Avaaz Application

Court File No.
:

FEDERAL COURT

BETWEEN:

KATHLEEN TROTTER

Applicant

- and-

AUDITOR GENERAL OF CANADA

Respondent

MEMORANDUM OF FACT AND LAW OF THE APPLICANT

(Re: Application for Judicial Review of Auditor General of Canada Pursuant to Section lS.l of the Federal Courts Act)

PART I-FACTS

A) Overview

1. The Applicant submits this memorandum of fact and law in support of her

application for a writ of mandamus under Section 24(1) of the Canadian Charter of

Rights and Freedoms in respect of the failure of the Auditor General of Canada to

disclose the Auditor General's final report on the G8 Infrastructure Fund (the "Report").

2. On April 11, 2011, the Canadian Press reported that it had obtained a "leaked"

draft of the Report, which disclosed that the Government of Canada had misused as much

as $50 million in connection with the 2010 G8 summit. It also reported that the Government had misinformed Parliament about these expenditures. A Government minister stated that the Canadian Press story was inaccurate. He claimed that the final Report does not accuse the Government of misleading Parliament.

3. In the midst of these conflicting accounts, the Applicant and many other Canadians urged the Auditor General to publish the Report prior to the election. The Auditor General refused to disclose the Report until after the May 2, 2011 federal election.

4. The Auditor General asserted that she is required to disclose the Report to Parliament before she discloses it to the general public. She maintains that her hands are tied by the Auditor General Act, R.S.C. 1985, c. A-17 (the "Act") in this regard.

5. The Auditor General's interpretation of the law is wrong. The Act does not

prevent her from disclosing the Report to the public now. In fact, the Charter requires it.

6. The Auditor General's refusal to disclose the Report violates the Applicant's constitutional rights (and the constitutional rights of all Canadians) under Sections 2(b) and 3 of the Charter. Her decision to interpret her enabling statute in this way denies Canadians access to this information at a time when it is most valuable to them.

7. Section 2(b) of the Charter protects the Applicant's constitutional right of access to government documents where access is necessary to permit meaningful discussion on a matter of public importance. In light of the conflicting media reports about the propriety

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of the Government's spending on the G8 summit, a meaningful discussion about this issue is impossible without the Report.

8. Section 3 of the Charter protects the rights of Canadians to be reasonably informed about their choices in an election. Voters cannot be reasonably informed about election choices if an official report about alleged Government misconduct is shielded from public scrutiny prior to an election.

9. Accordingly, the only way to vindicate the Applicant's constitutional rights under Sections 2(b) and 3 is to order the immediate disclosure of the Report under Section 24(1) of the Charter so that the Applicant may engage in an informed debate with her fellow citizens in advance of the election.

10. This Application should proceed on an expedited basis. Given that the federal election is less than one week away, the issues in this Application will be rendered moot if the hearing is not expedited. The Applicant seeks the immediate disclosure of the Report so that she can engage in a meaningful debate with her fellow citizens for the specific purpose of casting an informed vote in the upcoming election. Once the election is over, it will be too late.

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B) Factual and Procedural History

11. The Applicant Kathleen Trotter is a resident of the City of Toronto. As a citizen

of Canada and taxpayer, she has standing to bring the instant action.

Affidavit of Kathleen Trotter sworn April 24, 2011, Application Record, Tab 2, para. 1

12. The Respondent is the Auditor General. The Auditor General is an Officer of

Parliament who audits federal government departments and agencies, most Crown

corporations, and many other federal organizations, and reports publicly to the House of

Commons on matters that the Auditor General believes should be brought to its attention.

The Auditor General of Canada is also the auditor for the governments of Nunavut, the

Yukon, and the Northwest Territories, and reports directly to their legislative assemblies.

The Auditor General's powers and responsibilities are set forth in the Act.

Exhibit "E" to the Affidavit of Kathleen Trotter: Auditor General's Website, "Who We Are", Application Record, Tab 2E

13. On April 11, 2011, the Canadian Press reported that it had obtained a "leaked"

draft of the Auditor General's report on the G8 Infrastructure Fund, which disclosed that

the Government of Canada had misused as much as $50 million in connection with the

2010 G8 summit.


14. The Canadian Press further reported that the Report revealed that the Government

had misinformed Parliament to win approval for the $50 million Fund.


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15. According to the Canadian Press, the Report disclosed that although the purported purpose of the Fund was to improve infrastructure for the G8 summit, it was in fact spent on questionable projects in the riding of Industry Minister, Tony Clement.


16. According to the Canadian Press report, the Auditor General's Report revealed that a local "G8 summit liaison and implementation team" - comprised of Mr. Clement, the mayor of Huntsville, and the general manager of Deerhurst Resort, which hosted the summit - chose the 32 projects that received funding, but that there was no apparent regard for the needs of the summit or the conditions laid down by the government. Among the questionable projects funded were:

• $274,000 on public toilets 20 km from the summit site;

• $100,000 on a gazebo an hour's drive away;

• $1. I-million for sidewalk and tree upgrades 100 km away;

• $194,000 for a park 100 km away; and

• $745,000 on downtown improvements for three towns nearly 70 kIn away.


17. On the same day, however, the Canadian Press reported that the Minister of Infrastructure (now a Conservative candidate) John Baird insisted that the Report had changed considerably from draft to draft and that a later version did not say that the Canadian government "misinformed" Parliament. Mr. Clement, Mr. Baird and the

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Mayor of Huntsville all denied that there was anything untoward about the way funding

was distributed.


18. All of this has left the Applicant confused. She considers the Auditor General a

reliable, objective source of information about the government's management of tax

dollars. She would like to have a reliable, objective report about public spending on the

G8 summit in order to engage in meaningful discussions with her friends, family and

colleagues before the election. She cannot do that based on third-hand information about

draft reports and leaks.

