Ottawa, Ontario, this 7th day of December, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
Docket: T-66-86-B
BETWEEN:
TSUU T=INA FIRST NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
[1] The Plaintiffs are seeking leave to call the following witnesses at trial:
Chris Shade
Joe Whitehead
Reg Crowshoe
Wayne Roan
William Dreaver
BACKGROUND
[2] This is the latest in a series of motions concerning the Plaintiffs’ witness list and will-says that I last dealt with in my decision of November 7, 2005. The full background and the underlying issues are set out in full in the reasons to that decision.
[3] In effect, the Plaintiffs are seeking reinstatement of five named witnesses who were excluded in accordance with my November 7, 2005 decision and previous, related decisions. In my decision of October 18, 2004 I struck all of the Plaintiffs proposed witnesses for non-compliance with will-say and other requirements and then gave them an opportunity to seek redemption in the motion that resulted in my decision of November 7, 2005.
ARGUMENTS
[4] The arguments of the parties and the Interveners are set out in full in the materials filed with this motion and were supplemented by an oral hearing in Edmonton on November 29, 2006.
[5] In essence, the Plaintiffs say that my Reasons and Order of November 7, 2005 contemplate that they may seek leave of the Court to reinstate these named witnesses and (in the case of four of them) adjust their will-says in accordance with directions given by the Court.
[6] The Plaintiffs also rely upon Rule 8 of the Federal Courts Rules, 1998 and say that they satisfy the criteria for an extension of time to bring these witnesses forward and serve will-says for them. Finally, the Plaintiffs say that the will-says for all five of the witnesses are now compliant with previous orders of the Court dealing with the form and content of will-says.
[7] The Crown opposes the motion on the grounds that my November 7, 2005 decision does not contemplate and, in fact, rules out the reinstatement of these witnesses and the suggested revisions to four of the will-says.
[8] The Crown also says that, even if the Plaintiffs are not precluded from seeking the redemption of these witnesses by my November 7, 2005 decision, the Plaintiffs cannot satisfy Rule 8. What is more, even if the Plaintiffs could satisfy Rule 8, the Crown says there are continuing problems with individual will-says that should exclude these witnesses and their proposed evidence.
[9] The Interveners are, by and large, supportive of the Crown’s position. NCCA, however, believes that Elder Crowshoe should be considered for reinstatement, but the Court should vet his original will-say for compliance rather than the revised version.
ANALYSIS
General
[10] This motion represents a continuation of problems related to the Plaintiffs’ witness list and will-say statements that have significantly delayed progress towards trial. The problems were inevitable, to some extent, given the significant disparity between the Plaintiffs and the other participants over the scope of the pleadings. However, quite apart from this fundamental difference of opinion, the Plaintiffs have created difficulties for themselves by not fully complying with various Court orders dealing with witnesses and will-says.
[11] In this motion, the Plaintiffs are really seeking two concessions:
a) Reinstatement of the five named witnesses to the witness list of those persons who may be called to give evidence at the trial; and
b) Leave of the Court to renovate four of the will-says.
[12] These two issues are intertwined because reinstatement of a witness is dependent, among or things, on a compliant will-say; but the Plaintiffs also feel they are following the Court’s guidance in bringing forward renovated will-says for four of these witnesses.
[13] The Plaintiffs present counsel have now had an opportunity to review the record and they feel that improvements in this area can, and should, be made so that the Court has available to it all relevant evidence at trial.
[14] The motion, however, gives rise to complexities whose origins lie in the convoluted and strained history of this action. In particular, progress towards trial proved so difficult that the case management judge, Justice Hugessen, established a special procedural regime and a set of deadlines to move matters along. Even then, the difficulties did not go away and I have spent over two years as trial Judge attempting to ensure that Justice Hugessen’s scheme is put into effect and this action proceeds to trial. The regime imposed by Justice Hugessen in his Pre-Trial Order of March 26, 2004, as modified by subsequent orders, remains applicable to the present motion. That regime established parameters and deadlines that were applicable to all participants. In fact, the Plaintiffs themselves have already relied upon it to exclude evidence that one of the Interveners sought to introduce de bene esse. Hence, we cannot deviate substantially from it for the benefit of one of the participants at this stage in the proceedings without causing unfairness and prejudice to the others.
[15] The Plaintiffs place significant emphasis in this motion on the need to accommodate the Aboriginal perspective when addressing issues of evidence. However, this need was precisely what the Court had in mind when it set up the scheme for excluding witnesses and testing will-says, and I see no reason to adjust that scheme now in relation to the witnesses named in this motion.
November 7, 2005 Reasons and Order
[16] As the Plaintiffs point out, the starting place is my Reasons and Order of November 7, 2005.
[17] There are various parts of that decision that have a bearing on the present motion. The most important ones are as follows:
138. Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, made it mandatory for “All persons intending to lead evidence at trial (including oral history evidence)” to “serve witness lists and ‘will-say’ statements…on or before September 15, 2004.”
139. When the Pre-Trial Order was made the trial was set to commence on January 10, 2005, i.e. approximately four (4) months after the date set for serving witness lists and will-says.
140. Mr. Justice Hugessen’s Pre-Trial Order does not say that a witness list and will-says can be served at any time before trial. The September 15, 2004 deadline is just as mandatory as the requirement to serve a witness list and will-says if evidence is to be lead.
141. To allow any person to serve and file materials after the September 15, 2004 date, or to lead evidence if a witness is not identified or no will-say is provided, would render Mr. Justice Hugessen’s Order meaningless.
142. This Court has not changed the meaning or basic intent of Mr. Justice Hugessen’s Pre-Trial Order in subsequent orders; it has merely provided an interpretation because of disagreement between parties, and it has allowed the Plaintiffs additional time within which to comply.
