Date: 20040622
Docket: T-561-04
Citation: 2004 FC 885
Ottawa, Ontario, Tuesday, this 22nd day of June 2004
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
RICHARD CONDO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
TABIB P.
[1] In the context of an application for judicial review of the decision of the Correctional Service of Canada ("CSC") to refer the Applicant's case to the National Parole Board ("NPB") for a detention hearing, I am seized of a motion by the Respondent to strike the notice of application on the basis that there exists an appropriate alternative remedy which the Applicant has not exhausted, and, subsidiarily, for an order removing or disqualifying the Applicant's solicitor of record.
[2] I am also seized of the Applicant's motion for leave to examine two witnesses and to use the transcript of these examinations as evidence at the hearing of the application. Although the Applicant's motion originally also requested an adjournment of the Respondent's motion to strike for the purpose of examining these witnesses and using the transcript as part of its responding record, the Applicant's counsel withdrew that part of the motion at the hearing.
Motion to strike
[3] The availability of an alternative mode of redress is clearly a substantial impediment to the Applicant's ability to obtain the discretionary relief claimed in his application. However, this is not a case where section 18.5 of the Federal Courts Act applies directly; there is therefore no statutory bar to the Applicant's judicial review application. I could nevertheless, on the authority of Fast v. Canada (Minister of Citizenship and Immigration) 2001 FCA 368, exercise my discretion to strike the notice of application on the basis of the existence of an adequate alternative remedy. However, I decline to do so, as the Respondent has not established the existence of exceptional circumstances which would justify a departure from the rule that grounds for contestation of a judicial review proceeding should be presented at the hearing of the application itself (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1994] F.C.J. No. 1629). Moreover, I note that in the present case, the Applicant's motion for an expedited hearing has been granted and the application is scheduled to be heard in less than a month. It is therefore clearly more appropriate for the issue to be left to the determination of the judge on the merits.
Motion to remove the Applicant's solicitor from the record
[4] The Respondent's motion for an order that the Applicant's solicitor be removed from the record is based on the Respondent's contention that Ms. Magas, the Applicant's wife and solicitor, is directly implicated in the facts giving rise to this judicial review application, in that the decision under review is the decision of CSC to issue a detention referral to the NPB based on its assessment, inter alia, that the Applicant is likely to commit, before the expiration of his sentence, an offense causing serious harm to another person, namely Ms. Magas herself.
[5] Despite the fact that Ms. Magas has not and does not intend to file affidavit evidence in this matter, it is said that her personal implication in the underlying facts renders her incapable of maintaining the "professional independence and a measure of necessary impartiality" required of counsel in a hearing (Merck & Co. Inc. v. Apotex Inc., [1996] 2 F.C. 223; affirmed at (1996), 206 N.R. 289). It is said that her representation in this matter could not be dissociated from testimony, especially where she will plead that the Applicant does not represent a risk of violence towards herself.
[6] Counsel for the Respondent was unable to refer me to any case where a solicitor was disqualified from acting because of a personal stake or implication in the underlying facts, unless it was expected that he or she could be called to testify. Here, not only is it not disputed that Ms. Magas will not be called upon to testify, but being a judicial review application, this proceeding could not result in an evidentiary hearing of the underlying facts. And while the decision under review concerns her in that it assesses the threat the Applicant might pose to her, the decision does not directly assess or purport to determine Ms. Magas' conduct, credibility or actions. Ms. Magas' personal views of whether or not the Applicant represents a threat to her is not the subject matter of this judicial review application, nor is it prima facie relevant thereto.
[7] The Respondent has neither alleged nor argued that the conduct of Ms. Magas in the prosecution of this proceeding has been anything other than professional or within the bounds of the "necessary impartiality" required of an Officer of the Court.
[8] I can find no authority at law that a solicitor can be disqualified from representing a party before this Court by reason of a too great identification with the interest of his or her client or a personal implication in the underlying facts, where there is no conflict of interest prejudicial to the other party and it is clear that the solicitor will not be testifying. There is therefore, on the record before me, no justification for granting the Respondent's motion.
[9] That is not to say that Ms. Magas' representation of the Applicant herein does not raise ethical issues and some degree of discomfort. Indeed, while Ms. Magas, as counsel for the Applicant, is bound to promote his interest (and in the view of the Respondent, might even be overly involved in promoting this interest), an independent observer might, justifiably, be inclined to question whether her personal interests are not in fact adverse to her client's. It is, after all, her own personal safety which the CSC was purporting to protect, even without her voluntary intervention and even though her representation of the Applicant suggests her disagreement with CSC's assessment. In the circumstances of this case, I am concerned that Ms. Magas stands in a position of possible conflict of interest in relation to her own client.