Affidavit of Kathleen Trotter sworn April 24, 2011, Application Record, Tab 2, paras. 7, 9-10

19. On April 11, 2011, the Auditor General responded to the public demands for the

Report by issuing a statement that her Office "will not release or comment on our audit

report on the G8 Legacy Infrastructure Fund", notwithstanding the fact that all four of the

political parties that were represented in Parliament have called for the Report to be

released. According to the Auditor General, "[u]nder the Auditor General Act, [the

Auditor General] can only present reports when Parliament is sitting."

Exhibit "C" to the Affidavit of Kathleen Trotter: Statement of the Auditor General dated April 11, 2011, Application Record, Tab 2C

20. Further, the Auditor General "strongly caution [ ed]" the public to wait until the

final Report has been tabled in Parliament and made public. She stated that "[t]here are

indications that an early draft of this report may have been released by someone outside

our Office", but that "[0 ]nly the final report that is tabled in Parliament represents our

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audit findings and conclusions". It is clear from the media reports that a final Report has

been prepared.


Affidavit of Kathleen Trotter swomApril24, 2011, Application Record, Tab 2, para. 11

21. As an elector, the Applicant cannot wait until the next Parliament is formed. If it

is true that the last Canadian Government misused taxpayer money in relation to the G8

summit and misled Parliament in the process, the Applicant will refuse to vote for the

governing party in the upcoming election. She will also attempt to persuade her friends,

family and colleagues to do the same. She wants accurate information to make this

choice.


22. The Applicant believes that the Auditor General has prepared a final version of

the Report because she read a CBC News article that referred repeatedly to the "final"

version of the Report. In particular, CBC News reported that while the reference to the

misleading of Parliament was removed, the changes in the final version of the Report

were not substantial. In addition, the Applicant read in the Canadian Press article that,

before the election was called, the Auditor General was planning on tabling the final

report in Parliament on April 5,2011.


23. Given that all political parties were calling for the release of the Report and that

the public was stepping up the pressure on the Office of the Auditor General to do so, the

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Applicant believed that there was a reasonable possibility that the Auditor General would indeed release the final version of the Report before the upcoming election.


24. As more time passed and as the election moved closer, the Applicant became increasingly concerned that the Report would not be disclosed before the election. The significance of the Canadian government's potential misconduct regarding the funding of the G8 summit also acquired primacy in the Applicant's conversations with her family, friends and colleagues about the election. Accordingly, the Applicant began to take more direct steps to press for the immediate disclosure of the Report.


25. First, the Applicant signed a petition organized by Avaaz (an international advocacy group) calling on the Auditor General to immediately release the final version of the Report to the public. Over 80,000 Canadians joined the Applicant in this petition.


26. Second, on April 21, 2011, the Applicant wrote to the Office of the Auditor General of Canada with the support of A vaaz to request the immediate release of the final version of the Report and to advise that in the event the Auditor General continues to withhold the Report, she intends on hiring a lawyer to ask a judge to decide if Canadians are entitled to this information before the election. The Applicant has not yet heard back from anyone in the Office of the Auditor General of Canada.


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PART II - POINTS IN ISSUE

27. The following issues are raised by this Application:

a. Whether the Act permits the disclosure of the Report before it is tabled in Parliament;

b. Whether Sections 2(b) and 3 of the Charter require the disclosure of the Report before the upcoming election;

c. Whether this Court should order disclosure of the Report under Section 24(1) of the Charter;

d. Whether the hearing of this Application should be expedited.

PART III - SUBMISSIONS

I. THE ACT PERMITS DISCLOSURE OF THE REPORT

28. The Auditor General's position that the Act prevents her from disclosing the Report to Parliament is wrong at law. There is nothing in the Act that addresses the submission of reports during an election writ period. In the absence of any express statutory provision, the Auditor General has interpreted the Act's silence on this issue to mean that her hands are tied and that she must keep the Report secret until a new Parliament is sworn. The interpretation that is more consistent with the purposes of the Act and the Charter is that where an election has been called and the Auditor General cannot submit her reports to Parliament, the Auditor General should disclose her reports to the public. This interpretation is consistent with Charter rights and values. The

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Auditor General's interpretation is not. It is a basic principle of statutory interpretation

that where an Act is capable of multiple interpretations - one that is constitutional and

one that is not - the constitutional interpretation is preferred, as Parliament is presumed

to have complied with the Constitution in enacting the statute.

29. The Auditor General is a creature of statute. Her powers and responsibilities are

circumscribed by the Act. Consistent with the Act, the Auditor General describes her

functions in the following manner:

The Auditor General is an Officer of Parliament who audits federal government departments and agencies, most Crown corporations, and many other federal organizations, and reports publicly to the House of Commons on matters that the Auditor General believes should be brought to its attention.


30. The Act guarantees the Auditor General's independence from the Government.

Despite being an "Officer of Parliament," the Auditor General is appointed for a lengthy

tenure (10 years) and may only be removed "for cause by the Governor in Council on

address of the Senate and House of Commons."

Auditor General Act, R.S.C. 1985, c. A-l7, s. 3(1.1)

31. The Act further provides that the Auditor General shall report annually to the

House of Commons, and may, additionally, submit three periodic reports to the House of

Commons each year. Further, the Auditor General may submit any number of "special

report [ s]" to the House of Commons "on any matter of pressing importance or urgency

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that, in the opinion of the Auditor General, should not be deferred until the presentation of the next report ... ".

Auditor General Act, R.S.C. 1985, c. A-17, SS. 7(1), 8(1)

32. Periodic reports submitted under s. 7(1) are to be submitted to the Speaker of the House of Commons 30 days after giving notice to Parliament of a forthcoming report. The Speaker is then required to submit the report to the House of Commons "forthwith." If the House is not sitting, the Speaker may submit the report "on any of the first fifteen days on which that House is sitting after the speaker receives it."