143. The Court has yet to consider an application from any party involved in these proceedings to call a witness who has not been identified, and for whom a will-say has not been provided, by the date fixed by the Court. There may well be circumstances where the Court should consider admitting evidence from a witness who has yet to be identified, and for whom a will-say has yet to be served, but until such application is made, and the Court hears full argument from counsel, the position is clear: as matters now stand no person will be giving evidence at the trial who has not been identified in a witness list and for whom a will-say has not been provided by the date set by the Court. In the case of the Plaintiffs, this date is presently set at December 14, 2004. Because the Crown has indicated that it is willing to overlook any technical infraction and accept those names and will-says served by 1:00 a.m. on December 15, 2004, the Court is also willing to use that deadline as the cut-off date for the Plaintiffs will-says.
144. So, as matters now stand, the relevant orders of the Court make it clear that unless a potential or proposed witness has been identified by the cut-off date and a will-say statement for that witness has been produced by the same date, that witness will not be giving evidence at the trial. For the purposes of this motion, then, the Court will only be considering the will-says that have been served by the cut-off date.
145. The Court has already, in its Reasons of May 3, 2005, expressed its views on the impact of the letter of December 14, 2004 from the solicitor of record for the Plaintiffs. That letter indicated the following matters relevant to the present motion:
a) Apart from about seven (7) or eight (8) witnesses for whom a “short extension would be requested, the Plaintiffs have been able to identify the witnesses and produce the will-says they need for the evidence they wish to adduce at trial on all issues they feel are in the pleadings;
b) The Plaintiffs have concluded that they are now able to extract the evidence they need from a total of 69 witnesses (that number includes “6 primary expert witnesses”), which represents a reduction of approximately 50% of the total number of witnesses they said they needed on September 15, 2004;
c) The Plaintiffs are of the view that they have fully complied with the will-say standards set in previous Court orders.
146. Also, as discussed in my Reasons of May 3, 2005 (see paragraphs 438-448), this impression was confirmed by subsequent representations made to the Court by Plaintiffs’ counsel.
147. Further, as discussed in my Reasons of May 3, 2005 (see paragraph 447), the Court is aware that the parties disagree on whether the seven (7) or eight (8) stragglers identified in the letter of December 14, 2004, should be allowed. However, unless and until the Plaintiffs ask the Court to vary its Order of November 25, 2004 to allow additional witnesses after the cut-off date, and the Court has heard argument from counsel, the Court cannot consider any of the witnesses for whom will-says were not provided by the December 14/15, 2004 deadline.
…
170. The November 25, 2004 Order was a request for information that would allow the Court and the other parties to see what portions of the old record could be used, and why it was necessary to call a witness to speak to matters that are already covered in the old record. So the Plaintiffs have not been very cooperative in assisting with this issue, at least with any degree of specificity.
171. It seems to me, however, that their approach has some justification. They are saying that all of their witnesses, except Mr. Wayne Roan, will be new witnesses who will present new evidence, either on self-government or related rights, raised in the amendments, or will supplement evidence given on issues in the first trial. The Court does, however, want to be clear that duplication will not occur and that efficient use will be made of the old record. I believe the best way to deal with this concern is for the Plaintiffs to provide the court, and the Crown and the Interveners, with specific information that will show how the old record will be used and why the new witnesses will not duplicate the old record. Now that the Court has indicated in these Reasons its view of the scope of the pleadings, the parties can proceed to do this in the near future.
172. As regards the November 25, 2004 Order, it seems to me that the general message contained in the “explanation” provided by the Plaintiffs is that duplication will not occur because, apart from Mr. Roan, it will all be new evidence from new people.
173. As regards Mr. Wayne Roan, who did appear as a witness at the first trial, the Crown says that there is no explanation on whether his evidence will be different at the second trial. The Crown also points out that Mr. Roan’s will-say statement contains much of the same material as he testified to at the first trial.
174. The Plaintiffs answer is that Mr. Roan’s will-say also refers to much information which is not the same as that which he gave at the first trial. I read this as an admission by the Plaintiffs that there will be duplication; the Plaintiffs merely say:
If only one witness out of all the witnesses to be called at this trial, was a witness at the first trial, any duplication, even if present, is negligible in the greater scheme of things and does not delay…for the delay of this trial.
175. The Plaintiffs also explain that it is readily apparent from Mr. Roan’s will-say statement that his evidence “is needed because it relates to the self-government claim raised in the Plaintiffs amended pleadings.”
176. The distinctions referred to by the Plaintiffs are not readily apparent to the Court. I think the Plaintiffs could be more helpful here in achieving efficiencies that are obviously needed when we are facing a long trial that already has a weighty record available to it.
177. In any event, paragraph 2 of Mr. Justice Hugessen’s Order of December 8, 2000, directs that any witness who appeared at the first trial to give evidence should not be called at the second trial until the trial judge is satisfied that he won’t give the same evidence. As yet, the Plaintiffs have failed to satisfy the Court on this issue as regards Mr. Roan. I asked them to do that in the Order of November 25, 2004. They have declined to do so.
…
180. Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, mandated that all witness lists and will-says had to be served by the same deadline. The Plaintiffs took the full time allowed. That order was not appealed.
181. The October 18, 2004 Order of Russell J. struck the Plaintiffs’ witness list and will-says for non-compliance, and said that none of the witnesses could be called without further leave of the Court. That order was not appealed. The November 25, 2004 Order of Russell J. gave the Plaintiffs until
December 14, 2004, to serve their witness list and will-says in a compliant form.
