Date: 20001213
Docket: T-66-86A
BETWEEN:
BERTHA L'HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
Action No. T-66-86B
BETWEEN:
BRUCE STARLIGHT, suing on his own behalf
and on behalf of all other members of the Sarcee Band
Plaintiffs (Respondents)
- and -
HER MAJESTY THE QUEEN
Defendant (Applicant)
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Alberta
on December 7, 2000)
HUGESSEN, J.:
[1] This is a motion by the Crown seeking directions arising out of my order given herein September 23, 1998. That order allowed the plaintiffs to amend on terms and the relevant part of it reads:
| Counsel for plaintiffs shall submit in writing to counsel for defendant and each intervenor by 15 November 1998 a detailed list of all those parts of the transcript of evidence at the first trial, including any interventions by the trial judge, to which objection is taken to their use as evidence at the new trial, with reasons therefore. Counsel for defendant and the intervenors shall respond thereto in writing by December 30, 1998, following which any party or intervenor may move to have any dispute over inadmissibility resolved by the Case Management Judge. |
[2] The plaintiffs have appealed that order but as of today, over two years later, they have not brought that appeal on for hearing and it is still pending. In purported compliance with that order the plaintiffs wrote in November 1998 objecting generally to the use of any evidence from the first trial and, in particular, to the use of certain evidence of the interveners and some expert evidence. The Crown and the interveners responded to that position by asserting that all the evidence from the first trial could be used at the second trial except for the trial judge's comments and interventions. Neither party moved for directions or did anything to resolve this impasse for almost two years until the bringing of the present motion very recently. In their submissions, the parties basically repeat with minor variations the positions that they took at the end of 1998.
[3] First let me deal with such objections coming from both the plaintiffs and the Crown to the admission of certain particular parts of the evidence at the first trial. In my view, none of those objections are justified and indeed, no counsel spent any time arguing them at the hearing of the motion before me. In principle, then, all have agreed that all the evidence at the first trial may be used at the second if any of it can be.
[4] The main argument on today's motion is accordingly as to whether any of the evidence and the transcripts of that evidence can be introduced into the new trial. Of course an affirmative answer to that question was implicit in the September 1998 order. Since I gave that order and since it is still in appeal, it is difficult and perhaps improper for me to comment on the argument. I would only say that, in my view, the order was entirely consistent with my duties as Case Management Judge as specifically my duties under Rule 385 and was not inconsistent with the order of the Court of Appeal ordering a new trial on the basis of a reasonable apprehension of bias in the First Trial Judge.
[5] In my view, the cases cited by the plaintiffs simply do not stand for the proposition that where a trial is set aside for a failure of natural justice, everything that happened in that trial is to be treated without more as if it had not happened. That, in my view, is an absurd proposition and it is not the law as it was stated in the case as cited. Of course, in some circumstances it may be that what happened in the first trial was so vitiated that no part of that trial can be saved. That is not the case here.
[6] The Court of Appeal was careful to limit its criticism of the first trial judge to certain specific comments that he made with respect to aboriginal rights which he viewed as being racist and it went out of its way to say that his general conduct of the trial was beyond reproach.
[7] Thus, as long as the comments and the intervention of the first Trial Judge are excluded from any use in the second trial, I cannot see any way in which the order of the Court of Appeal would exclude the use of transcripts from the first trial and the second trial.
[8] This brings me to the plaintiffs' second point which, as I understand it, is that traditionally and at common law and as a matter of natural justice, counsel should have complete control of the trial and should be allowed to call what evidence they choose and more importantly, in the way that they choose.
[9] I do not agree. The first trial lasted 79 days. It represents a huge expenditure of time and money, both private and public. The issues at the second trial are fundamentally the same as they were at the first. The changes in the law upon which the plaintiffs rely, as those changes have been found by the Supreme Court of Canada in recent cases, do not have the effect of changing the factual matrix upon which the case must be decided. The parties are also the same. The deletion of one plaintiff and the addition of one intervener does not radically change anything.
[10] Additionally, some of the witnesses who were heard at the first trial including some called by the plaintiffs themselves are dead. Is there evidence to be lost forever? I think not.
[11] Nor is there anything so radical or unusual as the plaintiffs seem to think in ordering that some part of the evidence at a trial should be taken other than by the giving of viva voce evidence in open Court. Rules 285, 286, 373 (4) are examples. So is the everyday occurrence of evidence taken on commission out of the country or de bene esse of a witness who is sick or thought to be near death.
[12] Of course, plaintiffs are correct when they say the selection of what evidence to lead is a matter for counsel and it would be wrong to order without consent that the whole of the record of the first trial simply be placed before the trial judge for him to decide so to speak on the record. It would be equally wrong, however, to allow counsel to call a procession of witnesses who have already given their evidence in this case on the issues herein and who could do no more than repeat in the same or indifferent terms the essence of the evidence they have already given. That would be neither fair, expeditious, nor cost-efficient and those are the guidelines by which I, as Case Management judge, must be guided.
[13] Since questions of relevancy and the qualification of experts are always matters for the exercise of discretion by the trial judge, I propose to leave it open to parties to raise those issues before the trial judge, if they wish to do so. Otherwise, I propose to order that all the evidence which was admitted at the first trial may be tendered into evidence at the second trial and to make some consequential orders designed to avoid the needless repetition of evidence and the waste of time.
| [14] This is the order I propose to make: |
1. The transcript of any evidence (excluding argument and any comments or interventions by the trial judge) given at the first trial may, subject to any ruling by the trial judge on the issues of relevance and, where applicable, the right of a person to give opinion evidence, may be introduced in evidence at the new trial. No witness whose testimony is thus given in evidence shall, without leave of the trial judge, be examined or cross-examined at the new trial.
2. No person who testified at the first trial shall be called to give evidence at the new trial unless the party wishing to call such person satisfies the trial judge that such person is likely to give evidence that was not given by that person at the first trial.
| [15] I shall hear submissions on the questions of costs. |
Later
[16] The Native Council of Canada, Alberta and the Non-status Indian Association of Alberta shall have their costs in the amount of $750.00 each payable by the plaintiffs, forthwith in any event of the cause.
Judge
Ottawa, Ontario
December 13, 2000