Auditor General Act, supra, s. 7(5)

33. Special reports can be submitted to the Speaker without first giving notice. Upon receipt of the special report, the report "shall be laid before the House of Commons by the Speaker of the House of Commons forthwith after receipt of him, or if that House is not then sitting, on the first day next thereafter that the House of Commons is sitting .... "

Auditor General Act, supra, s. 8(2)

34. The Office of the Auditor General also takes additional steps to ensure that the public is informed of its findings beyond those expressly set out in the Act. For instance, the Auditor General conducts a confidential preview of its reports for MPs and Senators several hours before they are tabled in the House of Commons and, at the same time, conducts a media lock-up in order to ensure that journalists have time to understand the reports. In addition, the Auditor General holds a news conference during the media lockup, during which the Auditor General makes a short statement and answers questions.

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All of this happens before the reports are tabled in the House of Commons. The Office of the Auditor General then publishes its reports for the public on its website once they have been tabled in Parliament.

Affidavit of Kathleen Trotter sworn April24, 2011, Application Record, Tab 2, para. 13

35. As part of its spring 2011 reporting to Parliament, the Auditor General drafted and completed the Report, which evaluates the Government's expenditures in connection with the G8 summit. But for the writ of election, which dissolved Parliament, the Report would likely have already been submitted to Parliament. Rather than publish this Report to the public prior to the election - when it is most useful to the voters - the Auditor General has taken the position that it must wait until after the election of the next Parliament before releasing the Report to the public.


36. Nowhere in the Act does it require that all reports be kept confidential from the public before a report is presented to Parliament. The Act also does not address how reports are to be submitted during an election writ period in which Parliament has been dissolved.

37. In the absence of express language requiring confidentiality of Auditor General reports prior to their release to the House of Commons, Parliament cannot be presumed to have intended such secrecy. Such a presumption would be wholly inconsistent with the purpose of the Office of the Auditor General, which, in the Auditor General's own words, is to "report[] publicly to the House of Commons on matters that the Auditor General believes should be brought to its attention" (emphasis added). Such a presumption would

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also be inconsistent with the steps that the Office of the Auditor General typically takes

to inform the public of its findings above and beyond those mandated by the Act, such as

conducting media lock-ups.


38. It cannot be that the Government can postpone indefinitely the release of an

important Auditor General report simply by calling for an election. If that were the case,

then any Government could insulate itself from criticism contained in an Auditor General

report by simply proroguing or dissolving Parliament, thereby postponing the public

release of a report until it is politically expedient to do so. Such a result is not consistent

with the role, duties and functions of the Auditor General. It is also inconsistent with

Canadians' right to know and right to cast an informed vote.

II. PARLIAMENT Is PRESUMED To HAVE ACTED CONSTITUTIONALLY

IN ENACTING THE ACT

39. It is a well-established principle of statutory interpretation that Parliament must be

presumed to have enacted a statute in compliance with the Constitution. This

presumption "acknowledges the centrality of constitutional values in the legislative

process, and more broadly, in the political and legal culture of Canada." Thus, "where

two readings of a provision are equally plausible, the interpretation which accords with

Charter values should be adopted."

R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 33 (S.C.c.)

Ruth Sullivan, Sullivan on the Construction of Statutes 5th edition (Markham: LexisNexis, 2008) at 458-461

Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 at para. 35 (S.C.C.)

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R. v. McKay, [1965] S.C.R. 798 at 803-804 (S.C.C.)

40. For the same reasons, legislation conferring an imprecise discretion must be

interpreted as not allowing Charter rights to be infringed. As Lamer J. (as he then was

and dissenting in part) explained in Slaight Communications Inc. v. Davidson:

As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1078 (S.C.C.)

Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at para. 68 (S.C.C.)

41. Applying these principles, the Auditor General must exercise her authority in a

manner that complies with the Charter. In the absence of express statutory authority to

the contrary, she cannot interpret the Act to permit her to act in a manner that violates the

Charter rights of Canadians.

III. THE AUDITOR GENERAL'S INTERPRETATION OF THE ACT VIOLATES THE

ApPLICANT'S CONSTITUTIONAL RIGHTS

42. The Auditor General's refusal to disclose the Report violates the Applicant's

rights under both Sections 2(b) and 3 of the Charter. These infringements of the

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Applicant's Charter rights are not prescribed by law and thus cannot be justified under s.

1 of the Charter.

A) The Report is Necessary for Meaningful Commentary on a Matter of Public Importance

43. Section 2(b) protects Canadians' rights to freedom of expression. As the Supreme

Court has consistently held, Section 2(b) rights are not limited to the rights of speakers,

but also include the rights of listeners to receive information.

Fordv. Quebec (Attorney Genera!), [1988] 2 S.C.R. 712 at 766-767 (S.C.C.)

44. Expression that concerns the proper functioning of government institutions enjoys

a special place in Canadian democracy. As Arbour J. has noted, "[t]he full and fair

discussion of public institutions, which is vital to any democracy, is the raison d'etre of

the s. 2(b) guarantees."

Ruby v. Canada (Solicitor General), [2002] 2 S.C.R. 3 at para. 53 (S.C.C.)

45. In Ontario (Public Safety and Security) v. Criminal Lawyers' Association, the

Supreme Court explained that Section 2( b) protects a right to access to government

documents "where access is necessary to permit meaningful discussion on a matter of

public importance, subject to privileges and functional constraints."

Ontario (Public Safety and Security) v. Criminal Lawyers' Association, [2010] 1 S.C.R. 815 at para. 31 (S.C. C.)

46. Criminal Lawyers' Association establishes a two-part test for determining

whether Section 2( b) requires disclosure of a government document:

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(1) "the claimant must establish that the denial of access effectively precludes meaningful commentary" on a "matter of public importance"; and

(2) there are no "privileges or functional constraints" that preclude access to the document.

Ontario (Public Safety and Security) v. Criminal Lawyers' Association, supra at para. 31 (S.C.C.)

47. Both requirements are satisfied in the instant case. The Government's G8 expenditures is a matter of public importance. Electors cannot have meaningful discussions about this issue without access to the Report.

