Sawridge Band v. Canada, 2005 FC 607

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2005 FC 607

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Date: 20050503

Docket: T-66-86A and T-66-86B

Citation: 2005 FC 607

Ottawa, Ontario, this 3^rd day of May, 2005

Present: The Honourable Justice James Russell

BETWEEN:

SAWRIDGE BAND

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

and

NATIVE COUNCIL OF CANADA,

NATIVE COUNCIL OF CANADA (ALBERTA)

NON-STATUS INDIAN ASSOCIATION OF ALBERTA

NATIVE WOMEN'S ASSOCIATION OF CANADA

Interveners

and

TSUU T'INA FIRST NATION

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

and

NATIVE COUNCIL OF CANADA,

NATIVE COUNCIL OF CANADA (ALBERTA)

NON-STATUS INDIAN ASSOCIATION OF ALBERTA

NATIVE WOMEN'S ASSOCIATION OF CANADA

Interveners

TABLE OF CONTENTS

Page

THE MOTION.............................................................................................................................. 4

BACKGROUND .......................................................................................................................... 9

The Involvement of Hugessen J. ................................................................................... 10

The Involvement of Russell J. ....................................................................................... 19

THE PRESENT IMPASSE ........................................................................................................ 44

THE PLAINTIFFS' MATERIALS ........................................................................................... 50

THE LAW ................................................................................................................................... 57

THE PLAINTIFFS' ORAL ARGUMENT ............................................................................... 64

Apprehension of bias in the Federal Court - Fundamentals ......................................... 66

How Muldoon J. Influenced Hugessen J. ...................................................................... 70

How Hugessen J. Influenced Russell J. ........................................................................ 83

June 29, 2004, Amendments to Pleadings ..................................................................... 91

October 18, 2004 - the Will-Say Issue ......................................................................... 100

November 25, 2004 - The Plaintiffs' suggestions for a Workable Solution ............... 112

Will-Say Statements - Change of Position by Crown and Interveners ...................... 133

Pre-Judging ................................................................................................................... 146

Comments Directed at Plaintiffs' Counsel .................................................................. 151

Spurious and Disingenuous .......................................................................................... 160

Rank Opportunism ....................................................................................................... 166

The Reprimand .............................................................................................................. 190

The Fundamental Issue ................................................................................................ 198

THE PLAINTIFFS' WRITTEN ARGUMENT ...................................................................... 201

Allegations Against the Federal Court ........................................................................ 208

Allegations Against Hugessen J. ................................................................................. 225

Allegations Against Russell J. ..................................................................................... 229

Conclusions on the Plaintiffs' Memorandum of Argument ......................................... 254

GENERAL CONCLUSIONS .................................................................................................. 257

CONDUCT ISSUES ................................................................................................................. 261

ORDER ..................................................................................................................................... 269

REASONS FOR ORDER AND ORDER

THE MOTION

[1] In this motion, the Plaintiffs are asking the Court to find a reasonable apprehension of bias against the trial judge, Russell J., and seek an order that he recuse himself from the proceedings, even though the trial has yet to begin.

[2] In addition, the Plaintiffs say that the Federal Court itself has demonstrated a pattern of apprehended bias towards them in these proceedings that requires relief. In their Notice of Motion, the Plaintiffs asked the Court to consent to a transfer of the proceedings to the Alberta Court of Queen's Bench or, in the alternative, that a judge of either the Federal Court or the Alberta Court, and mutually agreed upon by the Plaintiffs and the Crown, be appointed to hear the trial.

[3] This request was modified at the hearing of the motion and the Plaintiffs' asked for a recommendation from the Court that the Chief Justice of the Federal Court appoint a judge acceptable to both the Plaintiffs and the Crown. The Crown does not consent to this proposal.

[4] As regards Russell J., the grounds for an apprehension of bias set out in the Notice of Motion are as follows:

(a) Russell J. has demonstrated apprehended bias, the particulars of which include but are not limited to:

(i) making statements which indicate a predisposition against the Plaintiffs with respect to the central allegation raised by the Plaintiffs, namely their alleged right to self-government;

(ii) interfering with the Plaintiffs' right to adduce evidence in presenting their case to support, inter alia, their right of self-government;

(iii) using sarcastic, disrespectful language reserved for the Plaintiffs only;

(iv) making unfounded comments suggesting that Plaintiffs' counsel were acting in a professionally unethical manner;

(v) unfairly attributing in Reasons improper conduct and motive to the Plaintiffs and their counsel;

(vi) making comments which could be reasonably inferred as indicating that he has prejudged the credibility of the Plaintiffs' evidence about, inter alia, their alleged right to self-government;

(vii) making decisions which reasonably viewed constitute a breach of the rules of natural justice;

(viii) appearing to have reviewed evidence which was not before him to find support for a position asserted by the Crown;

(ix) making, without foundation, a "devastating finding of credibility against the Plaintiffs";

(x) not providing Plaintiffs' counsel his concerns before releasing his reasons where he intended and did make serious finding;

(xi) manufacturing a reason to attribute improper motive to a Plaintiff counsel to allow him to interfere with the Plaintiffs' right to present their case;

(xii) repeatedly treating the Plaintiffs unfairly. He:

1. Adopted submissions made by counsel opposite the Plaintiffs directed against the Plaintiffs which were obviously incorrect and misleading;

2. Allowed counsel opposite the Plaintiffs to repeatedly make submissions which were obviously disingenuous and relied on same despite repeated efforts by Plaintiffs' counsel to correct those submissions;

3. Used the authority and weight of the Court to attempt to prevent Plaintiffs' counsel from making submissions on behalf of the Plaintiffs to support their case. He reprimanded Plaintiffs' counsel when they pointed out to him that opposite counsel were making obvious misleading submissions to him; and

4. Mischaracterized, in his Reasons, arguments presented by the Plaintiffs before dismissing them summarily;

(xiii) began treating the Plaintiffs more fairly only after he became aware of the allegation of apprehended bias;

(xiv) expressing concern, after becoming aware of the allegation of apprehended bias, about his own impartiality;

(xv) engaging in private conversations with the Crown;

[5] At the hearing, ground (xv) - "engaging in private conversations with the Crown" - was withdrawn.

[6] As regards the Federal Court, the Plaintiffs merely allege in their Notice of Motion that the Court "has demonstrated a pattern of apprehended bias with respect to the within proceedings," but then go on to elaborate grounds in their written submissions that include actions by Muldoon J. (the judge in the first trial), Hugessen J. (the case management judge following the first trial), the former Associate Chief Justice of the Federal Court, and Russell J. (the judge appointed to preside over the second trial) that both severally and cumulatively, they say, give rise to an apprehension of bias against the Plaintiffs within the Federal Court. In fact, notwithstanding that the motion was ostensibly based upon a reasonable apprehension of bias, the Plaintiffs also said in their written submissions that there was evidence to support a finding of actual bias. When the implications of such an allegation were pointed out by the Court at the hearing, Mr. Shibley, who presented the oral argument for the Plaintiffs on this motion, withdrew the offensive wording from paragraph 3 of the Plaintiffs' Memorandum of Argument which said "There is however some evidence to support such a finding [i.e. actual bias]."

[7] Unfortunately, this does not remove the problem entirely because there are statements throughout the written materials that are, in fact, allegations of actual bias.

[8] The Plaintiffs' apprehensions about other judges of the Federal Court who are not actually identified are somewhat ambivalent. Some of their witnesses appear to suggest that the Federal Court does have judges who would give them a fair trial; others are not so sanguine.

[9] In their Memorandum of Argument, the Plaintiffs say that "although they believe that there may be Federal Court trial judges who would be fair, they do not believe that those who have been assigned to this case to date have been and are concerned about what would happen if another Federal Court trial judge not mutually agreed to was assigned to hear this case."

[10] In other words, there "may be" fair judges within the Federal Court, but there may not be, so that unless the Plaintiffs are given a say in the appointment of a new trial judge, their concerns in this regard cannot be assuaged.

BACKGROUND

[11] The proceedings of which the present motion is a part have a long and tortuous history that goes back to 1986.

[12] The first trial took place in 1993 and 1994 before Muldoon J. who reached a judgment and issued reasons in 1995.

[13] The Plaintiffs appealed that decision and the Federal Court of Appeal ordered a new trial on the basis that the reasons of Muldoon J. gave rise to a reasonable apprehension of bias.

[14] For purposes of the present motion, it is the procedural history since the Federal Court of Appeal's decision in 1997 that is important.

[15] That procedural history is difficult to ascertain from the Plaintiffs' materials because they conflate argument and evidence. The choice of facts is, of course, an interpretive act in itself, but when facts are combined with argument, opinion and commentary, there are distinct dangers that I will come to later when I address the problems associated with the Plaintiffs' evidence and their written materials generally.

[16] For purposes of providing a dispassionate framework for understanding the issues at play in this motion, I have relied upon the Court record available to me. To assist understanding, I intend to give only a skeletal account here, and that will be supplemented later with the details needed to assess the separate allegations made by the Plaintiffs.

[17] Following the Federal Court of Appeal decision in 1997 that ordered a new trial, Hugessen J. was appointed as case management judge on June 12, 1997.

The Involvement of Hugessen J.

[18] On June 13, 1997, Hugessen J. sent a memorandum to all counsel involved in the proceedings and invited them to apply jointly for a new trial date. No one responded.

[19] The lack of response eventually prompted the equivalent of a notice of status review on May 20, 1998 that required the parties to show cause why the action should not be dismissed for delay.

[20] This elicited a response from the Plaintiffs who advised Hugessen J. that they intended to seek an amendment to the pleadings so that they could take advantage of Supreme Court of Canada jurisprudence, including the decision in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

[21] A show cause hearing was held on June 26, 1998.