183. None of these orders contemplated or authorized the Plaintiffs to go out and find new witnesses after September 15, 2004 and file will-says for them. If that had been the intention, then the Crown and the Interveners would have been awarded the same right. The Crown and the Interveners made their decisions about what witnesses and evidence they wished to call based upon the deadlines set by Mr. Justice Hugessen. The Plaintiffs cannot breach those deadlines and then use their own breach as an opportunity to find further witnesses, while the Crown and the Interveners are confined to the witnesses they identified by the deadline.
…
194. The standards and degree of disclosure are now well-understood and accepted by all parties, including the Plaintiffs. I set those standards out in detail in my Reasons of October 18, 2004. For convenience, I will repeat here the guidelines provided in October, 2004:
[38] The witness lists and will say statements produced by the Plaintiffs to date are not in compliance with Justice Hugessen’s Pre-Trial Order and are not adequate for preparation and effective trial procedure for a variety of reasons, including the following:
a. They are not individualized. The witness lists need to show who the Plaintiffs actually intend to call, how she or he is in a position to give the evidence, and what each individual witness will say. A large pool of potential witnesses and a list of topics that will be addressed at trial by various groups does not permit adequate preparation and effective trial procedure;
b. The language used by each witness to be called is not identified. Justice Hugessen’s Pre-Trial Order specifically says, in para. 9, that the witness list and will say statements have to include “language if other than English and name of interpreter if known.” This is information that is obviously required for each witness;
c. They provide a list of topics that the Plaintiffs intend to address rather than a synopsis of what each individual witness will say. Such a synopsis does not need to use the actual words of each witness, but it does need to contain sufficient detail to allow for challenges on the basis of relevancy and otherwise, and for effective preparation for cross-examination. For instance, it is not sufficient to say that evidence will be given concerning the Plaintiff’s laws, customs and practices or their way of life. The will says should indicate what a particular witness will say those laws, customs and practices are, and what the way of life relied upon actually entails;
d. Those will say statements that pertain to oral histories should identify the actual past practices, customs and traditions of the community in question, as well as relevant interactions with other groups.
204. The principal objectives of the Court since the September 17, 2004 meeting, at least as regards will-says, have been to ensure that pre-trial disclosure occurs in accordance with Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, and to seek a solution to the great philosophical divide between the parties over the scope of the pleadings that will allow them to prepare adequately and appropriately for the trial, and encourage any possible efficiencies over the marshalling and presentation of evidence. Obviously, the content of the Plaintiffs’ will-says will reflect their view of the scope of the pleadings, which is why I believe a solution to the disclosure issue should not be considered in isolation from the relevance and other deficiency issues raised by the Crown.
…
310. For reasons I have already given, I believe that the Plaintiffs’ will-says as submitted on or before December 14/15, 2004, and which are the subject matter of this motion, were prepared at a time when the Plaintiffs wished to take a much broader approach to self-government than was contemplated by the amendments to the pleadings that were allowed in 1998 and 2004. Necessarily, then, the will-says raise issues and propose evidence that go well beyond the pleadings as drafted. It means they are a summary of proposed evidence, some of which is relevant to the pleadings, some of which is obviously irrelevant, and some of which is just difficult to determine with any degree of certainty at this stage.
311. Also, in answering this motion by the Crown, the Plaintiffs have not really taken the Court to the will-says themselves to show how they raise and summarize potential evidence that is pertinent to the pleadings as the Court has interpreted them. This is only to be expected, since the Court had yet to provide its views concerning the scope of the pleadings at the time when the will-says were drafted. But it means that the Court is left to review the will-says, together with the explanations provided by the Plaintiffs, and to do the best it can to assist the parties to resolve the scope and relevance issues that have been plaguing these proceedings. I have already said that extreme caution should be exercised at this point because the Court is not yet aware of how traditional rules of evidence may have to be modified to accommodate the Aboriginal perspective. I am also disposed to take a very conservative approach to excluding a witness and/or an area of proposed evidence. At this stage, any doubt and ambiguity must be resolved in the Plaintiffs’ favour. But what could be years of trial should not be devoted to hearing evidence that is obviously not relevant to the pleadings and where the Plaintiffs, having been given the opportunity to do so as part of their written explanations and their response to the Crown in this motion, have not attempted to explain to the Court why they have changed their position from the time they sought the amendments in 1998, or how the will-says relate to what they said was the scope of the pleadings at that time.
312. The Court also has to be consistent with previous rulings and exclude witnesses and/or evidence where there is inadequate disclosure in accordance with the standard clearly articulated by the Court and accepted by the Plaintiffs. The Court must try and give the Plaintiffs the scope they need to make the case that actually appears in the pleadings, while getting rid of the more obvious attempts by the Plaintiffs to introduce the broad concept and politics of self-government into these proceedings by loading their witness list and will-says with advocates and evidence that would take the Crown and the Court into areas and topics that do not assist with the basic issues. The will-says make it clear that the Plaintiffs feel extremely angry and frustrated because their self-government negotiations with the Government of Canada have not achieved as yet the results they desire. And they feel they have been betrayed and misled in this regard by the Government of Canada and the federal bureaucracy. They also believe that the Court and the rest of Canada is being misled by the same people. The anger and the frustration are entirely understandable (although I don’t mean to suggest that what the Plaintiffs allege is true or sustainable), but it does not provide a legal justification for loading these proceedings with matters that are, strictly speaking, outside of the scope of the legally defined issues.
313. The approach taken by the Court in this motion, I believe, preserves the spirit of previous Court orders that were intended to give the Plaintiffs the time they said they needed to complete their pre-trial disclosure, and to assist the parties by looking at the difficult issues of scope of pleadings and relevance, and providing guidance in that respect.
