Date: 19990507
Docket: DES-2-99
BETWEEN:
ALISSA WESTERGARD-THORPE, ANNETTE MUTTRAY,
JAMIE DOUCETTE, MARK BROOKS, DENIS PORTER,
DEKE SAMCHOK AND CRAIG ELTON JONES,
Applicants,
- and -
THE ATTORNEY GENERAL OF CANADA,
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Respondents.
Docket: T-659-99
BETWEEN:
CRAIG ELTON JONES, JONATHAN OPPENHEIM,
JAMIE DOUCETTE, DEKE SAMCHOK,
DENIS PORTER, AND ANNETTE MUTTRAY,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN, THE MINISTER OF JUSTICE
AND THE ATTORNEY GENERAL OF CANADA,
Defendants.
REASONS FOR ORDER
MCKEOWN J.
[1] The respondents brought a motion pursuant to Rule 369 of the Federal Court Rules for:
| (a) An Order, made pursuant to Rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 12, 14, 15, 16 and 20 of the Affidavit of Craig Elton Jones. |
| (b) An Order, made pursuant to Rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 11, 12 and 13 of the Affidavit of Jonathan Oppenheim. |
| (c) An Order, made pursuant to rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 11, 13 and 14 of the Affidavit of Jamie Doucette. |
| (d) An Order, made pursuant to rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 11, 13 and 16 of the Affidavit of Annette Muttray. |
| (e) An Order, made pursuant to rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 10 and 16 of the Affidavit of Deke Samchok. |
| (f) An Order, made pursuant to rule 81 of the Federal Court Rules, striking paragraphs and/or portions of paragraphs 1, 14 and 15 of the Affidavit of Dennis Porter. |
[2] The affidavit evidence is questioned on two points. Firstly, that the affidavit evidence must be premised upon personal knowledge and not on deponent"s belief, and secondly, whether the affidavit is opinion, argument and speculation.
[3] With respect to the first argument, I agree that Rule 81(1) of the Federal Court Rules, 1998 requires that affidavits be confined to facts within the personal knowledge of the deponent, except in motions, where statements as to the deponent"s belief may be included. However, this case constitutes both an action and an application for judicial review, which were consolidated for purposes of a constitutional challenge. In order to speed up the constitutional challenge, it was agreed to proceed by way of affidavits instead of by live witnesses. Thus, in my view, the Supreme Court of Canada"s ruling on the admissibility of extrinsic evidence in constitutional cases, rather than Rule 81(1), is applicable in this instance. The Supreme Court has provided that there are only two limitations on the admissibility of extrinsic evidence in constitutional cases. In Re Anti-Inflation Act , [1976] 2 S.C.R. 373, the Court stated as follows:
| There appears to be only two limitations on the admissibility of extrinsic evidence in constitutional cases: evidence which is inherently unreliable or offends public policy is not admissible, nor is extrinsic evidence admissible to aid in statutory construction. |
[4] Accordingly, I will not strike out any part of paragraph 1 of the Affidavit of Craig Elton Jones, including the material words objected to, "... save and except where the same are stated to be based on information and belief, and where so stated, I verily believe them to be true." I make the same rulings with respect to the similarly worded portions of the Affidavits of Jonathan Oppenheim, Jamie Doucette, Annette Muttray, Deke Samchok and Dennis Porter.
[5] The respondents also object to a portion of paragraph 14 of the Affidavit of Craig Elton Jones, which reads, "I further believe that the officers will attempt to portray my complaint as frivolous, vexatious and motivated by improper considerations." I will strike paragraph 14, since Mr. Jones has no personal knowledge as to what the persons opposed in interest will do in the future. This same sentence is also deleted in the Affidavits of the other applicants that are sought to be struck by the respondents.
[6] The respondents also seek to strike the portions of the applicants" affidavits which are alleged to be opinion, argument and speculation. As well as following the statement of the Supreme Court of Canada in Re Anti-Inflation Act, supra , I must bear in mind Muldoon J."s statements on compliance with Rule 81(1), or 332(1) as it then was, in Bell Canada v. Canadian Human Rights Commission et al. (1991), 39 F.T.R. 97 at 99:
| ... [t]he documents would have merely to speak for themselves without any gloss or explanation on the Respondent"s part. Equally, this and every other deponent must abstain from expressing any gloss or explanations on the interpretation of the law. The Respondent"s counsel may do that in submissions to, and discussions with, the Court, which is the proper ultimate interpreter of the law. |
[7] The applicants are prepared to allow paragraph 12 of the Affidavit of Craig Elton Jones to be deleted. The applicants are also prepared to allow the deletion of the following words in paragraph 15: "... if I am not able to review all of the evidence relevant to RCMP conduct throughout the APEC affair and to adduce evidence and advance arguments in response". I will not strike the balance of paragraph 15.
[8] Paragraphs 16 and 20 of the Affidavit of Craig Elton Jones are all relevant in the context of the primary and fundamental purpose of the inquiry as set out by Commissioner Hughes and shall not be struck.
[9] The applicants consent to the deletion of paragraph 11 of the Affidavit of Jonathan Oppenheim, as it is argument, and as was stated by Muldoon J. in Bell Canada, supra, argument is to be made by counsel.
[10] Paragraph 12 of the Affidavit of Jonathan Oppenheim shall not be struck. The weight to be accorded this paragraph is left to the trial judge.
[11] On consent, the first sentence in paragraph 13 of the Affidavit of Jonathan Oppenheim is struck. It reads, "[i]n sum, I believe the disclosure of material referred to in the certificates will be in the public interest, and that failure to disclose this material will hamper our ability to explain the actions of the RCMP." The balance of the paragraph shall not be struck.
[12] I make the same disposition with respect to similar paragraphs in the Affidavits of Jamie Doucette, Annette Muttray, Deke Samchok and Dennis Porter, and the specifics are in the accompanying order.
[13] In light of my findings that the majority of the Affidavits should stand, I am awarding costs to the applicants and the plaintiffs in any event of the cause.
William P. McKeown
JUDGE
OTTAWA, Ontario
May 7, 1999