[22] On September 23, 1998, the Plaintiffs brought a motion to amend their Statement of Claim. In their written submissions they made the following important arguments about the nature of their claim:

This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-31") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...

The proposed formulation of the rights to be asserted by the plaintiffs, and the application of the current law to those rights to be alleged by the plaintiffs, remain sufficiently closely connected to the plaintiffs' existing pleading that an additional second action is not necessary. Multiplicity of proceedings ought to be avoided.

The right to determine membership is a core right and even an essential element of any self-government claim. In fact, the defendant Crown accepts that there is an inherent right of self-government which includes at least some form of the right to determine membership.

Factum of the Plaintiffs, served September 21, 1998, at paras. 3, 5, and 7

Motion Record of the Plaintiffs dated July 21, 1998, at Notice of Motion, at para. 6, and Affidavit of Martin Henderson, paras. 1, 5, 6

...

[23] It is also significant that at the 1998 Amendment Motion hearing, Plaintiffs' counsel made the following statement:

...In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.

Short of writing out the rules we apply, you can't be more specific than that. And that is exactly what Chief Justice Lamer says I have to be. I do have to define it as rationally and as centrally as possible. I can't be broad.

So when I put forward the new claim, we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of our self-government.

...

In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]

Transcript of September 23, 1998 Motion, at page 37:1 - 10; 37:16 - 37:22 and 123:17 - 17

[24] These statements are important because there is now disagreement between the Plaintiffs and the Crown as to what the amendments allowed by Hugessen J. in 1998 were intended to encompass in terms of the concept of self-government.

[25] Hugessen J.'s Order of September 23, 1998, granted amendments to the Statement of Claim on condition that the Plaintiffs, the Crown and the Interveners would provide a detailed list of those parts of the transcript from the first trial that they objected to being used as evidence in any new trial on the pleadings.

[26] On March 10, 1999, the Plaintiffs filed Fresh as Amended Statements of Claim.

[27] The Plaintiffs, however, did not like the condition regarding the use of the transcript from the first trial and objected to it. They took the position that evidence from the first trial should not be used in a re-trial because it had been tainted by the comments of Muldoon J.. The Crown and the Interveners took the position that all of the evidence from the first trial could be used at a re-trial except for the trial judge's comments and interventions.

[28] Hugessen J. rejected the Plaintiffs' position. He was concerned that allowing counsel to call witnesses who had already given their evidence would represent a huge expenditure of time and money, both private and public, and would not be cost efficient. As a result, on December 7, 2000, following a motion for directions arising out of his Order of September 23, 1998, Hugessen J. ordered that the transcript of any evidence from the first trial could be used in a re-trial, and that witnesses who had given evidence at the first trial could not give the same evidence in the second trial, although they could give other evidence.

[29] In making his Order of December 7, 2000, Hugessen J. said in his December 13, 2000 reasons that the "issues of the second trial are fundamentally the same as they were at the first," and he also observed that the "factual matrix" remained essentially the same. These words are important because the Plaintiffs now say that they show Hugessen J. attempting to contain the lis and influence the scope of the re-trial, even after he had granted amendments in 1998 that allowed the Plaintiffs to take advantage of new jurisprudence and to marshall new evidence to support the self-government aspects of their claim.

[30] The Plaintiffs appealed Hugessen J.'s Order of December 7, 2000, but did not challenge his characterization of the issues or his assessment of the factual matrix. Nor did the Plaintiffs

allege any kind of bias against Hugessen J.. This is important because, on the motion presently before the Court, the Plaintiffs now say that the statements made by Hugessen J. concerning the issues at play and the factual matrix were inappropriate and give rise to a reasonable apprehension of bias on the part of Hugessen J. in that he was attempting to control the scope of the re-trial in a way that would not allow them to mount their case for self-government. What is more, the Plaintiffs say that these statements have influenced Russell J.'s subsequent handling of the proceedings to an extent that has given rise to a reasonable apprehension of bias on the part of Russell J..

[31] The Plaintiffs' appeal against the December 7, 2000 Order of Hugessen J. was dismissed. The Plaintiffs also appealed Hugessen J.'s Order of September 23, 1998. That appeal was also dismissed.

[32] Hugessen J. continued to encounter difficulties in moving the proceedings towards trial. It seems that orders he made simply were not followed. This necessitated his having to take tighter control of the case management process.

[33] For instance, on September 28, 2001, Hugessen J. decided that he had to set limits on the discovery rights of the parties:

...

I will, however [in lieu of setting a trial date as sought by an intervener], make a number of provisions which are intended to see to it that the parties move the matter forward. Obviously, the orders that I have made to date, which have largely not

been complied with, have not been adequate to bring the matter on. Therefore I propose to do a number of things.

First, I am going to place a limit on examinations for discovery. All examinations are to be completed by May 1, 2002...

Sawridge Band v. Canada, [2001] F.C.J. No. 1488, paras. 8 - 9

...

[34] The record shows that Hugessen J. found himself having to deal with "a pattern of uncooperative and obstructive behaviour on the part of the Plaintiffs'' counsel" which he felt was "worthy of serious reprimand." As a consequence he found he had to reduce the Plaintiffs' discovery time.

[35] On November 30, 2001, Hugessen J. reduced the Plaintiffs' time for discovery of the Crown's representative by five days in the Sawridge action and ten days in the Tsuu T'ina action. The reasons he gave for doing this suggest that he was encountering extreme difficulties with moving the actions forward, and that he observed uncooperative and obstructive behaviour by Plaintiffs' counsel:

(a) in the Sawridge Action:

The most important single issue raised by the Motion is the plaintiff's failure to provide proper documentary production. The action is not new. One trial has already been held. It is literally years since a new trial was ordered...

In my view, the transcript of the examination of the plaintiff herein reveals that counsel for the plaintiff has not complied with either the [earlier] Order of this Court [to answer objected questions under reserve of objection] or Rule 241.

Beyond an order designed to oblige the plaintiff's counsel to remedy this situation forthwith, I also propose to impose a procedural sanction on the

plaintiff for this unacceptable behaviour. As a part of a previous scheduling Order, I granted a number of days to each party for completing their discoveries. Because she has abused the discovery time allotted to her, the plaintiff shall forfeit five days of discovery time previously allotted to her for the examination of the Crown's representative. [emphasis added]

Sawridge Band v. Canada, [2001] F.C.J. No. 1841, at paras. 12, 16 and 17

(b) in the Tsuu T'ina Action:

First, it must be clear from what I have already said that I regard the failure to produce the plaintiff Starlight on September 13 and 14 as inexcusable...

Subsequent to the bringing of this Motion, the conduct of the plaintiff and his counsel has, if anything, gotten worse...

Finally, the transcript of Crowchild's examination has been provided to me and reveals that counsel for the plaintiff has not complied with either the Order of this Court [to anser objected questions under reserve of objection] or Rule 241.

Crown counsel has provided numerous examples where counsel for the plaintiff has failed to comply with this order and acted inappropriately. I am satisfied that the transcript evidences a pattern of uncooperative and obstructive behaviour on the par of plaintiff's counsel which, in my view, is worthy of serious reprimand. Repetition of this conduct will not be tolerated and I would order the plaintiff to remedy the situation forthwith.

As in a related case, I propose to sanction plaintiff's conduct, which is particularly bad, by forfeiting a number of days previously assigned to this plaintiff for his discovery of the Crown's representative. The conduct being significantly worse than in the other case, the number of forfeited days will be ten. [emphasis added]

Starlight v. Canada, [2001] F.C.J. No. 1840, at paras. 12 - 16

...

[36] But the difficulties did not end here. The Plaintiffs sought leave to put written interrogatories to each of the Interveners in this case. In reasons dated June 19, 2002, Hugessen J. found that some of the questions were "extraordinarily burdensome and would require a vast

amount of work" that would serve no ultimate purpose. At this stage, Hugessen J. also said in the same Order:

Finally, and this too plays a large part in my exercise of discretion. This case has not had an easy path to date, and I do not see it having an easy path in the next months and years as we strive, all of us, to bring it on to trial. I do not impute motives to anybody because I accept that all parties and the Interveners have a genuine interest in having the case tried. I accept that unreservedly but if these interrogatories were allowed to stand, they would inevitably and beyond any shadow of a doubt add enormously to the time, already far too long, which would be required between now and the date when finally the Plaintiffs will stand and open their case before the Trial Judge.

Sawridge Band v. Canada, [2002] F.C.J. No. 933 at paras. 5, 6 and 8 and 9.

[37] However, in 2003, the Plaintiffs served 14,000 written interrogatories on the Crown which Hugessen J. struck as an abuse of the Court and ordered costs of $20,000.00 against the Plaintiffs.

[38] Discovery continued to be difficult. The Crown brought six motions in each action regarding problems encountered during discovery; the problem included unfounded refusals and failures to provide timely answers to undertakings.

[39] Eventually, a pre-trial conference was held on February 27, 2004 and an Order issued dated March 26, 2004 that provided a comprehensive road map to take the matter to trial on January 10, 2005.

[40] Hugessen J.'s Pre-Trial Order of March 26, 2004 is central to what follows and is reproduced here in full:

1. The trial of these matters will take place at Edmonton, Alberta, starting January 10, 2005.

2. Completion of discoveries:

(a) Plaintiffs' answers to Crown's interrogatories to be served and filed by April 30, 2004;

(b) New Crown affidavit of documents to be served by April 30, 2004;

(d) Other "gap" documents (ie., omitted by error from previous production) to be produced by June 30, 2004.

3. Any discovery questions arising out of new documentary production are to be written interrogatories following leave obtained on motion pursuant to Rule 369.