314. While the Plaintiffs must have the scope to make the case actually pleaded, in view of what has occurred to date in these proceedings, I believe it would be unjust and unfair for the Crown to have to prepare itself, now, to deal with a large body of evidence that does not conform to the spirit and intent of the pleadings, read in the context I had already described. That would be for the Court to put the Crown through a process that, until very recently, the Plaintiffs have said is not part of these proceedings. I believe it is the Court’s duty to do something about the relevance issues now because the parties have become so polarized, and the volume of proposed witnesses and clearly irrelevant evidence is so large, that the Court must try for greater precision and efficiency than the present state of the Plaintiffs’ will-says would allow if we just proceed straight to trial.
315. At the same time, of course, the Court remains committed to the position it took in its Reasons of November 25, 2004:
… the court is very much concerned to ensure that the Plaintiffs are given the opportunity to make their case in the most effective way possible. The Court does not wish to interfere with normal trial procedure or place obstacles in the way of the Plaintiffs calling those witnesses they feel they need to assert their position.
316. In saying this, it is understood, of course, that the Plaintiffs’ case is what the pleadings say it is, as represented by Plaintiffs’ own counsel, and as consistently interpreted by this Court. It is not the expansive approach to self-government that the Plaintiffs have, or late, attempted to impose on these proceedings and which, as the will-says show to a considerable extent, they now wish to conflate with their general dealings with the Government of Canada over a full-blown right to self-government.
…
324. In view of the preceding discussion, and in order to balance the competing interests in a way that will result in the most just, expeditious and efficient determination of these proceedings on the merits, the Court believes that the following principles and procedures should govern its decision in this motion:
a) The Plaintiffs should be entirely free to lead all relevant and otherwise admissible evidence they have disclosed that they propose to lead in their will-says served within the time-frame which the Plaintiffs requested and the Court allowed, i.e. December 14/15, 2004;
b) In order to lead evidence in accordance with paragraph one (a) above, a summary of that evidence must have been disclosed in a way that meets the standards for disclosure already set by the Court in previous decisions and orders, which standards have been accepted by the Plaintiffs as being applicable to them and other parties to the proceedings;
c) For purposes of determining general relevance the parties and the Court will be guided by the general parameters set out in these Reasons and, in particular, those areas of general exclusion set out in paragraph 321 of these Reasons;
d) Where there are discrepancies between a will-say and the oral history summary, proposed oral history evidence shall not be excluded for that reason alone, but the Crown may seek an extension of time or other accommodation from the Court to allow it to deal with any such discrepancy that may have caused prejudice to the Crown. However, unless an oral history witness was identified as such and a summary provided by the deadline set out in Mr. Justice Hugessen’s Pre-Trial Order of March 26, 2004, the Plaintiffs cannot now introduce oral history witnesses by way of will-says;
e) The Court will review the will-says submitted by the Plaintiffs by the December 14/15, 2004 deadline (other than those will-says for witnesses who were not identified by the September 15, 2004 Pre-Trial Order deadline) and provide guidance on which proposed witnesses or areas of proposed evidence do not correspond with the pleadings as interpreted by the Court in the Court’s Reasons for this motion, and those witnesses will not be called;
f) Where there is ambiguity as regards exclusion, the Plaintiffs should have the benefit of the doubt at this stage;
g) Those witnesses who did not appear on the witness list served by the Plaintiffs on September 15, 2004, but who did appear on the list served on December 14, 2004, should not be called by the Plaintiffs without further order of the Court. The purpose of the October 18, 2004 Order, was not to give the Plaintiffs, or any other party, time to go out and find more witnesses than the ones they had named on the deadline set for all parties to name their witnesses. The purpose was to give the Plaintiffs time to come to the Court with a "workable solution" to their non-compliance. These witnesses are:
Ann Maje-Raider
Chris Shade
Joe Bellerose
Jacob Bell
Oliver Columb
Ellerlie Starlight
Joe Whitehead
Clifford Cardinal
David Midbo
Robert Horseman
In view of what the Court has now said about the scope of the pleadings, if the Plaintiffs still wish to call any of these witnesses, they should come to the Court by way of formal motion so that the Court can assess the situation and make whatever further adjustments to Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, are deemed advisable and acceptable;
(h) Those seven (7) or eight (8) witnesses identified by the Plaintiffs after the December 14, 2004 deadline should not be called without further order of the Court sought by way of formal motion;
(i) As regards those witnesses who appeared on the witness list provided by December 14/15, 2004, and for whom will-says and explanations were provided, the Court does not, generally speaking believe they should be excluded at this stage of the proceedings for reasons other than non-compliance with the pre-trial disclosure requirements set by the Court, or because they are irrelevant and/or unnecessary for the issues raised in the pleadings. This means that many of the objections raised by the Crown to the evidence given, or to be given, by such witnesses should be raised and dealt with in the usual way at trial. The reason for this is that the Court does not know at this stage what adjustments to traditional rules of evidence may be necessary, or how it should comply in this regard with directions given by the Supreme Court of Canada;
(j) The purpose of any order made by the Court on this motion is solely to complete the process began on September 17, 2004, as more specifically defined in the Orders of October 18, 2004 and November 25, 2004. That process was intended to ensure compliance with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, to effect full pre-trial disclosure by ordering compliant will-says, to try and resolve the difficulties occasioned by the "philosophical difference" over the scope of the pleadings, and to indicate which witnesses and/or evidence the Plaintiffs should not call, either because of their continuing failure to make disclosure in accordance with the standards articulated by the Court, or because the proposed witnesses and/or evidence clearly went beyond the scope of the pleadings. Any decision made by the Court in this regard:
(i) is not to be taken as any kind of affirmation by the Court that any witnesses and/or evidence not excluded at this stage is admissible at the trial; and
(ii) is not to be taken as a restriction on the Crown or the Interveners to challenge any witness and/or evidence called by the Plaintiffs at the trial on any ground whatsoever, including failure to meet the standards of disclosure and/or relevance.