48. The subject matter ,of the Report concerns whether the Government's use of public funds was an abuse of power. This is a matter of public importance. That the Auditor General believed it necessary to conduct an audit into the Government's G8 spending is itself proof that this issue is a matter of public importance. Moreover, the fact that over 80,000 Canadians and all four of the political parties who were represented in Parliament have urged the release of the Report further underscores the significance of this issue to Canadians.


49. Further, there are competing claims about the Report's contents. The Report is necessary to permit meaningful discussion of the issue. According the Canadian Press, the Report found that much of the funding set aside by Parliament for spending on G8 infrastructure was diverted to questionable projects for political ends. The Canadian Press also reported that the Auditor General found that the Government had

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"misinformed Parliament" about the use of these funds. Government representatives say

that the Canadian Press got it wrong, and that the "leaked" report was not the Auditor

General's final version of the Report. . According to the Government, the final Report

does not accuse the Government of misinforming Parliament. The Auditor General

herself has refused to comment on the accuracy of these competing claims.

Affidavit of Kathleen Trotter sworn April 24, 2011, Application Record, Tab 2, paras. 2-3, 5, 9

50. In light of these conflicting claims and the Auditor General's unwillingness to

correct the record, the only way to know the truth about the contents of the Report - and

thus the only way to have a meaningful discussion about the Government's G8

expenditures - is for the Auditor General to release the Report. Anything less than

disclosure of the Report would undermine the right to know. This is the precise

guarantee of Section 2( b) of the Charter.

B) The Right to Be Reasonably Informed About Election Choices Requires Release of the Report

51. The Applicant's claim for access to the Report is particularly strong in the context

of an imminent election. Political speech takes on an added importance during an

election because Canadians' Section 3 voting rights are implicated.

52. Section 3 of the Charter provides that:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Canadian Charter of Rights and Freedoms, s. 3

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53. As the Supreme Court has repeatedly held, Section 3 of the Charter encompasses

more than the bare right to place a ballot in a box. It also protects the integrity of

Canada's participatory democracy. Section 3, therefore, "includes not only the right of

each citizen to have and to vote for an elected representative in Parliament or a legislative

assembly, but also to the right of each citizen to playa meaningful role in the electoral

process."

Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 at paras. 19,25,29 (S.C.C.)

54. The Supreme Court has further held that, in order to playa meaningful role in the

electoral process, Canadians must have the right to be meaningfully informed of all the

possible choices in an election. As the Supreme Court stated in Harper v. Canada:

The right to meaningful participation includes a citizen's right to exercise his or her vote in an informed manner. For a voter to be well informed, the citizen must be able to weigh the relative strengths and weaknesses of each candidate and political party. The citizen must also be able to consider opposing aspects of issues associated with certain candidates and political parties where they exist. In short, the voter has a right to be "reasonably informed of all the possible choices".

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 at para. 71 (S.C.C.)

55. The Auditor General's refusal to produce the Report deprives voters of their right

to be "reasonably informed of all the possible choices." Voters cannot be reasonably

informed about election choices if a report about Government misconduct is shielded

from public scrutiny. Without access to the Report, Canadians will not be reasonably

informed about the Government's expenditures in connection with the G8 summit - an

important issue inthe May 2, 2011 election.

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C) The Report Is Not Protected by Privilege

56. Having made out a prima facie case that the Applicant is entitled to the Report,

the Court must consider whether the Report is "protected by privilege or if production of

the documents would interfere with the proper functioning of the governmental

institution in question."

Ontario (Public Safety and Security) v. Criminal Lawyers' Association, supra at para. 31 (S.C.C.)

57. The information in question is not protected by privilege nor is it incompatible

with the proper functioning of the Office of the Auditor General. All of the Auditor

General's reports are published for the general public; indeed, the role of the Auditor

General is to "report[] publicly to the House of Commons on matters that the Auditor

General believes should be brought to its attention" (emphasis added).


58. In the instant case, the Auditor General does not - and indeed cannot - argue

that the Report is privileged. Nor does Auditor General intend to keep the Report secret.

Rather, she attempts to keep the Report secret only until after the May 2, 2011 election.

As discussed above, however, the Auditor General's position is not based on any

purported privilege, but on an erroneous interpretation of the Act.


59. In the absence of any applicable privilege, the Applicant is entitled to the Report.

The Report is necessary for meaningful discussion about the Government's expenditures

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in connection with the G8 summit and is necessary for voters to be reasonably and properly informed of election choices in the upcoming election.

D) The Charter Infringement Is Not Prescribed by Law

60. Section 1 of the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Canadian Charter of Rights and Freedoms, s. 1

61. In the instant case, the Government cannot justify this infringement of the Applicant's Charter rights under s. 1 because the government action at issue - the Auditor General's decision to withhold the Report - is not prescribed by law and thus is not capable of justification.

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VI. THE COURT SHOULD ORDER THE AUDITOR GENERAL To

DISCLOSE THE REPORT

62. In light of the foregoing, the appropriate remedy is to order the Auditor General to

disclose the Report to the Applicant pursuant to Section 24(1) of the Charter. That

provision states:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Canadian Charter of Rights and Freedoms, s. 24( 1)

63. As the Supreme Court of Canada observed in R. v. Mills, it is "difficult to imagine

language which could give the court a wider and less fettered discretion". The wide

scope of Section 24(1) is justified by the significance of its purpose. To use the language

of McLachlin C.J. in R. v. 974649 Ontario Inc.:

Section 24(1)' s interpretation necessarily resonates across all Charter rights, since a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach. From the outset, this Court has characterized the purpose of s. 24(1) as the provision of a "direct remedy" (Mills, supra, p. 953, per McIntyre J.). As Lamer J. stated in Mills, "[a] remedy must be easily available and constitutional rights should not be 'smothered in procedural delays and difficulties'" (p. 882). Anything less would undermine the role of s. 24(1) as a cornerstone upon which the rights and freedoms guaranteed by the Charter are founded, and a critical means by which they are realized and preserved.

R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 at para. 20 (S.C.C.)