4. Subject to any further directions from the Trial Judge the trials are to be held concurrently.

5. All expert reports for use at trial are to be served by July 15, 2004.

6. Rebuttal expert reports (which shall be limited to answering or contradicting any expert reports produced by others) are to be served by October 29, 2004.

7. Any other expert reports may only be produced by leave of the Court obtained on prior motion.

8. Any person desiring to lead oral history evidence shall serve a detailed summary thereof no later than June 30, 2004.

9. All persons intending to lead evidence at trial (including oral history evidence) shall serve witness lists and "will say" statements (including language if other than English and name of interpreter if known) on or before September 15, 2004.

10. Use of transcripts from the first trial is governed by the Order of December 8, 2000; persons intending to use such transcripts shall inform all other of which transcripts are intended to be so used on or before June 30, 2004.

11. Transcripts from discoveries intended to be read in by any person are to be served no later than November 15, 2004.

12. Any amendments to the pleadings shall be on leave obtained on motion brought pursuant to Rule 369 on or before May 18, 2004.

13. It is hoped to convene an early trial management conference to be presided by the Trial Judge to deal inter alia with:

(a) the formation of a document database for the trial;

(b) any problems relating to the interpretation of the evidence given in a language other than English.

14. The participation of interveners at the trial is the subject of Orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000.

15. Interveners shall respect the various dates set out in the foregoing Order.

[41] Russell J. was appointed trial judge in late March, 2004 and, at this point, Hugessen J. ceased to have any further involvement with the proceedings.

The Involvement of Russell J.

[42] After being appointed trial judge, Russell J.'s first order of business was to deal with applications from both the Crown and the Plaintiffs to amend the pleadings. The Crown sought leave to amend its Statement of Defence and the Plaintiffs sought leave to further amend their Fresh as Amended Statements of Claim.

[43] Russell J. allowed some amendments but disallowed others for both the Crown and the Plaintiffs. The important matter to note, however, is that the Plaintiffs' proposed amendments would have included within their pleadings a general claim to self-determination at large.

[44] The Crown opposed the self-determination at large amendments on the grounds that they were not proper and went far beyond the pleaded position of the Plaintiffs' rights to control their own membership.

[45] The Plaintiffs disagreed with the Crown's position and said that their proposed amendments "do not affect the prayer for relief and do not create a new course of action."

[46] For reasons expressed in his Order of June 29, 2004, Russell J. disallowed those amendments proposed by the Plaintiffs that dealt with a new claim for self-determination, or that raised allegations about First Nations other than the Plaintiffs.

[47] This is what Russell J. said in his June 29, 2004 Order on this issue:

...

26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:

a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and

b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and

c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.

the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.

...

[48] The Plaintiffs did not appeal Russell J.'s June 29, 2004 Order dealing with the amendments, and certainly did not raise in any other way that the Order or its reasons displayed a reasonable apprehension of bias towards them.

[49] This is important because, in the present motion, the Plaintiffs claim that there is an apprehension of bias that can be traced back through the June 29, 2004 Order to rulings and comments made by Hugessen J.. Essentially, they say that since the Federal Court of Appeal judgment in 1997, Hugessen J. and Russell J. have been supporting the Crown (or there is at least a reasonable apprehension that they have been supporting the Crown) to ensure that the concept of self-government (as they now wish to define it) is kept out of these proceedings and that the Plaintiffs not be allowed to lead evidence on that issue.

[50] Notwithstanding the June 29, 2004 Order of Russell J. that specifically denied proposed amendments dealing with self-determination, the Plaintiffs say they only realized much later (December, 2004) that there was an apprehension of bias, which is why they did not appeal the June 29, 2004 Order of Russell J..

[51] Russell J.'s first meeting with counsel for all parties occurred on September 17, 2004 in Edmonton. The general purpose of the meeting was to ascertain if there were any issues that still needed resolution following Hugessen J.'s Pre-Trial Order of March 26, 2004 and to discuss practical matters related to the administration of the trial that was due to commence on January 10, 2005.

[52] Russell J. discovered that all was not well between the parties. There were still important differences that needed to be resolved before the trial could begin. In fact, the points of contention were much more pressing than any of the practical and administrative topics that were raised.

[53] For purposes of the present motion before the Court, it is important to note that, on September 17, 2004, the Crown immediately raised with the trial judge fundamental concerns about "philosophical differences" between the Crown and the Plaintiffs over what the pleadings encompassed, and the nature of the witness list and will-say statements that the Plaintiffs had

served on September 15, 2004, which was the deadline set by the Pre-Trial Order of Hugessen J. for the filing of those materials.

[54] The transcript of the September 17, 2004 Trial Management Conference indicates that the Crown felt there was a:

... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings, as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings...

Transcript of September 17, 2004 Conference, Mr. Kindrake at 25:20 to 26:1

[55] As regards the will-says of the Plaintiffs, the Crown's position was that they were inadequate and did not comply with Hugessen J.'s Pre-Trial Order.

[56] The Court felt these were problems of such a magnitude that they needed to be dealt with quickly and before the trial began.

[57] The Plaintiffs were represented on September 17, 2004 by Mr. Henderson, Mr. Healey, and Ms. Twinn. The transcript shows that Mr. Henderson agreed with the Court that important matters of relevance should be dealt with before the trial began. This is significant because Mr. Henderson ceased to be involved with the proceedings soon after the September 17, 2004 meeting, and Mr. Healey subsequently began to resist the Crown's attempts to raise scope and relevancy issues with the Court.

[58] The other important factor to note is that, on September 17, 2004, the Crown clearly connected its will-say concerns with the pleadings. The Crown's position from the beginning was that the issue of self-government required an interpretation of the pleadings, as amended, to discover what was determinative for the relevance of any evidence to be called at trial. The Crown has made it very clear, as part of the present motion and on previous occasions, that it does not take the position that there is no aspect of self-government in the pleadings. What the Crown disputes is the notion that the pleadings encompass a broad, generalized claim to self-government at large. Hence, the Crown objects to the Plaintiffs calling new evidence on that issue.

[59] The Court took the position that these were matters of such import that they required full argument and should not be decided as part of a trial management conference. In fact, the Court directed, inter alia, that the will-say concerns of any party should be raised by way of motion, and the motions would be heard together.

[60] Following the September 17, 2004 Trial Management Conference, the Crown brought two motions related to the Pre-Trial Order of Hugessen J. dated March 26, 2004.

[61] In the first motion, the Crown sought an extension of time within which to serve the Crown's rebuttal expert reports under s. 6 of Hugessen J.'s Order. But, as pointed out in his

Order of October 18, 2004, Russell J. felt the Crown was conflating two separate issues. The first issue was whether Dr. von Gernet, the Crown's expert, should be given more time to file rebuttal expert evidence. The second issue was whether, as part of his rebuttal evidence, Dr. von Gernet should be allowed to address the Plaintiffs' oral history evidence, and whether he should be allowed to do so at a time during the trial after oral histories had been entered by the Plaintiffs.

[62] While Russell J. allowed the Crown an extension to file expert rebuttal reports, he agreed with the Plaintiffs that Dr. von Gernet should not be allowed to comment upon the reliability of the oral history evidence of a particular witness after that evidence was given. The position he took was that the credibility or truthfulness of a particular witness is for the Court to decide.

[63] On the second motion, the Crown applied to the Court to strike the Plaintiffs' witness list and will-say statements that had been served on September 15, 2004 for failure to comply with the Pre-Trial Order of Hugessen J.. The Crown also asked the Court to direct that the Plaintiffs should not be allowed to call any of the witnesses on the list at the trial. The Plaintiffs did not bring a motion at this time concerning any perceived deficiencies in the will-says of the Crown or the Interveners.

[64] The Crown's motion required an interpretation of Hugessen J.'s Pre-Trial Order as it related to will-say matters, and Russell J.'s decision sets out how he went about doing that and the conclusions he reached.

[65] He decided that the witness list and the will-says presented by the Plaintiffs were deficient and were not adequate for preparation and effective trial procedure for a variety of reasons:

a) They were not individualized and were merely a large pool of potential witnesses and a list of topics;

b) The language to be used by each witness was not identified as required by paragraph 9 of Hugessen J.'s Pre-Trial Order;

c) The Plaintiffs had merely provided a list of topics rather than a synopsis of what each individual witness would say;

d) The statements pertaining to oral histories did not identify the actual past practices, customs and traditions of the community in question.

[66] Notwithstanding these deficiencies, the Court did not do what the Crown wanted it to do, which was to exclude the individual witnesses identified from giving evidence.

[67] The Court was cognizant of the dispute between the Crown and the Plaintiffs concerning scope and relevance. So the Court struck the witness list and the will-says served by the Plaintiffs on October 18, 2004, for non-compliance and gave the Plaintiffs leave to apply to the Court with proposals for a "workable solution" to the problems caused by their non-compliance:

Bearing in mind the amount of time that remains before the trial begins on January 10, 2005, the Plaintiffs have leave to apply to the Court with proposals for a workable solution to the problems caused by their non-compliance with the Pre-Trial Order and their production of deficient witness lists and will-says.

[68] This approach needs to be placed in the context of what the Plaintiffs had argued before the Court in responding to the Crown's motion on the witness list and will-says. These matters are set out in Russell J.'s Order of October 18, 2004.

[69] First of all, the Plaintiffs took a very hard line and refused to acknowledge that there was anything wrong with the witness list and will-says they had produced on September 15, 2004, even though they were obviously not individualized and merely said that certain persons would "provide their testimony in their indigenous language." So the Plaintiffs did not ask for any additional time to complete their will-says or suggest ways in which the deficient materials they had produced could be improved.