But the Plaintiffs must be given flexibility too. The dangers of excluding
witnesses and evidence at this stage are obvious. As the trial evolves, it may
become apparent that proposed evidence actually referred to and revealed in a
will-say submitted by the deadline met the required standards of disclosure and
is relevant and otherwise admissible. Hence, it is only fair that the
Plaintiffs should be allowed to draw this to the attention of the Court and,
after full argument, seek the consent of the Court to lead that evidence. This
is not an invitation to the Plaintiffs to re-hash at trial the issues I have
decided in this motion. The appropriate way to disagree with the Court's view
of scope of pleadings and principle areas of exclusion is by way of appeal. But
I do feel that some flexibility is required because of the difficulties of
predicting the future at this stage, and I do not believe that the Plaintiffs
should be put to the trouble of appealing this decision merely because, in
reviewing extensive and complex will-says, I have overlooked something that is
fully disclosed, relevant and necessary to the pleadings as I have defined
them.
I rely entirely upon the good judgment of counsel not to abuse the purpose of the Order I will make in this motion and not to seek to introduce evidence that is obviously excluded by the spirit and intent of my Reasons for Order and Order, except, of course, if any appeal is taken and allowed.
On the other hand, where I indicate that the Plaintiffs should be given the benefit of the doubt and that a witness may be called, I also rely upon the good judgment of counsel not to try and lead evidence through that witness that does not accord with what I have said in the Reasons about the scope of the pleadings and general areas of exclusion;
(k) In accordance with Mr. Justice Hugessen's Order of December 2000, Mr. Wayne Roan should not be called as a witness at the second trial unless or until the Plaintiffs comply with that Order;
(l) In accordance with the Court's Orders of October 18, 2004 and November 25, 2004, those witnesses not already excluded for other reasons, and/or those portions of their proposed evidence that should not be called, are set out in Schedule "A" attached to these Reasons for Order and Order;
(m) The amount of preparation time required and trial date will be set by the Court after hearing from counsel for all parties at a duly convened conference meeting, where we will discuss the outstanding issues that need to be addressed and ways of dealing with them that will get us to trial as quickly as possible..
ORDER
FOR THE REASONS GIVEN:
1. Without further leave of the Court, Ann Maje-Raider, Chris Shade, Joe Bellerose, Jacob Bell, Oliver Columb, Ellerlie Starlight, Joe Whitehead, Clifford Cardinal, David Midbo and Robert Horseman shall not be called as witnesses at the second trial;
2. Without further leave of the Court, in accordance with Mr. Justice Hugessen's Order of December, 2000, Mr. Wayne Roan shall not be called as a witness at the second trial;
3. Without further leave of the Court, no witness for whom a will-say statement was not served and filed by December 14 and 15, 2004, (as such deadline has been extended by consent of the Crown to early on December 15, 2004) shall be called by the Plaintiffs at the second trial;
4. As regards witnesses for whom a will-say and explanation were served by the deadline imposed by the Court in its November 25, 2004 Order, those witnesses and/or proposed evidence shall not be called as indicated in Schedule "A" attached to this Order and Reasons for Order without further leave of the Court, such leave only to be sought in accordance with the Reasons;
5. The date for the trial shall be established by the Court after hearing counsel for all parties at a duly convened conference to consider the trial date and any matter related to these proceedings.
6. The parties are at liberty to address the Court on the issue of costs.
[18] If these excerpts are reviewed in the full context of the November 7, 2005 decision, and the sequence of events leading up to that decision, I think it is clear what the Court had in mind in terms of the Plaintiffs’ scope to rehabilitate excluded witnesses and renovate will-says.
[19] The general picture can be summarized as follows:
a) Where compliant disclosure has been made for any proposed witness that the Court has excluded, then the Plaintiffs are free at any time as the trial evolves to seek the consent of the Court to call that witness and lead compliant and otherwise admissible evidence;
b) In the case of those witnesses who were excluded because they did not appear on the September 15, 2004 witness list, but did appear in the December 14, 2004 list, the Plaintiffs are at liberty to seek leave of the Court to call them. But in so doing the Plaintiffs must show that there was good reason why those witnesses could not have appeared on the September 15, 2004, list, and they satisfy the jurisprudence for an extension of time in order to accommodate those witnesses. Any such witnesses must also have satisfied the disclosure requirements for compliant will-says by the December 14, 2004 deadline;
c) Mr. Wayne Roan cannot even be considered as a witness until the Plaintiffs have complied with Justice Hugessen’s Order of December 7, 2000. Once compliance with that order has occurred, Mr. Roan can be considered as a potential witness but will be subject to the usual requirements of having been identified as a witness by September 15, 2004, and having completed a compliant will-say by December 14, 2004.
[20] I think it would also assist at this stage to recall the following words from Justice Hugessen’s Reasons and Order of December 7, 2000:
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.
[21] In terms of the two aspects of redemption that the Plaintiffs seek in this motion (reinstatement of witnesses and renovation of will-says) I believe it is immediately apparent from the above summary that the renovation of will-says is not an option at this stage.
[22] I specifically say in my November 7, 2005 decision at paragraph 324(a) that the Plaintiffs are free “to lead all relevant and otherwise admissible evidence they have disclosed that they proposed to lead in their will-says served within the time-frame which the Plaintiffs requested and the Court allowed, i.e. December 14/15 2004.”
