Date: 20020628
Docket: T-2095-01
Neutral Citation: 2002 FCT 732
BETWEEN:
ALLAN ARTHUR CRAWSHAW
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER
HARGRAVE P.
The Applicant has applied, by motion in writing, to have his judicial review application, in turn, dealt with in writing. The Respondent has taken no position.
[2] Mr. Crawshaw refers to no case authority, but sets out, in three paragraphs in a succinct affidavit that, as an inmate at Ferndale Minimum Security Institution, he has no funds to either retain a lawyer, or to pay for an escort to and from the Court for an oral hearing. He also fears that he would be at a disadvantage in making his argument in open court, as opposed to argument by way of written submissions. Finally, he points out that were the Court to make a Rule 45 order, compelling the Crown to bring him before the Court, that would be an additional and needless cost to the taxpayers. In full:
2. That I am an inmate of Ferndale Minimum Security Institution and do not have the funds to retain a lawyer to act on my behalf in this matter nor do I have the funds to pay for Escorts to and from the Federal Courts.
3. That I do not possess the legal experience to pursue this matter in open Court and I would be at a disadvantage if the matter were not heard in writing.
4. That I do not have the means or ability to attend the matter in open Court so that this would mean that the Court would have to make an order that the Applicant be brought before the Court pursuant to Rule 45, which would be an additional and needless cost to the taxpayers.
This is a model of a concise and to the point affidavit.
[3] Absent relevant circumstances, judicial review is almost always dealt with by way of an oral hearing. Two cases come to mind deciding with judicial review conducted in writing.
In MacDonald v. National Parole Board [1986] 3 F.C. 157 Mr. Justice Muldoon dealt with an application to, among other things, quash a decision rendered by the respondent which had denied the applicant day parole. Mr. Justice Muldoon pointed to an assumption in favour of a motion in writing, in the circumstances of the case, the rhetorical question: "Surely very special circumstances would be needed to deprive a prisoner of the convenient access to the Court which is afforded by Rule 324, within whose contemplation there is a judge available, no matter where the applicant may be imprisoned." (page 162). He then went on to consider another factor. He recognized that the Court could not compel an individual to be represented by counsel and that a lay person may be more comfortable in making written representations, thus an unrepresented prison inmate ought to be afforded access to the Court through written argument:
There is yet another factor to consider. The Court cannot compel an individual applicant to be represented by counsel, advisable as that may be, because every individual who complies with the procedural rules has an undeniable right of access to, and audience in, the Court, subject always to normal requirements of decorum. Not everyone - indeed, not every barrister - is effective in expressing oral submissions to a tribunal. So, to deny unrepresented prisoners the access afforded by Rule 324, could well be to compel a perhaps inarticulate, ill-educated person (unlike the present applicant) to make a hopelessly inept and ineffectual oral submission, if that person be determined to place his complaints before the Court. More appropriate is to permit a prisoner, at the utterly inconsequential risk of displaying shaky spelling and grammar, to reflect upon his or her words in composing written submissions at a time of his or her own choosing and perhaps with the aid of someone more literate than the applicant. (page 163)
In the MacDonald decision Mr. Justice Muldoon looked upon access to the Court on judicial review, through written submissions, as a right if such were required in order to obtain an audience with the Court, subject of course to the usual requirements of decorum.
In Li v. Commissioner of Corrections (1997) 119 F.T.R. 285 Mr Justice Gibson, while allowing judicial review in writing, took a different view. He indicated a need for special circumstances, for he felt that judicial review in writing was an exceptional procedure:
This matter, on application by the applicant, has been dealt with pursuant to Federal Court Rule 324, that is to say, without an oral hearing. I was advised by the Court Registry that counsel for the respondent orally indicated that the respondent did not oppose the matter being dealt with without a hearing. This is an exceptional procedure. The applicant was unrepresented, is serving a long term of imprisonment, and indicated to the court that he lacked funds to pay for escort services from his place of incarceration to a hearing before the court. But for these special circumstances, I would not have been prepared to deal with this matter without an oral hearing. (page 287)
The reasons of the judges in MacDonald and in Li, while both acknowledging that judicial review applications may be dealt with in writing, represent two ends of a spectrum. In the former, Mr. Justice Muldoon looked upon the use of written submissions, in deciding a judicial review matter, as akin to a right, where the alternative might be to either deprive a prisoner of convenient access to the Court or to handicap that person in making submissions. At the other end of the spectrum Mr. Justice Gibson looked upon dealing with judicial review in writing as an exceptional procedure only to be countenanced where there are special circumstances.
While the proper test ought to be decided, with authority, by the judges who actually deal with judicial review, I favour Mr. Justice Muldoon's approach, particularly given that both MacDonald and Li were decided under the pre-1998 Rules, which allowed a motion in writing only where the Court considered it expedient. Some of the history of the motion in writing, in the Federal Court, leading up to the expediency test and Rule 324, is set out by Chief Justice Jackett in Smith v. Attorney General of Canada (1997) 19 N.R. 239 (F.C.A.) at pages 249 - 250. Under the pre-1998 Rules, the Court had a clear discretion to determine whether the nature of the application was such that it was expedient to dispose of it in writing. In contrast, present Rule 369 is very much more direct. It grants a right, subject to the implied ability of the Court in exercising its discretion, to require an oral hearing:
369.(1) Motions in writing -- A party may, in a notice of motion, request that the motion be decided on the basis of written representations.
Continuing with the idea of requiring an oral hearing, Rule 369(2) allows the Court the discretion to change a motion in writing into an oral motion, on the application of a respondent, supported by the usual material, including a memorandum of fact and law setting out the reasons why the motion ought not be disposed of in writing. Such argument, in favour of the oral hearing of a motion in writing, requires substantial evidence to the effect that the matter cannot adequately be disposed of in writing: see for example Sterritt v. Canada (1996) 98 F.T.R. 68 at 70, affirmed by the Trial Division (1996) 98 F.T.R. 72.
Given the far more permissive approach taken in the 1998 Rules, the approach taken by Mr. Justice Muldoon, in MacDonald, that there should be special circumstances in order to deprive a litigant of convenient access by way of applications in writing, particularly where expense and imprisonment are clear factors and where an ill at ease lay litigant may be unable to make apt and effectual oral submission, is preferable. Of course, as Mr. Justice Muldoon points out, there must be appropriate compliance with procedural rules and with the normal requirements of decorum. Moreover, the Court may always require an oral hearing where, as I have pointed out, there is substantial evidence that the matter cannot be presented adequately in writing.
In the present instance I see no reason why this judicial review proceeding and the two applications with which it has been consolidated, Court Files T-1705-01 and T-180-02, ought not to be dealt with as applications in writing. To deny the written motion procedure to Mr. Crawshaw would not only deprive him of any convenient and meaningful access to the Court, but might well also deny him any access.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
28 June 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2095-01
STYLE OF CAUSE: Allan Arthur Crawshaw v. AGC
PLACE OF HEARING: Motion in writing
DATE OF HEARING: -
REASONS FOR ORDER: HARGRAVE P.
DATED: 28 June 2002
APPEARANCES:
- FOR APPLICANT
- FOR RESPONDENT
SOLICITORS OF RECORD:
Allan Arthur Crawshaw FOR APPLICANT
Deputy Attorney General of Canada FOR RESPONDENT
Vancouver, British Columbia