R. v. Mills, [1986] 1 S.C.R. 863 at para. 279 (S.C.C.)

64. The only way to vindicate the Applicant's rights under Sections 2(b) and 3 of the

Charter is to order the immediate disclosure of the Auditor General's Report so that the

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Applicant may engage in a meaningful and informed debate with her fellow citizens in

advance of the election. Anything less (e.g. a mere declaration) would represent a hollow

victory.

65. The five factors that the Supreme Court articulated in Doucet-Boudreau for an

evaluation of the appropriateness and justice of a potential remed~ support the

Applicant's position. Notably, the Court announced these factors in the context of an

analysis of whether to grant a mandatory remedy, which is what is being sought here (i. e.

a writ of mandamus).

Doucet-Boudreau v. Nova Scotia (Minister of Education). [2003] 3 S.C.R. 3 at paras. 55-59 (S.C.C.)

66. First, an appropriate and just remedy in the circumstances of a Charter claim is

one that "meaningfully vindicates" the rights and freedoms of the claimants. As

discussed, this militates in favour of granting disclosure of the Auditor General's Report

in the case at bar. The breach of the Applicant's rights is the withholding of the Auditor

General's Report; accordingly, the only way to meaningfully vindicate those rights is to

order disclosure. The remedy flows directly from the breach.

Doucet-Boudreau v. Nova Scotia (Minister of Education). supra at para. 55 (S.C.C.)

67. Second, the Court must ensure that the remedy employs "means that are

legitimate within the framework of our constitutional democracy". Related to this is the

third factor, which requires that the remedy be a 'judicial one that vindicates the right

while invoking the function and powers of a court". An order of disclosure meets both of

these criteria. Indeed, there is nothing novel or controversial about the remedy of

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disclosure. It is ordered all the time in the criminal and quasi-criminal law context to vindicate Section 7 interests. A judicial order of disclosure does not in any way stretch the bounds of the Court's institutional role in our constitutional democracy.

Doucet-Boudreau v. Nova Scotia (Minister 0/ Education), supra at paras. 56-57 (S.C.C.) Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125 at paras. 30-31 (S.C.C.)

68. Fourth, while the Court must ensure that the right of the claimant is fully vindicated, the Court must also ensure that the remedy is "fair to the party against whom the order is made". No concerns of unfairness arise on the facts of this case. As submitted above, this is not a case in which the proposed remedy would represent an intrusion into the institutional role or expertise of another branch of government. Neither is this a case in which there are a range of potential remedies that could meaningfully vindicate the claimant's Charter rights, in which case it may be argued that the Court should defer to the Government's choice of remedy. Finally, even if this were such a case, it would be inappropriate to defer to the Government's choice of remedy because of the extraordinary urgency of the situation. The federal election is less than one week away and the immediate disclosure of the Auditor General's Report is, therefore, the only way to protect the Applicant's right to free expression and right to vote under Sections 2(b) and 3 of the Charter.

Doucet-Boudreau v. Nova Scotia (Minister a/Education), supra at para. 58 (S.C.C.)

69. Fifth, and finally, the Supreme Court held in Doucet-Boudreau that the courts must adopt a remedial approach that is "flexible and responsive" because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and

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just remedies demand. Thus, to the extent that there is anything novel about an order of disclosure of the Auditor General's Report in the lead up to a federal election, the , Applicant submits that it is a necessary step in the evolution of the jurisprudence under Section 24(1) in order to ensure that free expression and the right to vote are meaningful entitlements and not empty guarantees.

Doucet-Boudreau v. Nova Scotia (Minister of Education), supra at para. 59 (S.C.C.)

V. THE HEARING OF THIS ApPLICATION SHOULD BE EXPEDITED

70. Rule 8(1) of the Federal Courts Rules provides that "the Court may extend or abridge a period provided by these Rules". The Applicant seeks an order abridging the time of service required for its Application materials pursuant to this rule and a hearing of the Application on an expedited basis.

Federal Courts Rules, Rule 8(1)

71. This Court has held that the following factors are to be considered on a motion to expedite an application for judicial review: (i) the urgency of the proceeding; (ii) the prejudice that would be caused to the Respondent if the proceeding is expedited; (iii) whether the proceeding will be rendered moot if it is not expedited; and (iv) whether expediting the proceeding will result in the cancellation of other hearings. The Applicant submits that a balanced consideration of each of these factors supports an order of an expedited hearing in this case.

Democracy Watch v. Canada (Prime Minister), [2008] F.C,J. No. 1394 at para. 16 (F.C.)

24

72. First, this is an extraordinarily urgent proceeding. The federal election is only days away and there is perhaps no time more critical for the meaningful exercise of the right to free expression and the right to vote than on the eve of an election, especially one that will. determine the federal government.

73. It was only two weeks ago on April 11 th that the Canadian Press reported the contents of the leaked draft of the Report. Since that time, the Applicant has acted in a manner that is responsible on the one hand - by not running to litigation without first attempting less costly and disruptive measures - and in keeping with the urgency of the situation on the other hand.

74. The Applicant reasonably believed at first that the Report would be disclosed, given that all four political parties were calling for the release of the Report and public pressure on the Office of the Auditor General was escalating. As the election loomed closer and the significance of the issues with which the Report was concerned increased in the public debate, the Applicant adjusted her behaviour accordingly and took more direct steps to pursue the release of the Report. She signed a petition organized by A vaaz calling on the Auditor General to immediately release the Report to the public and she wrote a letter to the Office of the Auditor General of Canada to request the immediate release of the Report. The Applicant then commenced this Application.

Affidavit of Kathleen Trotter sworn April 24, 2011, Application Record, Tab 2, paras. 14-17

75. In summary, the Applicant has pursued her Charter rights diligently in the incredibly short timeframe in which all of this has taken place. This militates in favour of an expedited hearing of this Application.