[23] Those paragraphs of the decision that allow the Plaintiffs to seek leave to rehabilitate witnesses do not give the Plaintiffs leave to renovate will-says in order to achieve that end. The Plaintiffs can only seek to rehabilitate witnesses on the basis of will-says already submitted by the December 2004 deadline.
[24] There are obvious reasons why this has to be the case: the Court has already, in its earlier order of November 25, 2004, granted the Plaintiffs the opportunity and the time they said they needed to renovate their will-says, and any such renovation had to be completed by December 14, 2004.
[25] In other words, the Court has already granted the Plaintiffs renovation relief with respect to their will-says, and has even been told by the Plaintiffs through their former counsel and their solicitor of record that the will-says submitted on December 14, 2004 were fully compliant. As my November 7, 2005 decision makes clear, it is my view that some of the will-says submitted at that time were not compliant. But that does not change the fact that I have twice resisted the Crown’s arguments to strike the Plaintiffs will-says for non-compliance and proceed to trial on the record of the first trial, and I have already given the Plaintiffs the breathing space they said they needed to submit a compliant witness list and accompanying will-says.
[26] So I don’t believe it is accurate for the Plaintiffs to say in this motion that, in seeking to renovate will-says, they are following the letter, or even the spirit, of my November 7, 2005 decision.
[27] I believe the issue of renovation is dealt with in my November 7, 2005 and my November 14, 2004 orders which, when read together, make it clear that the will-says that will be used at the trial, and for the purpose of adjudicating compliance, are the will-says that were submitted by the December 14, 2004, deadline.
[28] The present motion by the Plaintiffs is based upon my November 7, 2005, Order. My reading of that Order in its full context and on its face leads me to the conclusion that it does not contemplate the renovation of will-says. This view is supported, in my view, by the comments I made in that decision regarding the will-says of individual witnesses.
[29] In the case of Mr. Shade, I say that his evidence could have some relevance and that if the Plaintiffs seek leave to rehabilitate him they should “indicate which portions of his will-say they still regard as relevant, given the Reasons on this motion.”
[30] I believe this makes it clear that Mr. Shade was excluded because he did not appear on the September 15, 2004, list and because I found his proposed evidence to be of dubious relevance and lacking in detail on some topics, but, if the Plaintiffs really feel he could provide relevant evidence then they should show the Court how the will-say that was submitted for him is compliant and relevant. There is no suggestion here that the Court would consider a renovated will-say.
[31] Likewise, I can find nothing in my comments for the other witnesses (I did not consider Mr. Crowshoe’s will-say because it was served beyond the December 14, 2004, deadline) that would suggest that the Court would entertain a motion for renovation of will-says.
[32] The reason for this, quite apart from the wording in my decision, is that Justice Hugessen’s Pre-Trial Order of March 26, 2004 clearly sets the will-say deadline at September 15, 2004, and my decision of November 7, 2005 merely extends that deadline to December 14, 2004 for the benefit of the Plaintiffs. Those decisions still stand. If they did not, the Plaintiffs would have no witnesses and will-says for the second trial because I struck the Plaintiffs whole witness list in my Order of October 18, 2004 and directed that no witnesses could be called until compliance occurred and the Court ordered otherwise. It would be a very serious matter, indeed, for the Court to, once again, give the Plaintiffs even more time to renovate will-says that should have been served on September 15, 2004.
[33] Even if I were to regard the present motion as a request to renovate will-says that falls outside my previous orders (The Plaintiffs base their motion on my November 7, 2005, Order), I do not believe that the Court should consider such a request at this time. To do so would be entirely inconsistent with previous Court orders which have made it clear, I believe, that the Plaintiffs had to produce compliant will-says by December 14/15, 2005. To allow the Plaintiffs to renovate will-says now would be to allow them to use their own breaches and delays as an opportunity to extend the time for the production of will-says and, in my view, this would be unfair and prejudicial to the Crown and the other participants, particularly at this very late stage of the pre-trial process. It would also be inconsistent with previous decisions.
[34] So I believe that my November 7, 2005 decision does contemplate that the Plaintiffs can seek leave to rehabilitate these particular witnesses, but they must do so on the basis of the will-says submitted on or before the December 2004 deadline, and on the basis of any directions I may have given for a particular witness in my November 7, 2005 decision. The fact that both this Court and the Federal Court of Appeal have taken a narrow approach in interpreting the pleadings does not provide a rationale for revised will-says. The narrow basis was in the pleadings when the Plaintiffs chose their witnesses and composed their will-says. The narrow basis was there before the September 15, 2004 deadline. The fact that this Court and the Federal Court of Appeal may have now excluded proposed evidence that would support broad self-government claims does not change this situation.
Criteria for Rehabilitation
General
[35] In a general sense, in order to persuade the Court that any of the five witnesses named in this motion should be called, the Plaintiffs must demonstrate compliance with the will-say criteria and any other conditions prescribed in relevant Court orders for the calling of witnesses. They also need to satisfy the jurisprudence related to Rule 8 that establishes when an extension of time should be granted. Not all of the five witnesses named in this motion can be treated in the same way because they were excluded for different reasons. However, before I consider each witness in turn, I believe some general remarks concerning the applicability of Rule 8 to the present circumstances would be of assistance.
Rule 8
[36] The Parties agree that, in seeking an extension of time within which to reinstate the five witnesses named in this motion, the Plaintiffs must satisfy Rule 8 of The Federal Court Rules, 1998 and the jurisprudence associated with that rule.
[37] Rule 8 reads as follows:
|
(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
(2) A motion for an extension of time may be brought before or after the end of the period sought to be extended.
(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.
|
(1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
(2) La requête visant la prorogation d’un délai peut être présentée avant ou après l’expiration du délai.
