Date: 20030630
Docket: T-2160-02
Citation: 2003 FCT 815
BETWEEN:
MARGARET
ANDREA EDGAR
Applicant
and
KITASOO BAND COUNCIL: PERCY STARR, CHIEF;
ARCHIE ROBINSON, COUNCILLOR;
ROSS NEASLOSS;
BRIAN MASON, COUNCILLOR
Respondents
REASONS
FOR ORDER
HARGRAVE P.
[1]
This judicial review application, commenced 23
December 2002 and which has now proceeded as far as the serving and filing of
affidavits, involves the challenge of an in-camera Band Council Resolution of
21 November 2002 (“Resolution”). That Resolution banned the Applicant from the
central coast British Columbia Community of Klemtu, by reason of an as yet
unproven charge involving $20 worth of marihuana. The Applicant wishes to
convert the application to an action pursuant to section 18.4(2) of the Federal
Court Act.
CONSIDERATION
[2] The grounds for the application for judicial review are, to
paraphrase:
(i)an arrest at Klemtu, by or on the instruction of the Kitasoo-Xaixais
Police Board on 22 November 2002, the day after the Band Council banishment Resolution
was issued and an immediate removal from Klemtu;
(ii)the Band Council acted without jurisdiction and beyond its jurisdiction,
or refuse to exercise its jurisdiction;
(iii)the Band Council failed to observe the principle
of natural justice by issuing the Band Council Resolution without notice,
without disclosure of the case against the Applicant and without affording the
Applicant an opportunity to respond; and
(iv)the Band Council erred in law by finding, in their Resolution, that the
Applicant had committed an indictable offence, whereas the Applicant was merely
charged, a matter not yet having gone to trial, thus being presumed guilty.
[3] The Applicant seeks to have this judicial review application
converted to an action on various grounds which include: (1) that the affidavit
evidence is polarized and that a proper determination consideration can only be
made by an assessment of each piece of evidence based on viva voce
testimony; (2) that all of the evidence is, by its nature, such that it depends
upon findings of credibility, which in turn requires the witnesses to appear in
person, so that the court may assess their demeanour and credibility; (3) that
the facts are sensitive by reason of the small and remote nature of the
community, the history and culture fo the community and the roles of individual
members of the community and how their relationships intertwine, the assessment
of which, as to relevance and weight, cannot adequately be established by
affidavit evidence; (4) that since the Court Order of 14 February 2003, staying
her banishment, the Applicant, having returned to Klemtu, has been subject to
harassment, including being prevented both from working and from visiting the
community school; (5) that her family has been approached in an unfair manner
by local officials; (6) that the affidavit evidence does not address the
ongoing nature of the effects of the Band Council Resolution; and (7) that
these issues, which are of importance to the aboriginal community of Klemtu,
are particularly difficult to assess in affidavit form, because oral traditions
have been recognised as a generally preferred manner in which to collect and
compile evidence for legal proceedings. Counsel for the Applicant, as a result
of all of this, submits that affidavit evidence is inadequate to fully inform
the Court.
[4] The standard to apply, in determining whether a judicial review proceeding
ought to be converted into an action pursuant to Rule 18.4(2) of the Federal
Court Act, is whether evidence by affidavit will be inadequate, not that
viva voce evidence at trial might be superior; and even then the conversion
should only be allowed in the clearest of circumstances: see Macinnis v.
Canada (Attorney General) (1994), 166 N.R. 57 (F.C.A.) at 60. The Court of
Appeal in Macinnis set out various elements which might and might not
meet this standard, but made the observation that:
|
It is, in general, only where facts of whatever nature cannot be
satisfactorily established or weighed through affidavit evidence that
consideration should be given to using subsection 18.4(2) of the Act. (loc.
cit.)
|
The Court of
Appeal also observed that a conversion might occur “... where there is a need
for viva voce evidence, either to assess demeanour and credibility of witnesses
or to allow the Court to have a full grasp of the whole of the evidence
whenever it feels the case cries out for the full panoply of a trial...” (loc.
cit.). What I take from Macinnis is that if sufficient facts to enable
the Court to decide the issue or issues can be generated by affidavit evidence,
the conversion ought not to occur. In the present instance Mr Justice Lemieux
seemed to easily find sufficient facts to enable him to issue strongly worded
reasons arising out of the successful application for an interlocutory
injunction staying the impugned Band Council Resolution.
[5] The
Court of Appeal in Drapeau v. Canada (Minister of National Defence)
(1995), 179 N.R. 398 (F.C.A.) did add to Macinnis by pointing out that
section 18.4(2) “places no limits on the considerations which may properly be
taken into account in deciding whether or not to allow a judicial review
application to be converted into an action.” (page 399). There, among the
factors which the trial judge had properly taken into account, included the
desirability of facilitating access to justice and also in converting judicial
review, which could deal with only one decision, into an action, which might
deal with a series of decisions which caused damage to the plaintiff, thus
allowing the plaintiff to proceed by way of one action, instead of by way of a
multiplicity of judicial review proceedings. In the present instance, while
the Band Council and the Kitasoo-Xaixais Police Board appear to have made
subsequent unilateral decisions prejudicial to Ms Edgar, she raises only one
issue for judicial review.