25

76. Second, while there is no doubt that the timing of this application will cause some prejudice to the Respondent, it is a prejudice that is derived from the extraordinary nature of this case and not from any conduct of the Applicant. Moreover, the prejudice that would result is not as great as it would be in other constitutional cases because the case at bar does not require an extensive record to be prepared and filed with the Court. The Applicant is not challenging the constitutionality of any statutory provisions in this case; rather, the Applicant is simply challenging the constitutionality of the Auditor General's actions, which the Applicant contends are not prescribed by law. Accordingly, all that is involved is a simple determination of whether the refusal to disclose the Auditor General's Report is mandated by the Act (the Applicant says it is not) and whether it violates Sections 2(b) and/or 3 of the Charter (the Applicant says it does). No Section 1 record need be compiled.

77. In any event, any prejudice that would be caused to the Respondent is far outweighed by the prejudice that will be caused to the Charter rights of the Applicant (and, indeed, of all Canadians) if the Applicant is not given access to the truth about the Canadian government's funding of the G8 summit prior to the upcoming election.

78. Third, the issues in this Application will be rendered moot if the hearing is not expedited. The Applicant seeks the immediate disclosure of the Report so that she can engage in a meaningful debate with her fellow citizens for the specific purpose of ensuring that they all cast an informed vote in the upcoming election. Once the election is over, it will be too late. It is cold comfort to tell a Charter claimant that he or she can only exercise his or her rights and freedoms outside of the time period in which they

26

matter the most. If an expedited hearing is not granted in this case, the Applicant's interests under Sections 2(b) and 3 of the Charter will be irreparably harmed.

79. Fourth, and finally, while the Applicant cannot speak to the issue of whether an expedited hearing would result in the cancellation of other hearings, the Applicant submits that this Application can be heard in a half day given that the constitutionality of a statutory provision is not in issue. This should minimize the impact of this case on the Court's other priorities.

80. In light of the paramount importance of the Charter interests at stake, the Applicant respectfully submits that the balance of convenience favours the granting of an expedited hearing in this case.

PART IV-ORDERS SOUGHT

81. The Applicant seeks the following relief:

(a) Abridgement of the period of service of all documents and materials

pursuant to Rule 8(1) of the Federal Courts Rules and an expedited hearing of the Application to be scheduled for a half day in the week of April 26, 2011;

(b) An order in the nature of mandamus under Section 24(1) of the Charter

requiring the Respondent to disclose the Report to the Applicant;

(c) A declaration under Section 24(1) of the Charter that the Respondent's

failure to disclose the Report violates the Applicant's right to freedom of

27

expression guaranteed by Section 2(b) of the Charter and cannot be

justified as a reasonable limit in a free and democratic society under

Section 1 of the Charter;

(d) A declaration under Section 24(1) of the Charter that the Respondent's

failure to disclose the Report violates the Applicant's right to vote

guaranteed by Section 3 of the Charter and cannot be justified as a

reasonable limit in a free and democratic society under Section 1 of the

Charter;

(e) Such other remedies as counsel may advise and this Honourable Court

may permit.

April 26, 2011

ALL OF WHICH IS RESPECTFULLY SUBMITTED

SACK GOLDBLATT MITCHELL LLP 20 Dundas Street West

Suite 1100

Toronto, Ontario

M5G2G8

Frank Addario (LSUC # 252200) T: 416.979.6446

F: 416.591.7333

Counsel for the Applicant, Kathleen Trotter

28

PART V - LIST OF AUTHORITIES

1 Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham:

LexisNexis, 2008) at 458-461

2 Application under s. 83.28 of the Criminal Codetlie), [2004] 2 S.C.R. 248 (S.C.C.)

3 Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125 (S.C.C.)

4 Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C.C.)

5 Democracy Watch v. Canada (Prime Minister), [2008] F.C.]. No. 1394 (F.C.)

6 Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 (S.C.C.)

7 Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912 (S.C.C.)

8 Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (S.C.C.)

9 Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 (S.C.C.)

10 Ontario (Public Safety and Security) v. Criminal Lawyers' Association, [2010] 1 S.C.R. 815 (S.C.C.)

11 R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (S.C.C.)

12 R. v. McKay, [1965] S.C.R. 798 (S.C.C.)

13 R. v. Mills, [1986] 1 S.c.R. 863 (S.C.C.)

14 R. v. Sharpe, [2001] 1 S.C.R. 45 (S.C.C.)

15 Ruby v. Canada (Solicitor General), [2002] 2 S.C.R. 3 (S.C.C.)

16 Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.)

29

APPENDIX A - STATUTES AND REGULATIONS

Canadian Charter of Rights and Freedoms

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Droits et libertes au Canada

1. La Charte canadienne des droits et libertes garantit les droits et libertes qui y sont enonces, Ils ne peuvent etre restreints que par une regle de droit, dans des limites qui soient raisonnables et dont la justification puisse se demontrer dans le cadre d'une societe libre et democratique.

Libertes fondamentales

2. Chacun ales libertes fondamentales suivantes:

(a) liberte de conscience et de religion;

(b) Iiberte de pensee, de croyance, d'opinion et d'expression, y compris la liberte de la presse et des autres moyens de communication;

(c) liberte de reunion pacifique;

(d) liberte d'association.

Droits democratiques des citoyens

3. Tout citoyen canadien a le droit de vote et est eligible aux elections legislatives federales ou provinciales.

Recours en cas d'atteinte aux droits et libertes

24. (1) Toute personne, victime de violation ou de negation des droits ou libertes qui lui sont garantis par la presente charte, peut s'adresser a un tribunal competent pour obtenir la reparation que le tribunal estime convenable et juste eu egard aux circonstances.

30

Auditor General Act, R.S.C. 1985, c. A-17

Appointment

3. (1) The Governor in Council shall, by commission under the Great Seal, appoint an Auditor General of Canada after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

Tenure

(1.1) The Auditor General holds office during good behaviour for a term of 10 years but may be removed for cause by the Governor in Council on address of the Senate and House of Commons.

Ceasing to hold office

(2) Despite subsections (1) and (1.1), the Auditor General ceases to hold office on reaching 65 years of age.