(3) Sauf directives contraires de la Cour, la requête visant la prorogation d’un délai qui est présentée à la Cour d’appel fédérale doit l’être selon la règle 369.
|
[38] Also, as both parties point out, the criteria to be considered when applying Rule 8 are discussed in cases such as Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (C.A.); Stanfield v. Canada, [2005] F.C.J. No. 466 (T.D.); and Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (F.C.A.).
[39] Generally speaking, on the facts before me, the Plaintiffs need to establish:
a) A continuing intention to call the witness in question, or to seek leave of the Court to do so;
b) That the application has some merit;
c) That no prejudice arises from the delay;
d) That there is a reasonable explanation for the delay.
[40] I believe the Plaintiffs are correct when they argue that the weight that the Court will give to the various factors will vary with the circumstances of each case. In fact, on this motion, I believe that the correct balance needs to be considered in relation to each individual witness, unless that witness is excluded for some reason that does not require the Court to consider Rule 8.
THE WITNESSES
Chris Shade
[41] I specifically directed in my November 7, 2005 decision that if the Plaintiffs sought leave to call Mr. Shade they should indicate “which portions of his will-say they still regard as relevant given the Reasons on this motion.”
[42] The Plaintiffs have not done this, but has chosen instead to submit a different will-say that substantially revises the one served by the December 14, 2004 deadline and which is mainly in the form of an oral narrative.
[43] So I still do not know which portions of Mr. Shade’s original will-say to review for compliance in light of the narrow interpretation of the pleadings or, indeed, whether Mr. Shade has anything to say that is relevant to the pleadings as I have interpreted them.
[44] Because the Plaintiffs have chosen not to assist the Court as directed, I do not believe I have any grounds upon which to consider the rehabilitation of this witness. I cannot see that he brings any compliant disclosure to the Court’s interpretation of the pleadings.
[45] In addition, for reasons that I give in relation to Mr. Whitehead, the Plaintiffs have not satisfied me with respect to the Rule 8 requirements for this witness.
Joe Whitehead
[46] I excluded Elder Whitehead because he did not appear on the Plaintiff’s September 15, 2004 list but I gave no indication concerning problems with the will-say that was later submitted for him.
[47] My review of his will-say suggests that it is general, of dubious relevance in places, but that he does say one or two things about community membership and governance. I note the Crown’s objections that this will-say lacks specifics and there is no clear indication as to how this evidence will relate to the Plaintiffs.
[48] However, on the principle that I should err on the side of caution and give the Plaintiffs the benefit of the doubt at this stage, I would say that Elder Whitehead should not be excluded at this stage for non-compliance and that problems associated with his will-say and his evidence can be dealt with at trial.
[49] So the issue for the Court with respect to Elder Whitehead is whether the Plaintiffs can satisfy the Rule 8 criteria in his case.
[50] In terms of those criteria, even if I were to accept a continuing intention and some possible merit, I can find no real explanation for the delay and I believe that the Plaintiffs have left the motion so late for this witness that there is prejudice to the Crown. I can certainly accept the Plaintiffs’ argument that, until the Federal Court of Appeal heard the appeal of my November 7, 2005 decision, it made no sense to seek leave to have this witness rehabilitated. But the Federal Court of Appeal rendered its decision in June 2006, and there was no need to wait until October 20, 2006 for this witness.
[51] Also, as regards a reasonable explanation for delay, Plaintiffs’ counsel asserts that “with respect to Chris Shade and Joe Whitehead, the Plaintiffs were simply not aware of these witnesses until after the September 15, 2004 deadline.” But this is not what the affidavit evidence submitted with this motion reveals. Ms. Partridge’s affidavit says that Ms. Twinn informed her that Mr. Whitehead did not appear on the September 15, 2004 witness list because “his relevant evidence did not become known to her until after September 15, 2004; specifically, when she met him in October or November, 2004 at her office in Slave Lake.”
[52] At best, this evidence is highly ambivalent as it does not explain clearly for the Court whether Ms. Twinn had not met with Mr. Whitehead before September 15, 2004, or whether she had met with him but had failed to realize at that time that he could give “relevant evidence.”
[53] In a motion such as the present one, the Plaintiffs must provide a clear explanation that will allow the Court to see that, notwithstanding reasonable due diligence, their counsel was just not aware of these witnesses or that they were in a position to provide relevant evidence on the issues in the pleadings. I just don’t have that clear explanation in this motion.
[54] For these reasons, then, the Plaintiffs have not satisfied me on Rule 8 with respect to Mr. Whitehead and I do not believe it would be appropriate to add him to the list of witnesses to be called.
Reginald Crowshoe
[55] A will-say was filed for Mr. Crowshoe in December 2004, but I did not review it earlier because it was served after the deadline. It was served, in fact, on December 15, 2004, but beyond the additional time that the Crown consented to extend to the Plaintiffs.
[56] As revealed in the affidavit of Ms. Partridge, and as reflected in the exhibit she refers to, the Plaintiffs failure to serve Mr. Crowshoe’s will-say by the December 14, 2004 deadline was pure inadvertence.
[57] I do not believe that inadvertence of this kind should be used to exclude this witness or his will-say. The mistake was detected within a matter of hours and the Crown received the materials on December 15, 2004. See Armonikos Corp. v. Saskatchewan Wheat Pool, [2002] F.C.J. No. 697, FCT 526 at paragraph 9.
[58] Admittedly, it has to be taken into account that this material should have been served on September 15, 2004, so that the Plaintiffs failure to meet the extension they were granted is no small matter. But in the general scheme of things I cannot see how the Crown or the other participants were really prejudiced by this slip.
