Date: 20020424
Docket: T-453-00
Neutral citation: 2002 FCT 542
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
-and-
JACOB FAST
Defendant
REASONS FOR ORDER
PELLETIER J.
This is my disposition of the issues arising from the questions and answers from the Examination for discovery of Mr. Fast which Mr. Vita seeks to have read into the record as part of his case. I had ruled earlier that counsel for Mr. Fast could seek to have other parts of Mr. Fast's discovery evidence read in as clarifying or explaining Mr. Fast's evidence. Clarifying or explaining refers to ensuring that the portions read in are not, within the four corners of the questions and answers themselves, misleading. Clarifying or explaining does not mean that other questions and answers
where Mr. Fast has given a different answer to the same question must be read in to clarify or explain the original answer. One must bear in mind that the process of reading in questions and answers is one of putting the opposite party's admissions on the record. That party always has the option of taking the stand to explain away or qualify those admissions. But it is not the rule that those qualifications must go as part of the examining party's case. So, in dealing with requests for inclusions of clarifying or explanatory questions and answers, I generally asked myself whether the qualifying material showed either that Mr. Fast did not understand the particular question, or that the portion being read in was misleading in the sense of suggesting that Mr. Fast, at that point, was saying one thing when in fact he was saying another.
One of the issues in this matter is Mr. Fast's mental condition. In some cases, it was sought to have material read in to show that he was confused or that his answers were non-responsive to the question. I did not give effect to these submissions. Non-responsive answers are just that, non-responsive answers. They have very little evidentiary value. But if a party wishes to put them in as part of its case, that is its privilege. Similarly, the fact that Mr. Fast was at various times confused is not relevant except to the extent that it can be shown that he is confused about the particular question. If the answers to particular questions appeared to me to be coherent, I did not allow the surrounding questions and answers to be read in for the purpose of showing that apparently lucid answers were in fact not lucid.
The defence was also allowed to challenge the inclusion of questions and answers where there were untranslated exchanges between the interpreter and Mr. Fast. I reviewed the videotape for the purpose of assessing these exchanges. I did not strike every question and answer in which there was an untranslated exchange because some of them seemed to me to be trivial, as for example a place name is repeated by both Mr. Fast and the interpreter. In the main however, I struck questions and answers where there were uninterpreted passages of any substance. Such passages created an unacceptable doubt as to whether the question answered was the question asked.
Finally, as a result of the process of exchanging positions on the questions and answers, many objections were resolved by agreement. Where that was the case, I have consolidated the two so that I only identified as contentious those questions on which there was no agreement. That said, what follows is the list of questions and answers that will go in as part of the plaintiff's case, subject to hearing further representations on questions 257 to 260 of Volume 1, and as to the inclusion of the videotapes, or portions of them, in evidence.
Uncontested Opposed Clarification Decision
Volume 1
77
Uncontested Opposed Clarification Decision
90-100 101-103 excluded for translation
109
111-118
122-130
132-145
220-224
229-238
248-252 included: answers are sufficiently responsive to show understanding of question
257-260 261-268 submissions to be made
270 included: challenged for responsiveness
278
280
281 V.2 362-364 excluded: not clarification but simply a different answer to the question.
295-304 videotape to be dealt with under status of video.
322-323 305-321 included: 322 and 323 are responsive. 305-321 do not qualify but merely show confusion.
331-332
339
Volume 2.
p2. lines 5 - 12
11-12 excluded for translation
48-49 excluded for translation
51-60 included except 56 which is excluded for translation
64-66 included: translation not material
75-78 79-82 excluded: 79 not clarification 80-82 excluded for translation.
104-107 included: translation problems not material
109 excluded: translation
113-117 excluded: for translation 113-114
included: 115-117
119-129 excluded: for translation 119-123
included: 124-129
131-132 excluded: for translation
153-160
Uncontested Opposed Clarification Decision
229-233 234-239 excluded: Q. 229 to 233 unambiguous, no clarification required.
240-241 242-245 excluded: does not clarify Q. 240-241. No confusion about ages.
254-259 included: except for 257 which is excluded for translation
260-262 included: translation not material
266-267 excluded: for translation
268 excluded: does not clarify
269 included: translation not material
270-275 excluded: does not clarify Q. 269
285-315 included: unopposed 307-309, 314-315
excluded: for translation 285-297, 302-303
included: 298-301, 304-307
310-313 excluded: for translation 310-311
included: 312-313
326-340 included: 326-328, 330, 332, 336, 339-340
excluded: for translation 329, 331, 333, 335, 338
366-369 excluded: for translation 367, 369
358-365 excluded: these are different answers to the same question. They do not clarify questions about application for naturalization
371 included: no answer does not preclude inclusion
382-383 384 included: no answer does not preclude inclusion
389-391 386-388 excluded: do not clarify following answers
396
400-403 excluded: for translation
405
408-411 excluded: for translation
418 included: no answer does not preclude inclusion
414-451
Uncontested Opposed Clarification Decision
Volume 3
1-22
34-40
41-42
43 included: no answer does not preclude inclusion
59-74 75-76 excluded: does not clarify
77-80
81-86
87-112 113-118 included: clarifies issues of mother's nationality
119-128
143-144
147-149
151 included: no answer etc.
157 translation: cannot dispose of because my copy of tape is blank
158-161
167 included: no answer etc
175 included: no answer etc
185-186 187 included: no answer etc.
Volume 4
9-24
27-28
After counsel have reviewed this document to ensure that I have not made transcription errors or errors in the interpretation of their positions, there will be an order that the uncontested and included questions be considered as having been read into the record. The question of the exhibits will be dealt with separately.
"J.D. Denis Pelletier"
_________________________
Pelletier J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-453-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Plaintiff
- and -
JACOB FAST
Defendant
DATE OF HEARING: WEDNESDAY, APRIL 24, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: PELLETIER J.
DATED: WEDNESDAY, APRIL 24, 2002
APPEARANCES BY: Mr. Peter A. Vita, Q.C.
Ms. Catherine Vasilaros
Mr. Jeremiah A. Eastman
For the Plaintiff
Mr. Michael Davies
Mr. Harold Mattson
For the Defendant
SOLICITORS OF RECORD:Morris Rosenberg
Deputy Attorney General of Canada
For the Plaintiff
Bayne, Sellar, Boxal
Barristers & Solicitors
200 Elgin Street
Suite 500
Ottawa, Ontario
K2P 1L5
For the Defendant
FEDERAL COURT OF CANADA
Date: 20020424
Docket: T-453-00
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
JACOB FAST
Defendant
REASONS FOR ORDER