Digests

Canada (Minister of Citizenship and Immigration) v. Fast

T-453-00

2002 FCT 248, Pelletier J.

5/3/02

8 pp.

Application for leave to read in questions, answers from defendant's examination for discovery--Litigation guardian appointed for defendant--A.C.J. ordered defendant to attend for examination for discovery as provided in Federal Court Rules, 1998, r. 97 on condition plaintiff may only introduce any part of examination for discovery pursuant to r. 288 with leave of trial judge--R. 288 permitting party to introduce as own evidence at trial any part of examination for discovery of adverse party--Plaintiff submitting once establishing defendant's competence, defendant's evidence may be read in without further leave--Defendant submitting order permitting two challenges to evidence going in, once on issue of competence and once as to any specific question plaintiff proposing to read in--Normally examining party has complete discretion as to parts of examination to be read in subject only to right of opposing party to seek to have questions and answers clarifying meaning read in--In absence of order, defendant's discovery evidence governed by r. 288--Once decision made that person capable of being examined, so that order made under r. 237(6), right of party to use evidence thus obtained unrestricted--R. 237(6) permitting party to examine person under disability where intending to examine for discovery person appointed to act on behalf of person under legal disability--No application made under r. 237(6)--Clear from order that A.C.J. deferring issue of competence to be dealt with by trial judge --Videotape of examination for discovery leaving impression defendant's comprehension of events in which engaged variable--Competence matter of capacity, not exercise of capacity i.e. that not remembering particular point not meaning have no capacity to remember: R. v. Farley (1995), 99 C.C.C. (3d) 76 (Ont. C.A.)--Farley test applicable to whether competent to testify in sense of mental capacity--Reading in explanatory passages remedy for incompleteness created as questions and answers mere selections from larger body of evidence--Appropriate to exclude answer where question unknown i.e. untranslated exchanges between defendant, interpreter, but must be decided on case-by-case basis--Appointment of litigation guardian not creating presumption defendant would lack appreciation of need to tell truth; insufficient to make evidence inadmissible as result of failure to inquire as to defendant's understanding of meaning of affirmation-- Plaintiff granted leave to read in questions, answers from examination for discovery of defendant subject to defendant's right to propose additional passages be read in by way of explanation; defendant given leave to oppose reading in of questions, answers where untranslated exchanges between defendant, interpreter raising doubt as to whether question answered one asked--Federal Court Rules, 1998, SOR/98-106, rr. 97, 237(6), 288.