[59] Also, when I consider the other Rule 8 criteria, the Plaintiffs have convinced me that an extension of time would be appropriate in this case. The Crown has had this proposed evidence since December, 2004. The slip itself is adequate explanation for the failure to serve on time and I cannot accept that the Crown has been prejudiced by receiving this will-say a day late.
[60] This means that the will-say should now be reviewed for compliance and admissibility in accordance with the criteria set by the Court and followed by the parties themselves.
[61] My review of this will-say suggests that it is general in places and lacking in detail, but Mr. Crowshoe does say he can speak to governance issues for Tsuu T’ina and there is some mention of membership issues.
[62] In accordance with the principles I have applied with other witnesses, that the Plaintiffs must be given the benefit of the doubt at this stage, the Court agrees with the Plaintiffs that this witness should be called, but only on the basis of the will-say that was served for him on December 15, 2004, and subject to any objections that the Crown or the Interveners may wish to raise at trial and the other provisos set out in my November 7, 2005 decision.
William Dreaver
[63] The reasons I gave for excluding Elder Dreaver were that, based upon his will-say, he was being called to give evidence on general self-government and general problems for aboriginal people. I was unable to connect anything he proposed to say with my interpretation of the pleadings.
[64] Nothing has changed. Elder Dreaver’s will-say is non-compliant and he should not be called. I believe this is confirmed by the fact that Plaintiffs have attempted to introduce a new will-say for this witness. His original will-say suggests he cannot help the Court with regard to the issues in the pleadings.
Wayne Roan
[65] When I excluded Mr. Roan, I indicated that “His will-say refers to matters that are not focussed on the issues in the pleadings and/or do not provide the required detail.”
[66] This problem is still there and, based upon his old will-say, the Plaintiffs have still not satisfied the Court in relation to paragraph 2 of Justice Hugessen’s Order of December 8, 2000 that Mr. Roan is likely to give evidence that he did not give at the first trial. I am not satisfied that Mr. Roan has anything materially new to say that he did not say extensively at the first trial. The essence of his evidence on the pleadings as I have interpreted them remains the same. I agree with the Plaintiffs that there is a significant difference between duplication and corroboration both with regard to individual witnesses and witnesses as a group. But there is a special issue with regard to this action that must be kept in mind: the fact of an extensive record from the first trial that Justice Hugessen ruled should not be repeated at the second trial means that the Plaintiffs must come forward in a forthright way and show the Court that, if a witness who appeared at the first trial is called at the new trial, that witness will not repeat the essence of what he or she said at the first trial. I have asked the Plaintiffs on several occasions now to satisfy the Court and the other participants on this point. They still have not done do. Bearing in mind what Justice Hugessen was trying to prevent, I can see no reason to call Mr. Roan again when he gave such a full account of the points listed in his will-say at the first trial.
[67] On this basis, the Court cannot grant leave to the Plaintiffs to call Mr. Roan and there is no need in relation to this witness to consider Rule 8 issues. The Plaintiffs have had every opportunity and a significant period of time to explain to the other participants and the Court what else Mr. Roan could usefully say on the pleadings that he did not say at the first trial. Their failure to do this suggests to me that Mr. Roan has already provided what contribution he is capable of making.
ORDER
THIS COURT ORDERS that
1. For reasons given, the motion is denied for all witnesses except Mr. Reg Crowshoe;
2. Mr. Crowshoe is added to the list of those witnesses the Plaintiffs are entitled to call at the trial;
3. The proposed new will-say for Mr. Crowshoe is rejected and any evidence he gives at the trial will be based upon the will-say filed on his behalf on December 15, 2004;
4. Mr. Crowshoe’s evidence, and his will-say, will be subject to all of the conditions and provisos contained in my Reasons and Order of November 7, 2005 regarding the challenging of evidence at trial;
5. The parties and the Interpreters are at liberty to address the Court on the matter of costs for this motion.
“James Russell”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86-A
STYLE OF CAUSE: SAWRIDGE BAND v. HER MAJESTY THE QUEEN ET AL
T-66-86-B
TSUU T’INA FIRST NATION (formerly the Sarcee Indian Band) v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 29 and 30, 2006
APPEARANCES:
Edward H. Molstad, Q.C. FOR PLAINTIFFS
Marco S, Poretti
Nathan Whitling
Catherine Twinn FOR PLAINTIFFS
E. James Kindrake
Kathleen Kohlman
Wayne M. Schafer
Janell Koch
Janet Hutchison FOR INTERVENER
CONGRESS OF ABORIGINAL
PEOPLES
P. John Faulds FOR INTERVENER
Derek A. Cranna NATIVE COUNCIL OF
CANADA (ALBERTA)
Mary Eberts FOR INTERVENER
NATIVE WOMEN’S
ASSOCIATION OF CANADA
Laura C. Snowball FOR INTERVENER NON- STATUS INDIAN
ASSOCIATION OF ALBERTA
SOLICITORS OF RECORD:
Parlee McLaws LLP FOR PLAINTIFFS
Edmonton, Alberta
Twinn Law Office
Slave Lake, Alberta FOR PLAINTIFFS
Deputy Attorney General of Canada
Chamberlain Hutchison FOR INTERVENER,
Edmonton, Alberta CONGRESS OF ABORIGINAL
PEOPLES
Field LLP FOR INTERVENER,
Edmonton, Alberta NATIVE COUNCIL
OF CANADA (ALBERTA)
Law Office of Mary Eberts FOR INTERVENER,
Toronto, Ontario NATIVE WOMEN’S
ASSOCIATION OF
CANADA
Burnet Duckworth & Palmer LLP FOR INTERVENER,
Calgary, Alberta NON-STATUS INDIAN
ASSOCIATION OF ALBERTA