[70] Also very telling was the fact that the list of potential witness identified between 140-150 names. Such a large body of witnesses had not been brought to Hugessen J.'s attention before he made his Pre-Trial Order of March 26, 2004.

[71] So there was new factors for the Court to consider that had not been disclosed to Hugessen J. when he made his Pre-Trial Order of March 26, 2004.

[72] As for the issue of relevance to the pleadings, the Plaintiffs merely asserted that they had an absolute right to call whoever they wanted, and the Court could not interfere. This insistence was not modified in any way by an acknowledgement of the relevance issue, which the Crown had identified at the Trial Management Conference on September 17, 2004, and which the Plaintiffs and the Court knew the Crown intended to raise in a future motion.

[73] It was clear to the Court that the position of the Plaintiffs at the hearing of the motion was that their materials complied with the Pre-Trial Order and that they had an absolute right to call any witness they chose to call. The Court summed up the problems as follows:

...

47. The Plaintiffs have been given every opportunity to present their case in the way they consider appropriate. They have chosen, however, not to produce a true witness list or meaningful will says in accordance with a Court order that required them to do so by September 15, 2004. Instead, the Plaintiffs propose to take the Court and the other parties down a path that has no clear end in sight and that will lead to chaos at the trial. The Plaintiffs could have suggested ways to remedy the situation but they have chosen not to, and now raise "practical difficulties" that should have been raised and addressed long ago. They have, in effect, decided to put the whole conduct of the trial on the line. Under these circumstances, the rights of the other parties and the integrity of the litigation

process require the Court to act in a decisive manner before the whole process subsides into chaos.

...

[74] Also of note, and clear from the transcript of the motion hearing, is that when Russell J. attempted to find out if there were, perhaps, undisclosed problems that had prevented compliance, the Plaintiffs began to hint at "practical difficulties" they had experienced. For reasons given in the reasons, the Court did not find their explanations acceptable.

[75] So the Court was faced with a situation where the Plaintiffs argued strenuously for substantial compliance of their will-says with the Pre-Trial Order of Hugessen J. and then suggested that they had been experiencing practical difficulties.

[76] It is also of note that the Order made by the Court striking the materials produced by the Plaintiffs on September 15, 2004, and asking for a proposal for a "workable solution," was not appealed by the Plaintiffs. Nor did they allege apprehended bias. This is significant because the Plaintiffs now say that the Order and the reasons contain an apprehension of bias on the part of Russell J. and continue the pattern established by Hugessen J. of denying the Plaintiffs the right to call evidence on the topic of self-government.

[77] In November, 2004, the Plaintiffs came back to the Court with a motion dealing with the "workable solution" that the Court had asked for.

[78] The solution proposed by the Plaintiffs was as follows:

a) They would serve their will-say statements, in accordance with the standards Russell J. had set in his Order of October 18, 2004, on or before December 14, 2004;

b) If the Crown had any concerns with the will-says that were produced, the Crown should advise the Plaintiffs promptly;

c) The Plaintiffs would continue to serve will-says on the Interveners. Any concerns of the Interveners would be "considered" by the Plaintiffs but the Plaintiffs' response would depend upon the scope of intervention (something the Plaintiffs wished to challenge); and

d) If the Crown felt its concerns about the will-says were not addressed by the Plaintiffs, the Crown could seek a direction from the Court in writing.

[79] In order to understand the Court's response to this proposal, the following contextual matters are important:

a) The Plaintiffs' proposal did not address the issue of a witness list. When this was pointed out at the hearing, the Plaintiffs did agree that a witness list would be helpful and undertook to provide one if their proposal was accepted. However, without a witness list, and without any advice from the Plaintiffs on numbers, the Court was still left with the impression that the Plaintiffs intended to call approximately 150 witnesses;

b) The Plaintiffs had produced at the time of the hearing only 18 will-says out of a possible 140-150 and the Crown had indicated it intended to challenge some of the 18;

c) The Plaintiffs indicated that, although they thought they were high, they accepted the standards for the will-says Russell J. had set in his Order of October 18, 2004, and that they were willing to comply with those standards and, in fact, exceed them;

d) The Plaintiffs themselves identified December 14, 2004 as the date when they could produce their compliant will-says. This is important because the Plaintiffs now say this date was imposed upon them by the Court, or by pressures brought to bear by the Crown and the Interveners who wanted to overload them at a busy

time and that, as a result, they were not able to produce will-says for a significant amount of the evidence they wished to call on self-government;

e) The Plaintiffs made it clear to the Court that they wanted to go to trial on January 10, 2005 and did not suggest any change in the trial date to give the Crown additional time to review the extensive materials they intended to produce and to bring the Crown's motion on scope and relevance before the Court. This is also important because the Plaintiffs now say that the Court fell prey to the machinations of the Crown and the Interveners and used the January 10, 2005 date for the commencement of the trial as a way of ensuring that the Plaintiffs were kept under pressure at a time of crisis and were not given the time to prepare the evidence they needed for trial;

f) The Plaintiffs had been aware since at least the Trial Management Conference of September 17, 2004 that the Crown would be raising scope and relevance issues in relation to what the Plaintiffs had proposed to lead as evidence at the trial, as indicated in the non-compliant will-says of September 15, 2004;

g) It later became apparent that the Plaintiffs had begun interviewing witnesses after the September 15, 2004 date when their witness list and will-says should have been served, but this was not raised with, or communicated to, the Court.

[80] The gist of the Plaintiffs' proposal was that they would produce up to some 150 will-says by December 14, 2004, the trial would go ahead on January 10, 2005, and the Crown would have some 26 days (much of it the difficult Christmas season) to review the materials produced and raise any problems with the Court.

[81] The Court felt this was not a workable solution that took into account the reasonable interests of the other parties to the action. It was merely a proposal by the Plaintiffs to do by December 14, 2004, what they should have done by September 15, 2004, combined with a suggestion that the scope and relevancy issues raised by the Crown could be dealt with by the Court in some vague kind of way (but only after consulting with the Plaintiffs). There was no mention of the motion the Crown intended to bring before January 10, 2005, or how it could be accommodated in the time-frame proposed by the Plaintiffs.

[82] This looked to the Court like an attempt by the Plaintiffs to profit from their own breach of Hugessen J.'s Pre-Trial Order, and the Court said so in no uncertain terms.

[83] The Crown took the position with the Court that, because the Plaintiffs had clearly not come up with a "workable solution", the Court should deny the motion and move forward to trial on the basis of the relevant portions of the record of the first trial and other materials filed to date.

[84] Once again, however, the Court rejected such a draconian approach and decided to impose a scheme that would allow the Plaintiffs to produce their will-says by December 14, 2004 (the date they had asked for) and then to put in place an orderly schedule to allow the Court to hear the Crown's concerns about scope and relevance.

[85] The Court's decision of November 25, 2004, is such a key document in the Plaintiffs' argument that it will be helpful to reproduce the reasons and the order in full:

I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will say statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before trial. The parties hold widely divergent views as to what this trial should deal with and, in light of the large number of witnesses the Plaintiffs have indicated they intend to call, the Crown and the Interveners have justifiable concerns about the barrage of further evidence and what it means for the conduct and duration of the trial. Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice. I have taken careful note of Mr. Justice Hugessen's words in his order of March 6, 2002 that he was "driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves even when case managed." This motion and the reasons for it are ample proof that nothing has changed in this respect. Because the Plaintiffs have not yet produced a new witness list, and because at the time of the motion hearing they have only put forward 18 will say statements out of a possible 140 - 150 (some of them obviously highly controversial), the Court is in no position to assess what the situation will look like once the Plaintiffs have delivered the full quota. I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.

My concern at this stage remains fairness to all parties to the extent of their respective interests. My review of the Plaintiffs proposal suggests to me that its essence is that witness lists and will says that should have been served on or before September 15, 2004 will now be served on or before December 14, 2004. The trial should still commence on January 10, 2005, so that the Crown and the Interveners will have a fairly short time period (and one that includes the Christmas season) to review the material, prepare for trial and complete any challenges they may wish to make. The Plaintiffs will thus secure a three-month extension with no real compensatory concessions to the other side to deal with the consequences of the

Plaintiffs' default. If Mr. Justice Hugessen ordered the serving of witness lists and will says four months before the trial, I am sure that, with his knowledge of this action and his obvious concerns about the conduct of the parties, he had good reason for doing so. And when he made his order of March 26, 2004, it must also be kept in mind that he did not know that the Plaintiffs intended to call approximately 140 to 150 witnesses to supplement the voluminous record that already exists on the issues in this dispute. It would be sheer folly for the Court to now jettison Mr. Justice Hugessen's wisdom, as embodied in his order, and to go forward on the basis of the Plaintiffs' proposal.

Viewed against the framework of Mr. Justice Hugessen's Pre-Trial Order, the Plaintiffs' proposal looks to me like an exercise in rank opportunism that is dismissive of the rights of other parties and the procedures that Mr. Justice Hugessen forged to deal with the exigencies of this action.

To accept the Plaintiffs' proposal would be to accept and condone their taking an additional three months to produce a witness list and will say statements without much in the way of an explanation, other than repeated complaints that they are very busy. The Court might have been more convinced by their inadequate excuses if they had come forward to discuss the problems before default occurred, and if they had raised and explored with Mr. Justice Hugessen why it was necessary to call in excess of 140 witnesses for a re-trial of issues for which there is already an extensive record. The Plaintiffs say they need "many voices" to make their case, but until the witnesses are finally identified and the will say statements are produced, there is no way for anyone to judge whether their purpose is genuine or obstructive, or what implications this might have for trial preparation and the conduct of the trial itself.