[10] It is not, however, for the opposing party or for the Court to raise this issue on behalf of the Applicant. The relationship between the Applicant and his counsel and her performance of her duty towards him is a matter between the Applicant and his counsel (Cyrus v. Canada (Minister of Health and Welfare), [1992] F.C.J. No. 471 (C.A.)). Counsel for the Respondent clearly indicated at the hearing that any potential conflict of interest between Ms. Magas and her client was not of concern to the Respondent.
[11] Unless Ms. Magas' representation of Mr. Condo in this matter is of a nature to cause prejudice to the Respondent or to the administration of justice, which does not appear to be the case, then it is within the Applicant's right to waive the conflict and choose to be represented by Ms. Magas. The Respondent's motion, as well as the facts and circumstances upon which the conflict would arise, are certainly well known to the Applicant and he has reiterated his desire to be represented by Ms. Magas. Beyond this, and beyond the concerns raised in the present reasons for order, the Court may not go further and must conclude that the Applicant, upon being properly advised by his counsel, has waived the possible conflict (R. v. Henry, [1990] R.J.Q. 2455; (1990) 61 C.C.C. (3d) 455 (Que.C.A.)). Nor is it for the Court to enforce or apply the code of ethics of the various law societies (MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at page 1245).
Applicant's motion for leave to examine witnesses
[12] At the hearing, counsel for the Applicant clarified that her motion was essentially brought pursuant to Rule 316, which allows the Court, in special circumstances, to authorize a witness to testify in Court on an application. By the application of Rules 3 or 4, Rule 316 would be extended or interpreted to allow this testimony to be constituted out of Court.
[13] I am in some doubt as to whether recourse to Rule 4 (the "gap" Rule) is permissible in the circumstances, as Rule 316 appears to specifically provide for authorization for witnesses to testify in Court in relation to an issue of fact raised in an application. I do not, however, need to address this issue or the issue of whether Rule 316 can be interpreted or applied so as to permit depositions out of Court, as I am not satisfied that the Applicant has established the existence of special circumstances upon which the Court might exercise its discretion under Rule 316.
[14] Mr. John Wilson is a Regional Manager of the NPB. According to the Applicant, he would purportedly give evidence showing that, notwithstanding the NPB's duty, at law, to review the reasonability of the CSC's referral prior to scheduling a hearing, the NPB would not conduct such a review, based on its practice to treat the scheduling of hearings as a "rubber-stamp" process. This evidence, according to the Applicant, would negate the Respondent's argument that an adequate alternative remedy exists.
[15] I agree with the Respondent's submissions, at paragraphs 36 to 43 of its written submissions in response, to the effect that this evidence it not determinative of the issue of the adequacy of the alternative remedy, or of any issue of significance in this judicial review application. The subject matter of this application is the CSC's assessment that the Applicant's case met the criteria for referral, not the putative decision of the NPB to accept the referral. The adequacy of an alternative remedy is a matter of law, and it would not be appropriate for the Court to conduct a pre-enquiry on the issue of whether or not the NPB will act lawfully. Finally, the NPB's conduct would not be determinative of the adequacy of the alternative remedy, as the appeal division of the NPB would still have power to review the NPB's decision.
[16] In addition, I am not satisfied, on the evidence presented by the Applicant, that the Applicant is or was unable to adduce the purported evidence of Mr. Wilson by any other means. The affidavit tendered shows that Mr. Wilson's alleged statements were made voluntarily to the Applicant's counsel with full knowledge of the existence of the present application and of the Applicant's position therein. There is no evidence that Mr. Wilson would not, had he been asked, have confirmed his statements in writing or even in the form of an affidavit. Counsel simply did not ask and now asks the Court to assume that such a request would have been refused. I am not prepared to do so.
[17] As regards the testimony of Peter Slaughter, the Applicant's parole officer, his opinion as to whether or not the CSC's decision was reasonable, and that the conclusion he would have reached had he been the decision-maker, is neither determinative of any issue nor even relevant on judicial review of the CSC's decision.
ORDER
IT IS ORDERED THAT:
1. The Respondent's motion to strike the notice of application or to remove the Applicant's solicitor from the record is dismissed.
2. The Applicant's motion to examine witnesses and to use the transcript of their testimony at the hearing of this application is dismissed.
3. Upon the parties consent, the affidavit of Michel Frappier, served and filed on April 28, 2004 in support of the Respondent's motion shall be considered as the Respondent's affidavit pursuant to Rule 307 and need not be re-served or re-filed by the Respondent.
4. The Applicant's record shall be served and filed no later than June 25, 2004.
5. The Respondent's record shall be served and filed no later than July 8, 2004.
"Mireille Tabib"
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-561-04
STYLE OF CAUSE: Richard Condo
v.
The Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 17, 2004
REASONS FOR Judgement : Madam Prothonotary Mireille Tabib
APPEARANCES:
Diane Magas FOR APPLICANT
Éric Lafrenière FOR RESPONDENT
SOLICITORS OF RECORD:
Magas Law Office FOR APPLICANT
Barrister & Solicitor
Otttawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada