de l'audition, j'ai fait remarqué aux parties qu'il me semblait à première vue que le fond du débat était devenu théorique étant donné l'expiration de l'exemption contestée, soit la lettre du 12 mars 2001 qui était en vigueur jusqu'au 11 mars 2002.
Thus from the outset the appellant should have understood the need to clarify the date of termination of the exemption complained of.
[5] In any event, it is not proper to place on the record an affidavit prepared in another court in respect of other proceedings involving some different parties.
[6] The motion to add this affidavit to the appeal book is therefore dismissed. As it is apparent the parties have not agreed on the contents, and as the appellant has in effect asked the Court to determine what they should be, I will adopt the list drafted but not approved by the parties in an order as to contents, adding the other documents as required by Rule 344.
(s) "B.L. Strayer"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-470-02
STYLE OF CAUSE: J.J. Marc Paquette and Attorney General of Canada
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE STRAYER
DATED: November 8, 2002
SOLICITORS OF RECORD:
J.J. Marc Paquette, self-represented
Hawkesbury, Ontario FOR THE APPELLANT
Deputy Attorney General of Canada FOR THE RESPONDENT
Ottawa, Ontario