In the end, the Court is faced with a difficult choice in this motion. To allow the Plaintiffs to proceed as they suggest would be to allow them to profit from their non-compliance with Mr. Justice Hugessen's Pre-Trial Order at the possible expense of the rights of other parties and disastrous consequences for the conduct of the trial. The Plaintiffs' proposal is not a "workable solution" to the problems caused by their default. The Plaintiffs have indicated that, although they think the standards set for the will says in my order of October 18, 2004 are high, they accept them and are willing to comply with them. But the pre-trial record is far from complete and the trial schedule and trial process remain impossible to chart and anticipate in any meaningful way.

At the same time, 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. Any interference by the Court at this stage would, under normal circumstances, be unnecessary.

But as the history of this action has proved on several occasions, leaving the parties to follow normal procedures results in total inertia or administrative chaos. The parties - in this case the Plaintiffs - simply cannot be trusted to conduct this litigation themselves.

Reluctantly, then, I have come to the conclusion that it would be derelict of this Court to allow the parties to go to trial until the Plaintiffs' witnesses have been fully disclosed, adequate will say statements have been produced, the Crown and the Interveners have been given a reasonable opportunity to review the witness list and the will says, and the Court itself is satisfied that the barrage of witnesses (revealed for the first time on September 15, 2004 and apparently not raised with Mr. Justice Hugessen) is a legitimate exercise by the Plaintiffs of their litigation rights.

The stark alternative would be to simply deny this motion and move forward to trial on the basis of the relevant portions of the record of the first trial and the other materials filed to date. The reason I am rejecting such a draconian approach at this time (although I do not rule out that it may yet be necessary) is that this action has repeatedly required Court intervention to move forward. This has, unfortunately, resulted in a culture of dependancy and non-cooperation. The Court has been forced repeatedly to revert to its general powers and obligations under Rule 3 of the Federal Court Rules, 1998 to ensure the most just, expeditious and least expensive determination of every proceeding on its merits. I believe it would be unrealistic and foolish for the Court to now retreat and expect the parties to somehow miraculously change and manage the progress towards trial in the normal manner.

In view of the belated disclosure that the Plaintiffs intend to call in excess of 140 witnesses at trial, their breach of Mr. Justice Hugessen's Pre-Trial Order, and their failure to provide a workable solution to the problems caused by that breach, the Court is no longer willing to accept on trust that the Plaintiffs require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues.

ORDER

1. The Plaintiffs' motion is denied. However, on or before December 14, 2004, the Plaintiffs will serve the Crown and the Interveners with their witness lists and will say statements in a form that complies with Mr. Justice Hugessen's Pre-Trial Order of March 26, 2004, as that order has been further interpreted by this Court, together with a schedule indicating the sequence and the duration for calling their witnesses at trial;

2. On or before December 21, 2004, the Plaintiffs will file with the Court and serve upon the Crown and the Interveners a brief but adequate explanation as to why each of the witnesses disclosed on their witness list is a necessary and material witness, having regard to the following:

(a) the issues of this claim as addressed in the recently amended pleadings;

(b) the fact that this is a re-trial and there is an extensive record of evidence available from the first trial on many of the same issues - including oral history evidence - and evidence at the second trial should not duplicate evidence already given and available;

(c) the fact that the parties are able to read-in evidence from the first trial as well as any additional evidence obtained from further discovery following the order for a re-trial;

(d) paragraph 2 of the order of Mr. Justice Hugessen made December 8, 2000, directs that "no person who testified at the first trial should 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 the person at trial";

3. If the Crown takes objection to the witness lists and will say statements produced by the Plaintiffs in accordance with paragraphs 1 and 2 above, it will bring any such objections and its suggestions for dealing with them to the attention of the Court by way of motion on or before January 8, 2005 or will inform the Court by that date (and sooner if possible) that it has no objections;

4. The Plaintiffs shall have until January 14, 2005 to serve and file responding materials for any such motion as may be brought by the Crown;

5. The date for the hearing of the motion shall be set by the Court after consultation with the parties and shall take place as soon as possible in January 2005;

6. At the hearing of the motion, the Court will hear representations from the Crown, the Plaintiffs and the Interveners and decide if any of the witnesses proposed by the Plaintiffs should be called at the re-trial and any other related matter;

7. The scope of the participation of the Interveners in the motion shall be in accordance with the practice followed to date unless the Court has by that time issued a separate order limiting the participation of the Interveners in any such motion;

8. The commencement of the trial shall be adjourned from the January 10, 2005 date set by Mr. Justice Hugessen to a new date to be set by the Court following the resolution of the matters referred to in this Order and any further representation from the parties concerning required preparation time following the motion and any decision made concerning the motion. The parties should anticipate that any such adjournment period will be relatively brief and they should vigorously continue their preparation for trial accordingly;

9. The written statement deadline of December 15, 2004 shall be extended to allow the parties time to respond to the outcome of the motion and a new deadline date will be set by the Court after hearing representations from the parties on this issue;

10. Any party may address the Court on the matter of costs for this motion.

[86] Important contextual matters to note about this decision are as follows:

a) The Court clearly has in mind that it must somehow deal with both the will-say situation and the relevancy issues;

b) The Court makes it clear that criticism of the Plaintiffs' will-says will be left to any future challenge the Crown might bring, and the Court refuses to look at those issues beforetime;

c) The Court rejects the Crown's request to merely proceed to trial on the old record;

d) The Court does not accept the timetable proposed by the Crown, but gives the Plaintiffs a week of additional time after they have produced their will-says to indicate why their witnesses are needed;

e) The date for hearing the Crown's motion is left for consultation between the Court and the parties so that any timing concerns can be discussed;

f) The Court itself adjourns the trial date and says that a new date will be set "following resolution of the matters referred to in this order and any further representations from the parties concerning required preparation time following the motion and any decision made concerning the motion."

[87] The Plaintiffs have appealed the Court's Order of November 25, 2004 on the following grounds:

1. The learned trial judge erred in his interpretation of the will say and witness list requirement contained in the Pre-Trial Order;

2. The learned trial judge erred in requiring the Plaintiffs to identify before trial how all of the evidence which they intend to call at trial is material as a condition for the calling of that evidence at trial;

3. The Order under appeal constitutes unnecessary and improper judicial interference with the Plaintiffs' right to present their case to the Court as they deem appropriate and the jurisprudence confirming that right;

4. The Reasons of the Court of October 18, 2004 and November 25, 2004, and particularly the response of the Court to the Plaintiffs' positions demonstrate a reasonable apprehension of bias;

5. The learned trial judge has established a procedure which is unnecessarily onerous, unworkable, and unfair; and

6. The workable solution proposed by Russell J. is unworkable. The time constraints imposed by His Lordship result in prejudice to the Plaintiffs.

[88] The Plaintiffs now take the position that the Court postponed the trial date in its Order of November 25, 2004 purely to assist the Crown to bring its motion while, at the same time,

forcing the Plaintiffs to produce their witness list and will-says on or before December 14, 2004 in the knowledge that this was not feasible.

[89] While the events outlined above provide a basic framework for this motion, there are other more peripheral matters raised by the Plaintiffs that come into play and that need to be mentioned.

[90] Legal counsel and the Court have been conferencing fairly regularly since Russell J. was appointed as trial judge, and other motions have either been placed before the Court or are pending and are awaiting the outcome of this motion.

[91] Of particular note is a motion heard November 18 and 19, 2004 that dealt with the role of the Interveners at trial.

[92] Although the motion was brought by an Intervener, most of the time was taken up at the hearing by the Plaintiffs who made extensive submissions and tried to persuade the Court that the Interveners were, in fact, trying to mislead the Court and were creating mischief.

[93] There was evidence before the Court that the Plaintiffs had opposed - indeed had attempted to eliminate - any real participation by the Interveners on several previous occasions

and that, to a significant extent, the role of the Interveners in these proceedings had been dealt with in previous Court orders and was res judicata.

[94] The Court rejected the Plaintiffs' arguments and admonished Mr. Healey, Plaintiffs' counsel, for ad hominem remarks he had made concerning the conduct of counsel for the Interveners.

[95] The Court did not, however, reject entirely the concerns of the Plaintiffs and, in its reasons of December 6, 2004, had the following to say:

The Court is most anxious to avoid duplication, any widening of the lis, issue poaching and unnecessary prolixity at trial, or indeed at any time. It is gratifying to know that these are also matters of concern to the Plaintiffs. But all this motion by the Interveners is intended to do is establish the general framework for their participation at trial. In granting such general rights of participation the Court does not intend to forget that the Interveners are not parties and that their purpose is to assist the Court by articulating perspectives that are not subsumed, or adequately addressed, by the Plaintiffs and the Crown.

In any situation at trial the Interveners will have to show how they are assisting the Court, and what their intervention, whether by way of cross-examination or otherwise, can usefully add. In my view, the key to Intervener participation lies less in the general range of rights they are given (which should be broad enough to allow them to assist the Court as and when that may be appropriate) than it does in ensuring that those rights are exercised at trial in a manner that is commensurate with their limited status as Interveners, and that does not lengthen or broaden the proceeding beyond the issues defined in the pleadings.

[96] The Plaintiffs also appealed this Order. They did not, however, allege that Russell J.'s hearing of the motion or his decision gave rise to a reasonable apprehension of bias. This is significant because, as part of the present motion, the Plaintiffs allege that an apprehension of bias can be found in the December 6, 2004 Order, and that it fits with the cumulative pattern of apprehended bias that can be traced back through the orders of Russell J. and Hugessen J..

[97] The first mention of an apprehension of bias was made by the Plaintiffs in their appeal from Russell J.'s Order of November 25, 2004. Their Notice of Appeal was filed on December 6, 2004, but was not served on the Crown until December 16, 2004.

