RACHEL EXETER Appellant v. ATTORNEY, 2016 FCA 234

Date: 20160921 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 Heard at Ottawa, Ontario, on September 14, 2016. Judgment delivered at Ottawa, Ontario, on September 21, 2016. REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: NADON J.A. WOODS J.A. Date: 20160921 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). Legalcounsel to the Federal Court responded that the Federal Court audio recording contained time-markers and time indicators that cannot bealtered.

Counsel further advised that a review of the audio recording “shows that there are no gaps in the time indicators therebyestablishing 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 CourtsRules 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 forensicexperts, 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 toverify 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 onMay 27, 2013. [5] At paragraph 9 of her reply representations, the appellant repeated that she sought direction on what she characterized to be aprocedural matter: The Applicant seeks direction from this Court on the procedure for obtaining an audio forensic expert to validate the authenticity of thisrecord.

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 fordirections 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 wasnot 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 myview, he was correct to dismiss the appellant’s motion for directions, although I reach this conclusion for reasons different from those ofthe Federal Court. [8] In my respectful view, the appellant misconceives the purpose of Rule 54 which permits a person to bring a “motion fordirections 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 inC.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 cautionedthat “except in rare circumstances a Court should not be expected to intrude into such matters which more properly fall within theresponsibility of counsel” (Nash v.

Sanjel Cementers Ltd. (1999), (FC), 178 F.T.R. 296, 2 C.P.R. (4th) 528, atparagraph 3). [11] This is so because in our adversarial system of justice the Court cannot give up its role as an independent and impartialdecision-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 theparty’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 tosupport her allegation that the audio recording provided by the Federal Court is in any way inaccurate or incomplete.

As an impartialdecision-maker the Court cannot recommend how to procure an “audio forensic specialist” nor can it give directions on how to pursue “aproper investigation done by audio forensic experts” nor can it assume the truth of the appellant’s assertions so as to give directionsabout “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 fordirections, it was not relevant for the Court to consider whether the evidence supported the appellant’s concerns or whether prejudiceexisted. It was similarly not relevant for the appellant to advance an argument based on

section 2(

b) of the Canadian Charter of Rightsand 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” J.A. “I agree. M. Nadon J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-151-14 STYLE OF CAUSE: RACHEL EXETER AND ATTORNEY GENERAL OF CANADA (DEPUTY HEAD, STATISTICS CANADA) PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 14, 2016 REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: NADON J.A. WOODS J.A. DATED: SEPTEMBER 21, 2016 APPEARANCES : Rachel Exeter SELF-REPRESENTED For The Appellant Léa Bou Karam For The Respondent SOLICITORS OF RECORD : William F. Pentney, Q.C.

Deputy Attorney General of Canada Ottawa, Ontario For The Respondent