ALBERTA (MINISTER OF JUSTICE) v WILLIS, 2015 ABQB 328
1.2: Purpose and intention of these rules
3.13: Questioning on affidavit and questioning witnesses
5.1: Purpose of this Part (Disclosure of Information)
5.2: When something is relevant and material
5.25: Appropriate questions and objections
6.3: Applications generally
6.38: Requiring attendance for questioning
6.7: Questioning on affidavit in support, response and reply to application
The Solicitor General for Alberta (the “Minister”) applied for an Order compelling the Respondent, Willis, to answer questions regarding a property disposal matter, pursuant to the Rules and Section 52(2) of the Victims Restitution and Compensation Payment Act, SA 2001, c V-3.5 (“VRCPA”). The Respondent cross-applied to challenge the constitutionality of Section 52(2) of the VRCPA. The Respondent’s husband was driving her vehicle when he was arrested for illegal activity, and the vehicle was seized. The Respondent filed an Affidavit in which she claimed an interest in the restrained vehicle, and stated that she did not know her husband was driving the vehicle when he was arrested. The Minister cross-examined the Respondent on her Affidavit and she refused to answer eight questions. The Minister subsequently filed an Application to compel her to answer the questions. The Respondent then filed an additional Affidavit and a Notice of Constitutional Question.
The Minister submitted that the constitutional question need not be determined because the applicable Rules were a complete answer to the Respondent’s objection to the Minister’s questions pursuant to Rules 3.13, 5.2, 5.25, 6.3, 6.7 and 6.38. The Court disagreed with this position, as the Minister’s authority to examine the Respondent in the first place arose from the VRPCA. The first issue for the Court was to decide if Section 52(2) of the VRPCA was overly broad, and secondly, whether the Respondent should be compelled to answer the Minister’s questions.
In assessing the scope of the impugned provision, the Court noted that the VRCPA provides that the Rules and laws of evidence apply. Rules 5.1 and 5.2 provide that evidence may be obtained in order to define the issues. The Rules encourage early disclosure of information, and state that such information is relevant and material if it assists in determining the issues or ascertaining evidence which will assist in determining the issues. As such, the impugned provision is not overly broad: it is governed by the legal parameters of relevance and materiality as set out in the Rules.
With respect to compelling answers to the questions posed to the Respondent, the Minister submitted that the questions were relevant and material, and within the scope of Rules 5.2(1) and 5.25(1). The Respondent acknowledged that the answers could reasonably be expected to significantly help to determine the issues, and that the onus was on her to provide evidence of her proprietary interest in the vehicle and absence of knowledge that her husband was using it for illegal activity. Justice Schutz agreed with the Respondent, yet noted that there were other consequences the Respondent might face if she refused to answer the questions. The Minister’s Application to compel answers was dismissed.View CanLII Details