Re-appointment

(3) Once having served as the Auditor General, a person is not eligible for reappointment to that office.

Interim appointment

(4) In the event of the absence or incapacity of the Auditor General or if that office is vacant, the Governor in Council may appoint any qualified auditor to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

Nomination

3. (l) Le gouverneur en conseil nomme un verificateur general du Canada par commission sous Ie grand sceau, apres consultation du chef de chacun des partis reconnus au Senat et a la Chambre des communes et approbation par resolution du Senat et de la Chambre des communes.

Mandat

(1.1) Le verificateur general occupe sa charge a titre inamovible pour un mandat de dix ans, sauf revocation motivee par le gouverneur en conseil sur adresse du Senat et de la Chambre des communes.

Limite d'age

(2) Par derogation aux paragraphes (1) et (1.1), la limite d'age pour l'exercice des fonctions de verificateur general est de soixante-cinq ans.

Mandat non renouvelable

(3) Une personne qui a servi a titre de verificateur general ne peut etre nommee de nouveau a ce poste.

Interim

(4) En cas d' absence ou d' ernpechement du verificateur general ou de vacance de son poste, le gouverneur en conseil peut confier I'interirn a tout verificateur competent pour un mandat maximal de six mois et fixer la remuneration et les indemnites auxquelles celui-ci aura droit.

31

Annual and additional reports to the House of Commons

7. (1) The Auditor General shall report annually to the House of Commons and may make, in addition to any special report made under subsection 8(1) or 19(2) and the Commissioner's report under subsection 23(2), not more than three additional reports in any year to the House of Commons

(a) on the work of his office; and

(b) on whether, in carrying on the work of his office, he received all the information and explanations he required.

Idem

(2) Each report of the Auditor General under subsection (1) shall call attention to anything that he considers to be of significance and of a nature that should be brought to the attention of the House of Commons, including any cases in which he has observed that

(a) accounts have not been faithfully and properly maintained or public money has not been fully accounted for or paid, where so required by law, into the Consolidated Revenue Fund;

(b) essential records have not been maintained or the rules and procedures applied have been insufficient to safeguard and control public property, to secure an effective check on the assessment, collection and proper allocation of the revenue and to ensure that expenditures have been made only as authorized;

( c) money has been expended other than for purposes for which it was

Rapports it la Chambre des communes

7. (1) Le verificateur general etablit it l'intention de la Chambre des communes un rapport annuel; il peut egalernent etablir it son intention - outre les rapports speciaux prevus aux paragraphes 8(1) ou 19(2) et le rapport etabli par le commissaire en application du paragraphe 23(2) - au plus trois rapports supplementaires par annee. Dans chacun de ces rapports:

a) il foumit des renseignements sur les activites de son bureau;

b) il indique s'il a recu, dans l'exercice de ces activites, tous les renseignements et eclaircissements reclames.

Idem

(2) Dans le rapport mentionne au paragraphe (1), le verificateur general signale tout sujet qui, it son avis, est important et doit etre porte it

I' attention de la Chambre des communes, notamment les cas OU il a constate que :

a) les comptes n'ont pas ete tenus d'une maniere fidele et reguliere ou des deniers publics n'ont pas fait l'objet d'un compte rendu complet ou n'ont pas ete verses au Tresor lorsque cela est legalement requis;

b) les registres essentiels n' ont pas ete tenus ou les regles et procedures utilisees ont ete insuffisantes pour sauvegarder et controler les biens publics, assurer un controle efficace des cotisations, du recouvrement et de la repartition reguliere du revenu et assurer que les depenses effectuees ont ete autorisees;

c) des sommes d'argent ont ete depensees it d'autres fins que celles auxquelles le Parlement les avait affectees;

d) des sommes d' argent ont ete depensees sans egard it I'economie ou it l'efficience;

32

appropriated by Parliament;

(d) money has been expended without due regard to economy or efficiency;

(e) satisfactory procedures have not been established to measure and report the effectiveness of programs, where such procedures could appropriately and reasonably be implemented; or

(j) money has been expended without due regard to the environmental effects of those expenditures in the context of sustainable development.

Submission of annual report to Speaker and tabling in the House of Commons

(3) Each annual report by the Auditor General to the House of Commons shall be submitted to the Speaker of the House of Commons on or before December 31 in the year to which the report relates and the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.

Notice of additional reports to Speaker and tabling in the House of Commons

(4) Where the Auditor General proposes to make an additional report under subsection (1), the Auditor General shall send written notice to the Speaker of the House of Commons of the subjectmatter of the proposed report.

Submission of additional reports to Speaker and tabling in the House of Commons

(5) Each additional report of the Auditor General to the House of

e) des procedures satisfaisantes n'ont pas ete etablies pour me surer et faire rapport sur I'efficacite des programmes dans les cas OU elles peuvent convenablement et raisonnablement etre mises en ceuvre;

f) des sommes d' argent ont ete depensees sans egard a I' effet de ces depenses sur

I' environnement dans le contexte du developpernent durable.

Depot du rapport annuel devant la Chambre des communes

(3) Le rapport annuel du verificateur general a la Chambre des communes est soumis au president de la Chambre au plus tard le 31 decembre de l'annee a laquelle il se rapporte; ce demier doit le deposer devant la Chambre des communes sans delai ou, si elle ne siege pas, dans les quinze jours de seance qui suivent sa reception.

Preavis de l'objet du rapport supplementaire

(4) Le verificateur general adresse au president de la Chambre des communes un preavis circonstancie de tout rapport supplementaire qu'il entend soumettre en vertu du paragraphe (1).

Depot du rapport supplementaire devant la Chambre des communes

(5) Le rapport supplernentaire est soumis au president de la Chambre des communes le trentieme jour suivant le preavis ou a

I' expiration du delai plus long qui y est indique; le president do it deposer le rapport devant la Chambre sans delai ou, si elle ne siege pas, dans les quinze jours de seance qui suivent sa reception.