[98] It was not until January 7, 2005, however, in a conference call involving all counsel that the Plaintiffs revealed their intention to bring a recusal motion against Russell J..

[99] Several other significant matters are material for this motion. Of note is a de bene esse hearing held in Calgary on December 13, 2004 to receive the evidence of Ms. Florence Peshee, a witness for NSIAA, one of the Interveners.

[100] Also, once the Court became aware that the Plaintiffs intended to bring a recusal motion, the Court raised with all counsel whether the proceedings should continue before that motion was heard. There were several other significant motions both pending and anticipated at the time, including the Crown's motion concerning scope and relevance issues as they related to the Plaintiffs' will-say statements.

[101] Counsel for the Crown and the Interveners were firmly of the view that the Court should not continue with the proceedings until the recusal motion had been considered. This position

was endorsed by Mr. Shibley, counsel for the Plaintiffs at the hearing of this motion, who indicated that he felt the Court was correct to handle the recusal motion in the way it did.

[102] What is significant is that, on January 7, 2005, when Mr. Healey and Ms. Twinn first made it known to the Court and opposing counsel that they intended to bring a recusal motion, they urged the Court not to delay hearing other motions, or even the trial. Even at a later meeting of January 14, 2005, Mr. Healey was of the same view. At both of these meetings, representatives of their clients were present.

[103] This is important because, knowing that they were about to bring a motion that would contain allegations of actual bias, as well as apprehended bias, Mr. Healey and Ms. Twinn were, in front of their clients, not only willing to proceed, but clearly of the view that matters should go forward and that decisions should be made by a trial judge they would say they did not trust and in a Court where, they would allege, they were apprehensive about receiving a fair trial.

[104] There were several extensions allowed to the Plaintiffs so that they could prepare and file their materials for this motion. In addition, all other deadlines were suspended so that they could concentrate on the task in hand. The Crown and the Interveners also needed time to cross-examine witnesses and file their materials. As a result, the motion was not heard until March 29 to April 1, 2005.

[105] This synopsis of what has led to the present motion shows that what the Court is asked to deal with is confined to a fairly narrow range of procedural matters related to the pre-trial period. The only trial evidence the Court has heard occurred at the de bene esse in Calgary on December 13, 2004, and the Plaintiffs say they are happy with the outcome of that hearing. So this motion does not involve a courtroom situation where the trial judge has heard a significant amount of evidence and has made credibility findings. The encounters have taken place between the Court and experienced counsel.

THE PRESENT IMPASSE

[106] As the foregoing outline reveals, the present motion has been brought at a time when there is a significant disagreement between the Plaintiffs and the Crown over the scope of the pleadings and the relevance of an extensive body of evidence that the Plaintiffs propose to call at trial. This disagreement is inextricably connected with the will-say issue and the whole conduct of the trial.

[107] This motion has been brought before the Court has had an opportunity to hear and adjudicate upon the issues raised in the Crown's pending motion concerning scope and relevance, and the will-says produced by the Plaintiffs.

[108] There is no doubt that the Plaintiffs are aware of this because the record shows that Mr. Healey, counsel for the Plaintiffs, at the January 7, 2005 conference meeting confirmed with the Court his understanding that the Crown's motion would address the scope and relevance concerns of the Crown.

[109] Notwithstanding the fact that the Court has not yet had the opportunity to examine and deal with these matters, the Plaintiffs have alleged apprehended bias, and have incorporated actual bias allegations into their materials for this motion.

[110] The record shows that the Plaintiffs have consistently attempted to discourage the Court from hearing the Crown motion. As their proposal for a "workable solution" to their breach of the March 26, 2004 Pre-Trial Order shows, the Plaintiffs did not object to the will-say standards imposed by Russell J.. They said they could meet those standards and exceed them. What they objected to, and attempted to prevent, was a full consideration of the Crown's scope and relevancy concerns and a determination by the Court as to what the pleadings encompass in terms of self-government. Hence, it is worth considering at this stage whether the Crown's points about the scope of the pleadings and the self-government issue have any real substance, or whether the pending Crown motion is merely obstructive or frivolous.

[111] The Crown has placed before the Court not only the pleadings themselves but also evidence of representations made by the Plaintiffs when, in September 1998, the Plaintiffs sought leave to amend their pleadings before Hugessen J..

[112] The following is what the Plaintiffs' counsel put before the Court at that time. It has already been quoted, but I reproduce it here for convenience. In their written submissions the Plaintiffs said:

This is an action in which the plaintiffs seek a declaration of certain provisions added to the Indian Act in 1985 ("Bill C-32") granting membership rights in the plaintiffs Bands, are inconsistent with the provisions of section 35 of the Constitution Act, 1982, in that they interfere with the aboriginal and treaty rights of those Bands to determine their own memberships. ...

The right to determine membership is a core right and even an essential element of any self-government claim.

[113] And, at the 1998 motion hearing, counsel for the Plaintiffs said:

...In fact, we are alleging, in my submissions the narrowest possible formulation of a jurisdictional right. We are saying, as a government, we have the right to determine who our citizens are.

...

In fact, the original action and the new action are not inconsistent. The new pleading is simply an explication based on the old one. [emphasis added]

[114] The Crown has also pointed out that, following the 1998 amendments, the Plaintiffs have continued to make statements that are consistent with a narrow approach to the self-government issue:

Affidavit of Clara Midbo sworn October 18, 1999 at, para. 3

Plaintiffs' Motion Record in response to Crown's Injunction Application, March 14, 2003, at para. 21

Transcript of November 19, 2004 hearing, at 24:10-25:10; 26:6-27:16

Sawridge Band v. Canada, [2004] F.C.J. No. 77 (F.C.A.) at para. 5.

[115] These statements should be compared with the following expansive approach contained in paragraph 17 of the Plaintiffs' Memorandum of Argument for this motion:

...

17. The Plaintiffs view this case as perhaps the most significant Indian rights case brought to the Court. The Plaintiffs are seeking, inter alia, section 35(1) recognition of their self-government right as contemplated by the Supreme Court in Mitchell. The right, if recognized, will, it is submitted, change the framework of the Canadian federation by creating a three cornered relationship between the federal government, provincial governments and aboriginal governments.

[116] As the Court indicated in the reasons of Russell J. of November 25, 2004, the Court has no intention of deciding the issues raised in the Crown motion until it has heard full argument from counsel. However, as the above passages show, the dispute over scope and relevancy is not something the Court can merely ignore at this time on the grounds that the Crown has no real

reason to raise such matters with the Court. The Crown's objections do not appear to be frivolous or obstructive

[117] In fact, the consequences of ignoring the dispute, and proceeding with the trial in the way the Plaintiffs would like to proceed, are enormous in terms of time and resources for all parties involved, as well as the Court.

[118] The Plaintiffs have already put the Court on notice that many of the witnesses they intend to call are elderly and do not speak English, and that the Plaintiffs will be asking the Court to hear evidence in locations outside of a regular courtroom. Given the translation and technical problems that this will involve, whether the Court can accommodate any such request is not known at the present time and cannot be decided until the Plaintiffs provide details of what they have in mind.

[119] The Plaintiffs have repeatedly insisted that they have a right to call any and all of the witnesses they have identified and that the Court cannot interfere at this pre-trial stage. However, if the Plaintiffs' approach is adopted, a great many people could be put to significant trouble and cost before the Plaintiffs have any indication from the Court as to what the Court believes the pleadings encompass in terms of the self-government issue. What the Plaintiffs appear to want is for the Court to hear all evidence they wish to adduce and then decide relevance at the end of the trial. But this cannot be the most just, expeditious and least expensive way to

determine these proceedings on the merits, particularly where it is obvious that the Plaintiffs wish to call a vast body of evidence on an issue (self-government at large) that may not be encompassed by the pleadings. The Plaintiffs' rights to adduce evidence are limited by the Pleadings and rules of evidence, as are the Crown's. They are also limited by specific court orders in this case governing the use of evidence from the first trial.

[120] In addition, the approach advocated by Mr. Healey and Ms. Twinn hardly accords with Mr. Henderson's (also counsel for the Plaintiffs) advice to the Court at the Pre-Trial Conference of September 17, 2004, on how to deal with contentious relevancy issues prior to the trial:

THE COURT: My feeling, if there are going to be big arguments like that on relevancy, it is something we should confront well in advance, rather than at trial.

MR. HENDERSON: Absolutely.

(Transcript of Pre-Trial Conference, September 17, 2004, 14: 11-15)

[121] Also, in terms of context, and to place this motion in perspective, it is worth considering what the consequences would be if the Court were to grant the relief requested by the Plaintiffs.

[122] At its narrowest, if Russell J. were to recuse himself, it would take the proceedings back to, at least, the Pre-Trial Order of Hugessen J. of March 26, 2004. That would mean that the parties would still have to face the scope and relevancy issues raised by the Crown, and the Plaintiffs would be free to argue anew such matters as amendments to pleadings, will-say statements and the role of Interveners at trial.

[123] At its broadest, (the Plaintiffs allege a reasonable apprehension of bias on the part of Hugessen J. and the Federal Court) the relief could mean that these proceedings would revert to the status they had following the decision of the Federal Court of Appeal in 1997. In other words, everything would be wide open and the parties would have to begin again the tortuous path of confronting pleadings, evidence, discoveries, and, indeed, everything that has transpired since 1997.

[124] These consequences should not matter if a reasonable apprehension of bias exists, but they do suggest that extreme caution should be used by the Court before committing all parties involved in this dispute to such a devastating result.