[6] In
the present instance at issue is a Band Council Resolution of 21 November 2002:
|
WHEREAS due to the actions of Margaret Edgar as brought before the
Kitasoo Band Council by the Kitasoo-Xaixais Police Board.
WHEREAS on the 9th day of September, 2002
you did traffic marihuana to an undercover police officer, an indictable
offence under the Controlled Drug and Substances Act.
WHEREAS as a result of your actions and upon the
recommendation of the Kitasoo-Xaixais Police Board you are hereby banished
from the village of Klemtu and prohibited from returning to the village of
Klemtu for any reason.
WHEREAS if you enter the village of Klemtu in violation
of this Band Council Resolution you are subject to arrest and charges as a
trespasser.
THAT this Band Council Resolution will be subject to
review by the Kitasoo Band Council in October 2004.
|
At issue is whether the making of this Resolution, in camera, both
without notice to and without the participation of Ms Edgar, either breached
the principle of natural justice or infringed upon her liberty and security of
the person in accordance with the principles of fundamental justice as provided
for in section 7 of the Charter.
[7] Counsel for the Respondents
submits that this is a narrow issue involving the legality of the Band Council
Resolution.
[8] Counsel for the Applicant
submits that there are a multitude of complex and sensitive issues which relate
to historically and culturally specific relationships in the small community of
Klemtu which cannot be adequately considered and assessed without viva voce
evidence. Counsel goes on to point out that it is well-established legal and
anthropological knowledge that the preferred method of communication of
evidence, for many aboriginal peoples, is oral testimony. Counsel feels that
the irrelevant animosities were involved in making the decision and that those
involved ought to give their evidence in a trial setting, subject to
cross-examination, thus allowing the judge to view the demeanour, substance and
credibility of the witnesses.
[9] Counsel for the Respondents
questions the need for viva voce evidence to explain to the judge the
organization of aboriginal communities, relying upon the unreported decision of
Mr Justice Lemieux in Misquadis v. Canada (Attorney General), 12
September 2002, docket T-1274-99, [2000] F.C.J. No. 1488 (QL), at issue being
the delivery of educational and training services to urban aboriginal
communities. In Misquadis the applicants wished to have oral testimony
not only to resolve contradictions in the affidavits, but also on the basis
that “the nature of aboriginal communities are oral societies and that the
history and politics of aboriginal communities is not found in books or in
written materials but passed on through oral tradition.” (paragraph 11). This
submission was rejected for the Court not only felt that conflicting affidavit
evidence was not a special circumstance, but also that oral testimony was not
needed “... to explain how urban aboriginal communities are organized today and
how they make decisions.” (paragraph 15). However Mr Justice Lemieux went on
to grant the applicant leave to file further affidavit evidence on how urban
aboriginal communities functioned in Winnipeg, Toronto and Niagara Falls. This
case is helpful, but not particularly on point, for at issue is not the way in
which the community of Klemtu is structured, but rather the basis for the
allegedly unfair approach taken in promulgating the Band Council Resolution.
However, Mr Justice Lemieux also had to consider whether oral evidence was
necessary in order to explain interrelationships in the communities.
[10] In the present instance a
major concern is the existence of two letters, both written after this judicial
review proceeding was commenced. The first is dated 5 April 2003 and is signed
by Members of the Kitasoo-Xaizais Police Board. It is directed to someone at
the Kitasoo Community School, raising concerns about Ms Edgar being in
attendance at the School and the immediate area during school hours, Ms Edgar
having been asked to attend at the Community School to assist with an event.
That letter refers to Ms Edgar presently being before the courts for
trafficking in a narcotic. In effect the letter bans Ms Edgar from attending
at the School or in the immediate area during school hours. Counsel for Ms
Edgar tenders the letter as evidence of ongoing harassment.
[11] More insidious, is a
letter of 14 May 2003 from the Kitasoo Band Council, signed by Percy Starr, who
styles himself as Chief Councillor/Band Manager, and also swears affidavit
material in this action as “Chief of the Kitasoo Band Council, Hereditary Chief
of the Kitasoo-Xaizais Band and Member of the Order of Canada”. The effect of
the 14 May 2003 letter is to order a termination of her employment with an
entity called Co-Management. Here we have a decision going beyond mere
harassment, a decision which cuts away the income of Ms Edgar, a step taken
without her being able to have any input or to address the decision-maker, a
point made by Mr Justice Lemieux in his reasons staying the initial banishment
Resolution. The letters certainly broaden the scope of the judicial review
beyond that as characterize by counsel for the Respondents: indeed, both
letters can be read in terms of ongoing harassment and in breach of the sort of
fairness referred to by the Supreme Court of Canada in Nicholson v.
Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311 and Martineau
v. Matsqui Institution, [1980] 1 S.C.R. 602, cases relied upon by Mr
Justice Lemieux.
[12] In that a consideration
of section 18.4(2) is, by Drapeau (supra), open-ended so far as
factors are concerned, I have also thought about the effect that full discovery
of documents, proper examination for discovery and the likelihood of eventual
and thorough cross-examination before a judge might have on settlement. This
is a proceeding which given the views of Mr Justice Lemieux, ought to be
settled by the parties. Mr Justice Lemieux was particularly scathing, in
commenting upon the banishment Resolution, in his reasons of 13 February 2003,
following which he granted an injunction staying the banishment Resolution:
|
[30] ... The applicant in my view has a very
strong case that a breach of fairness invalidates the Resolution. She was
banned from her community without being able to address the decision-maker
(the Band Council). One simply has to refer to the decisions of the Supreme
Court of Canada in Nicholson v. Haldimand-Norfolk Regional Police
Commissioners, [1979] 1 S.C.R. 311 and Martineau v. Matsqui
Institution, [1980] 1 S.C.R. 602.
|
The two Supreme Court of Canada cases to which Mr Justice Lemieux
refers make reference to a well-known passage from Furnell v. Whangarei High
School Board [1973] A.C. 660 (P.C.) at 679:
|
Natural justice is but fairness writ large and
juridically. It has been described as “fair play in action.” Nor is it a
leaven to be associated only with judicial or quasi-judicial occasions. But
as was pointed out by Tucker L.J. in Russell v. Duke of Norfolk [1949]
1 All E.R. 109, 118, the requirements of natural justice must depend on the
circumstances of each particular case and the subject matter under
consideration.
|
[13] The absence of fairness
and natural justice, which the Applicant alleges in her Notice of Application,
would seem to be ongoing. This is one of the reasons why the Plaintiff wishes
to convert this judicial review proceeding into action and to proceed through
the complete array of procedure leading to the trial of this matter as an
action. Given the views of Mr Justice Lemieux this matter ought to be settled
I would also observe that only a small percentage of actions commenced actually
conclude with a trial before a judge, but rather are settled and that the vast
majority of settlements occur once each side has examined and has been examined
for discovery, for then there may be full assessments by counsel and clients.
Now this excursion into settlement while not a direct benefit in the sense of
showing that affidavit evidence is inadequate, is certainly an overall benefit
to the Court which has finite judicial resources: affidavit evidence and
cross-examination on affidavits may be inadequate in order to bring about a
settlement.
[14] Counsel for Ms Edger made
a number of points in argument, some of which might have been important,
relevant and real, however they were not founded on evidence and thus I did not
take notice of them.
[15] Taking appropriate notice
of the submissions and evidence, I do not find that the present situation is
one which embodies the clearest of circumstances demonstrating that affidavit
evidence will be inadequate. Certainly live evidence would in all likelihood
be far superior but, as I say, affidavit evidence should be adequate, with a
proviso.
[16] In Misquadis (supra)
Mr Justice Lemieux gave leave to file affidavit evidence dealing with the
function of aboriginal communities in various cities. In the present instance
Ms Edger has leave to file affidavit evidence exhibiting the 5 April 2003
letter from the Kitasoo-Xaixais Police Department and the 14 May 2003 letter
from the Kitasoo Council, together with any other evidence, including fresh
facts, addressing the ongoing effect of the Band Council Resolution and the
nature of that effect, since her return to the community following the 14
February 2003 resolution of the Band Council Resolution. This material would
be of assistance in providing an adequate pool of evidence thus allowing the
Court to have a more full grasp of the overall evidence and situation. Such
after- the-event material is also relevant: see for example Tahsis Co. Ltd.
v. Vancouver Tug Boat Co., [1969] S.C.R. 12 at 34, where Mr Justice Pigeon
considered recommendations and loading instructions issued well after a barge
loading accident.
[17] In rejecting the
submissions of counsel for Ms Edgar as to need to oral testimony, in a trial
setting, in order to deal with voice to the evidence of underlying animosities
and ongoing discrimination, I am aware of the importance of flexible rules of
procedure and evidence, such as those referred to by Mr Justice Gibson in Kingfisher
v. Canada, 2001 FCT 858, an unreported 8 August 2001 decision in file
T-518-85. Oral history related to historical matters, may be required where
there is insufficient documentary evidence to provide the aboriginal
perspective on rights claimed, in order to promote truth finding and fairness:
see Kingfisher at paragraphs 51 through 58. However, in the present
instance, I am not convinced that affidavit evidence, augmented as I have
ordered, will be inadequate.
[18] The time for completion
of cross-examination on affidavits is extended until close of business on 22
July 2003. Costs will be in the cause.
(Sgd.)
“John A. Hargrave”
Prothonotary
Vancouver, British Columbia
30 June 2003
Email this Content