33

Commons made under subsection (1) shall be submitted to the House of Commons on the expiration of thirty days after the notice is sent pursuant to subsection (4) or any longer period that is specified in the notice and the Speaker of the House of Commons shall lay each such report before the House of Commons forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.

Special report to the House of Commons

8. (1) The Auditor General may make a special report to the House of Commons on any matter of pressing importance or urgency that, in the opinion of the Auditor General, should not be deferred until the presentation of the next report under subsection 7(1).

Submission of reports to Speaker and tabling in the House of Commons

(2) Each special report of the Auditor General to the House of Commons made under subsection (1) or 19(2) shall be submitted to the Speaker of the House of Commons and shall be laid before the House of Commons by the Speaker of the House of Commons forthwith after receipt thereof by him, or if that House is not then sitting, on the first day next thereafter that the House of Commons is sitting.

Federal Courts Act, R.S.C. 1985, c. F-7

Extraordinary remedies, federal tribunals

18. (1) Subject to section 28. the Federal Court has exclusive original jurisdiction

Rapport special

8. (1) Le verificateur general peut adresser un rapport special it la Chambre des communes sur toute affaire d'une importance ou d'une urgence telles qu'elle ne saurait, it son avis, attendre la presentation du prochain rapport en vertu du paragraphe 7(1).

Soumission des rapports au president et depot devant la Chambre des communes

(2) Les rapports speciaux du verificateur general, vises aux paragraphes (1) et 19(2) sont soumis au president de la Chambre des communes qui les depose devant la Chambre des communes immediatement ou, si elle ne siege pas, le premier jour de seance ulterieur,

Recours extraordinaires : offices federaux

18. (1) Sous reserve de l'article 28, la Cour federale a competence exclusive, en premiere instance, pour :

34

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Extraordinary remedies, members of Canadian Forces

(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.

Remedies to be obtained on application

(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

Application for judicial review

18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

Time limitation

(2) An application for judicial review in respect of a decision or an order of a

a) decerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement declaratoire contre tout office federal;

b) connaitre de toute demande de reparation de la nature visee par l'alinea a), et notamment de toute procedure engagee contre le procureur general du Canada afin d'obtenir reparation de la part d'un office federal.

Recours extraordinaires : Forces canadiennes

(2) Elle a competence exclusive, en premiere instance, dans le cas des demandes suivantes visant un membre des Forces canadiennes en poste it I' etranger : bref d' habeas corpus ad subjiciendum, de certiorari, de prohibition ou de mandamus.

Exercice des recours

(3) Les recours prevus aux paragraphes (1) ou (2) sont exerces par presentation d'une demande de controle judiciaire.

Demande de controle judiciaire

18.1 (1) Une demande de controle judiciaire peut etre presentee par le procureur general du Canada ou par quiconque est directement touche par l'objet de la demande.

Delai de presentation

. (2) Les demandes de controle judiciaire sont it presenter dans les trente jours qui suivent la premiere communication, par l' office federal,

35

federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

Powers of Federal Court

(3) On an application for judicial review, the Federal Court may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

de sa decision ou de son ordonnance au bureau du sous-procureur general du Canada ou a la partie concernee, ou dans Ie delai supplementaire qu'unjuge de la Cour federale peut, avant ou apres I' expiration de ces trente jours, fixer ou accorder.

Pouvoirs de la Cour federale

(3) Sur presentation d'une demande de controle judiciaire, la Cour federale peut :

a) ordonner a l'office federal en cause d'accomplir tout acte qu'il a illegalement omis ou refuse d'accornplir ou dont il a retarde I' execution de maniere deraisonnable;

b) declarer nul ou illegal, ou annuler, ou infirmer et renvoyer pour jugement conformement aux instructions qu'elle estime appropriees, ou prohiber ou encore restreindre toute decision, ordonnance, procedure ou tout autre acte de I' office federal.

Motifs

(4) Les mesures prevues au paragraphe (3) sont prises si la Cour federale est convaincue que I' office federal, selon Ie cas:

a) a agi sans competence, outrepasse celle-ci ou refuse de I' exercer;

b) n' a pas observe un principe de justice naturelle ou d'equite procedurale ou toute autre procedure qu'il etait legalement tenu de respecter;

c) a rendu une decision ou une ordonnance entachee d'une erreur de droit, que celle-ci so it manifeste ou non au vu du dossier;

d) a rendu une decision ou une ordonnance fondee sur une conclusion de fait erronee, tiree de facon abusive ou arbitraire ou sans

36

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

Defect in form or technical irregularity

(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may

(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and

(b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

Federal Courts Rules, SOR/98-106

Extension or abridgement

8. (l) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.

When motion may be brought

(2) A motion for an extension of time may be brought before or after the end of

tenir compte des elements dont il dispose;

e) a agi ou omis d'agir en raison d'une fraude ou de faux temoignages;

j) a agi de toute autre facon contraire it la loi.

Vice de forme

(5) La Cour federale peut rejeter toute demande de controle judiciaire fondee uniquement sur un vice de forme si elle estime qu'en l'occurrence le vice n'entraine aucun dommage important ni deni de justice et, le cas echeant, valider la decision ou I' ordonnance entachee du vice et donner effet it celle-ci selon les modalites de temps et autres qu'elle estime indiquees,

Delai proroge ou abrege

8. (1) La Cour peut, sur requete, proroger ou abreger tout delai prevu par les presentes regles ou fixe par ordonnance.

Moment de la presentation de la requete

(2) La requete visant la prorogation d'un delai peut etre presentee avant ou apres

37

the period sought to be extended.

Motions for extension in Court of Appeal

(3) Unless the Court directs otherwise, a motion to the Federal Court of Appeal for an extension of time shall be brought in accordance with rule 369.

l' expiration du delai.

Requete presentee ala Cour d'appel federale

(3) Sauf directives contraires de la Cour, la requete visant la prorogation d'un delai qui est presentee ala Cour d'appel federale doit l'etre selon la regle 369.

38

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