THE PLAINTIFFS' MATERIALS

[125] The Court has serious concerns about the core materials compiled by Ms. Twinn and Mr. Healey, Plaintiffs' counsel, for this motion. The Court raised those concerns with Mr. Shibley, who argued the motion for the Plaintiffs at the hearing in Edmonton. The basic problem is that the Plaintiffs provide no objective, reliable evidence in their materials that the Court can use to assess the very serious accusations made in this motion. Their evidence, for the most, is little more than subjective opinion, often based upon false assumptions and inaccurate information about the state of the proceedings to date. It is self-referential. At bottom, it is nothing more

than legal counsel arguing with the Court, and supplying opinion-based affidavits to back up that argument.

[126] The Court has no real independent evidence it can rely upon, except what the Court can find for itself in the Court record.

[127] The Court's unease was deepened when Ms. Eberts, counsel for the Native Women's Association of Canada, took the Court through the structural convolutions of the Plaintiffs' materials in considerable detail and pointed out the conflation of evidence and argument and the resulting confusion. The cross-referencing between affidavits, and between affidavits and the Memorandum of Argument and other materials, is such that it is difficult to tell who is opining to what and where evidence ends and argument begins.

[128] These concerns are not merely of a technical nature. The core of the Plaintiffs' case is contained in the affidavits filed and in their written argument. Those materials were compiled by Ms. Twinn and Mr. Healey and those who they supervise.

[129] Ms. Twinn is a member of one of the Plaintiff bands. She is the solicitor of record for these proceedings. She is a witness in this motion. And, she is one of the lawyers responsible for the written argument.

[130] Mr. Healey is the lead counsel for the proceedings. He is the principal witness and architect of this motion. He, together with Ms. Twinn, has compiled the written argument that is before the Court. And Mr. Healey's conduct and the Court's response to that conduct constitutes a considerable aspect of what this whole motion is about.

[131] When considering the consequences of granting the relief requested, these are matters that the Court cannot ignore as merely technical. There are reasons why lawyers should not both give evidence and provide argument based on that evidence, and the inevitable problems are more than apparent in the materials filed by the Plaintiffs in this motion: evidence and argument are merged; necessary context is left out; interpretations are skewed and highly subjective. Often, the evidence presented in this motion is little more than the subjective states of mind of Ms. Twinn and Mr. Healey. This is not a satisfactory basis for the Court to use when considering a motion for apprehended bias.

[132] Nor are these concerns remedied by having Mr. Shibley conduct the oral argument at the hearing. Mr. Shibley graciously conceded that Ms. Twinn and Mr. Healey had compiled the written argument, that he does not have a knowledge of the full record, and that he was highly dependent upon Mr. Healey and Ms. Twinn for what he presented to the Court. Mr. Shibley adapted and endorsed their written argument (with several important exceptions which I will come to later), even though his oral argument was a masterful attempt to avoid its excesses and distortions. In effect, Ms. Twinn and Mr. Healey are the ones who have composed the argument

and Mr. Shibley has tried to organize it better and to assist the Court in understanding its difficulties. Mr. Shibley has not reviewed the record afresh or presented his own objective appraisal to the Court. He has merely tried to make the argument of Mr. Healey and Ms. Twinn, which is backed by their own affidavits, more presentable.

[133] When the Court put these concerns to Mr. Shibley, he advised that the important thing is the Court record, and that I should concentrate on that. While I agree with him that the Court must examine the Court's decisions and transcripts carefully, I do not think the problem ends there.

[134] The onus is on the Plaintiffs to prove a reasonable apprehension of bias before the Court. A significant part of the Plaintiffs' argument/evidence is a highly subjective, selective interpretation on the part of Ms. Twinn and Mr. Healey, who are wearing far too many hats in this motion for the Court's comfort. What is more, even the lay witnesses brought forward by the Plaintiffs are totally dependent upon Ms. Twinn and Mr. Healey for their interpretations of the effects of Court orders and Court actions, and have signed affidavits that were prepared for them by Mr. Healey and/or Ms. Twinn and/or someone working under their direction.

[135] Mr. Shibley has cautioned the Court against relying upon "technical" matters, rather than addressing the real issues in dispute in this motion. In my view, however, reliable evidence and

objective argument are not merely technical matters. They are the very life blood of the Court, and the only basis upon which it can make decisions.

[136] The fact is that, in accordance with Rule 82, of the Federal Court Rules, 1998 a solicitor cannot, except with leave of the Court, both depose to an affidavit and present argument to the Court based on that affidavit. It is true that Mr. Shibley appeared to argue the case at the hearing, but in so doing he told the Court he was merely presenting the arguments of Ms. Twinn and Mr. Healey modified by his own style of presentation. He also adopted the Memorandum of Argument that was prepared by Ms. Twinn and Mr. Healey. In essence then, Ms. Twinn and Mr. Healey have provided argument for this motion based upon their own affidavits or upon affidavits of others that they prepared and that are almost totally about what Ms. Twinn and Mr. Healey have advised the affiants. In the present case, the Court's consent has never even been sought, let alone granted for what has been filed. I have in the past made it very clear to counsel for the Plaintiffs - indeed to all parties to these proceedings - that practises and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. In the Plaintiffs' motion to amend pleadings that came before me in June, 2004, Plaintiffs' counsel submitted an affidavit sworn by counsel, despite Hugessen J. having criticized such practice in the past. In my reasons of June 29, 2004, dealing with the proposed amendments, I gave the following direction at paragraphs 22 and 23:

The Band has sought leave of the Court to file its solicitor's affidavit. However, as the responses of both the Crown and NSIAA make abundantly clear, some of the Band's proposed amendments are highly contentious and, looked at objectively, I think Band counsel should have appreciated this.

In view of the history of this file, and the long road that lies ahead, I think it is best to make it clear to all parties that practices and procedures that do not accord with the Federal Court Rules, 1998 are not acceptable. Consequently, the affidavit of Counsel for the Band, in so far as it strays beyond mere housekeeping and non-contentious issues, is not acceptable and cannot be relied upon in the Band Motion.

[137] Consequently, I do not think the Plaintiffs can be too surprised by the Court's remaining consistent with this warning and refusing to accept the affidavits of Ms. Twinn and Mr. Healey and those portions of the written argument adopted as evidence and incorporated into their affidavits. The matters before the Court in the present motion are highly contentious and the affidavits of Ms. Twinn and Mr. Healey contain a great deal that is merely their own feelings and states of mind on conduct and procedural issues that involve them in a highly personal way. In my view, this is not an acceptable evidentiary base for a motion that seeks to show bias (apprehended or otherwise) on the part of specific judges and, possibly, the Federal Court. At the very least, the Court would have to say that this evidence must be treated as highly suspect and afforded little weight, even when the oral argument is made by Mr. Shibley.

[138] There is an irony in this problem that places the Court in a very difficult situation. This is a motion in which one of the allegations against the trial judge is that Russell J. has applied double standards in relation to materials produced by the Plaintiffs and materials produced by the Crown and the Interveners. The allegation is that Russell J. has favoured the Crown and the Interveners in this regard. However, in a motion where the effect of granting the full relief requested would be simply devastating on the rights of other parties, and upon the difficult work accomplished by all parties to date, the Court is somehow supposed to overlook the evidentiary

and procedural problems inherent in the Plaintiffs' materials and decide the issue by some other means.

[139] Of course, the Court cannot do that. The Court is impartial. It cannot just step in and rectify shortcomings in the Plaintiffs' presentation and conduct of this motion. It is the Plaintiffs' responsibility to prove a reasonable apprehension of bias, and it is the Plaintiffs' responsibility to provide the Court with the materials it needs to assess the extremely serious allegation they make in this motion.

[140] If the Court had ever suspended rules of evidence and procedure in favour of the Crown and the Interveners in a matter as important as the present motion, I have no doubt it would have been cited by the Plaintiffs as a clear instance of apprehended bias on the part of the Court.

[141] In my view then, the Court must regard the affidavits of Ms. Twinn and Mr. Healey and the evidence they incorporate from their Memorandum of Argument as inadmissible. In addition, to the extent that the lay witnesses merely recount opinions and facts provided to them by Ms. Twinn and Mr. Healey, their evidence is hearsay and opinion and inadmissible for that reason.

[142] However, even though the Court is obliged to point out these problems and to reach such a conclusion, no one (and I feel confident including the Crown and the Interveners in what I say)

wants this motion to be dismissed upon the basis of evidentiary and procedural issues alone. If the Court did this, the proceedings would continue to stagnate and the likelihood of progressing towards trial any time soon would significantly diminish. I believe that all parties are of the view that some kind of clearing of the air is required at this time.

[143] Hence, it is my intention to try and address Mr. Shibley's oral arguments, and the written arguments of Ms. Twinn and Mr. Healey as contained in the Plaintiffs' Memorandum of Argument, by direct reference to the Court record, bearing in mind, however, that those arguments are highly tainted by the problems I have referred to above. But what the Court is really doing here, in effect, is proceeding with its own examination of the record in the light of the Plaintiffs' professed concerns. The Court cannot say that the Plaintiffs have discharged the onus upon them that the law demands in a motion of this nature, and proceeding further with these reasons should not be taken as any indication that the Court accepts the written materials filed, or has chosen to overlook the evidentiary difficulties referred to above.

THE LAW

[144] The parties agree on the basic principles of law applicable to reasonable apprehension of bias. As is only to be expected, any disagreement comes in its application, with the Plaintiffs suggesting that far less is required to satisfy the basic test than do the Crown and the Interveners,

who say that a more robust approach is needed to ensure that our legal system does not succumb to the disappointments of disgruntled counsel and their clients.

[145] It seems to me that the competing needs of our legal system as regards the kind of motion that is presently before me were described very plainly and precisely by Mason J. in Re J.R.L. (1986), 161 C.L.R. 342 (H.C.), at paragraph 5, when he said:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they will have their case tried by someone thought to be more likely to decide in their favour.

