April 23, 2002
Canada (Minister of Citizenship and Immigration) v. Fast, 2002 FCT 542 (CanLII)
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDERPELLETIER 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 CANADANames 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