[146] As the Plaintiffs point out, several reasonable apprehension of bias motions have been made in the Federal Court in recent years, and I think it is worthwhile to refer to some of those cases in the general discussion. Because there is no real disparity between the parties on basic principles, I am going to follow here the summary provided by the Crown for the leading cases and principles that relate to the motion that is before me.

[147] The test for reasonable apprehension of bias was set out in the case of Samson Indian Nation and Band v. Canada:

The genesis for the modern formulation of the test is contained in the dissenting judgment of de Grandpré J. in Committee for Justice and Liberty et al...:

...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through-conclude".

There is some question about the degree of knowledge which this reasonable person possesses. In Committee for Justice, de Grandpré J. referred to an "informed person" at page 394 as being the "reasonable" person.

Samson Indian Nation and Band v. Canada, [1998] 3 F.C. 3; [1997] F.C.J. No. 1652 (F.C.T.D.) (the "Samson Case") at paras. 19 and 20 (quoting from [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. national Energy Board et al., [1978] 1 S.C.R. 369, at 394)

[148] Although de Grandpré J.'s formulation of the test in the Committee for Justice case was given in dissent, the Supreme Court of Canada has consistently endorsed his articulation of the test, particularly in R. v. S. (R.D.):

The test for reasonable apprehension of bias is that set out by de Grandpré J. in [Committee for Justice]. Though he wrote dissenting reasons, de Grandpré J.'s articulation of the test for bias was adopted by the majority of the Court, and has been consistently endorsed by this Court in the intervening two decades.

R. v. R..D.S. (1997), 118 C.C.C. (3d) 353 per Iacobucci J., at paras. 31 and 111

[149] The objective, reasonable, informed, practical observer must arrive at his or her conclusion as to whether there is a reasonable apprehension of bias on a "more likely than not" basis, and must not apply a "very sensitive or scrupulous conscience". Justice Iacobucci confirms that there is a very high threshold that needs to be met for a finding of real or perceived bias:

The appellant submitted that the test requires a demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than a "mere suspicion". This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice, supra, at pp. 394 - 95:

I can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". ...

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise

such allegations. Yet, this is a serious step that should not be undertaken lightly. [emphasis added]

R. v. R.D.S., supra, at paras. 112 and 113

[150] The Federal Court of Appeal's reasons in these proceedings only dealt with one ground of appeal: that of a reasonable apprehension of bias on the part of Muldoon J. In finding such an apprehension, the Court made the following comments:

It is first important to underline that no actual bias has been alleged on the part of the trial judge, nor does this court find such bias.

It should also be observed that, when faced with an appeal based in part on reasonable apprehension of bias in the trial judge, an appellate court must approach such assertions with caution. It is not uncommon for unsuccessful litigants, in reflecting on their loss, to attribute it to bias or an appearance of bias on the part of a trial judge. An appeal court, without very good justification, must not use the route of apprehended bias to nullify decisions of a trial judge which it could not otherwise review. A wide margin of discretion must be left to a trial judge in the conduct of a case, and his procedural decisions should not be interfered with unless there is a clear error of principle... [emphasis added]

Sawridge Band v. Canada, [1997] 3 F.C. 580, at paras. 11 and 12

[151] It is also important to keep in mind that the Plaintiffs bear the onus of demonstrating bias and that such a determination depends entirely on the facts of the case.

The onus of demonstrating bias lies with the person who is alleging its existence... Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.

R. v. R.D.S., supra, per Iacobucci J., at para. 114

Thus, determining whether apprehended bias exists is wholly fact-driven. Each case is fact specific and generalities about what constitutes bias drawn from any particular case should not automatically be applied to the facts of the particular case under review.

Woods v. Canada (Attorney General), [2005] M.J. 31 (M.C.A.)

[152] In Middelkamp v. Fraser Valley Real Estate Board, Southin J.A. has a few important things to say concerning counsel's over-sensitivity to judicial remarks about their presentations, and points out several categories of behaviour by judges which do not constitute a reasonable apprehension of bias:

As to the question of bias, Mr. Rankin pointed to in his opening and has reiterated in his reply many remarks which have been made by the learned trial judge over the course of these 60 days which some might think were rather sharper than they ought to have been. That is a matter of perhaps one would say taste. Some judges by nature are silent; some of us talk perhaps more than we should. Whether some one or all of these remarks might better not have been said I do not propose to discuss. Every experienced counsel has from time to time felt herself unfairly treated by receiving a lashing from the sharp edge of the tongue of a judge. I remember the feeling myself.

As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor dies it mean an obvious lack of respect for another counsel, if that counsel displays in the judge's mind a lack of professionalism.

The relationship between bench and bar is sometimes difficult. If the system is to work, there must be restraint on both sides and also an understanding by the bar of the judicial process. The judges rarely come to anything with a closed mind.

Middelkamp v. Fraser Real Estate Board, [1993] B.C.J. No. 1846, at paras. 10-12

These points are helpful for the present motion where the Plaintiffs allege remarks directed by Hugessen J. and Russell J. at Plaintiffs' counsel give rise to a reasonable apprehension of bias.

[153] For the reasons stated by Veit J. in Broda v. Broda, it is vitally important that the judge who faces an allegation of reasonable apprehension of bias not yield to temptation and "take the easy way out" by recusal:

It would be natural for members of the public to think that, whenever an allegation of bias is made against a judge, that judge should step aside. The Court of Queen's Bench of Alberta has many judges at its disposal, and it would appear to be easy to replace any one judge with another. When a motion for recusal is made, the question then might arise: Why does a judge even have to think about it, why not just disqualify herself? The concern of every judge against whom an allegation of bias is made is reflected in the words of McEachern, C.J.B.C. in G.W.L. Properties...:

A reasonable apprehension of bias will not usually arise unless there are legal grounds upon which a judge should be disqualified. It is not quite as simple as that because care must always be taken to insure that there is no appearance of unfairness. That, however, does not permit the court to yield to every angry objection that is voiced about the conduct of litigation. We hear so much angry objection these days that we must be careful to ensure that important rights are not sacrificed merely to satisfy the anxiety of those who seek to have their own way at any cost or price.

Broda v. Broda, [2000] A.J. No. 1542 at para. 23, (quoting from G.W.L. Properties v. W.R. Grace & Company of Canada Ltd., [1992] B.C.J. 2828 (B.C.C.A.)

[154] In dismissing an appeal from Teitelbaum J.'s decision not to recuse himself in the Samson case, Issac J. stated:

Despite the unduly and unnecessarily prolix, repetitive and ingenious submissions made by counsel for the appellants, we are all of the view that the appeals are devoid of any merit whatsoever and we will dismiss them summarily. ...

Secondly, we conclude that there is no clear or concrete evidence of a reasonable apprehension of bias on the part of Teitelbaum J. We are of the view that the appellants' contentions on this issue amount, at best, to mere speculations based on innuendos, surmises, suppositions and unfair characterizations of statements and events.

In our view, what the appellants seek in these appeals is the removal of Teitelbaum J. as Trial Judge and his replacement by a judge of their own preference to preside over what are admittedly two important trials. This approach to the selection of a Trial Judge is foreign to the practice of this Court. We do not wish to encourage it in any way.

Samson Indian Band v. Canada, [1998] F.C.J. No. 688 at paras. 8, 10 and 11

[155] I believe the foregoing to be a correct, general statement of the law that provides the appropriate emphasis for the facts and arguments before me in this motion.

[156] But I would also like to emphasize and expand upon two points that Ms. Eberts identifies in her written brief. First of all, I believe our legal system depends upon the assumption that judges must be presumed to be impartial. This does not mean that counsel should be intimidated or chary of challenging decisions or judicial conduct where the circumstances warrant it. Our system presumes judges to be impartial, but it also depends upon forthright and intrepid counsel to raise the alarm when they think an apprehension of unfairness has entered the process. Much depends upon the sound judgment and good faith of counsel. There are checks and balances that should ensure applications are only brought in appropriate circumstances. However, if the Court feels the allegations are not appropriate, it must be equally forthright in identifying what it sees as any abuse, bad faith, or irresponsibility on the part of counsel. The respective duties of judge and counsel demand plain speaking on what can be somewhat delicate issues. But, in my view, the fairness and integrity of our judicial system demands that appearance of bias applications not be handled with coyness. They strike at the heart of the administration of justice and undermine public confidence in the impartiality and integrity of the judiciary. Allegations are easy to make and difficult to repel. They must be dealt with openly and firmly.

[157] Secondly, I do not believe it can be emphasized too much that the inquiry to which a reasonable apprehension of bias allegation gives rise must be highly fact-specific. The complete context of each situation, and the particular circumstances are of the utmost importance. This is why, in my view, the Court must be wary of taking a result in one case and assuming, because it might seem to address a particular point, that it can be useful in dealing with an entire

application: facts are infinitely variable; the mix needs to be reviewed carefully; and the record must be considered in its entirely to determine the cumulative effect of any alleged transgression or impropriety.

[158] Ms. Eberts has emphasized these factors in her submission and I believe they are absolutely crucial for the outcome of this motion.

[159] With these guiding principles in mind, I will now address the Plaintiffs' submissions.

THE PLAINTIFFS' ORAL ARGUMENT

[160] The Plaintiffs' oral argument was very different in tone and emphasis from the Plaintiffs' written argument. Mr. Shibley was most helpful to the Court because he brought a fresh appraisal to the present impasse and he made a strenuous effort to distill the essence of the Plaintiffs' concerns and to extrapolate them from the convoluted excesses of their written materials.

[161] However, notwithstanding these attempts at clarification, there were several ways in which the oral argument mimicked the approach apparent in the Plaintiffs' written brief: it did not review the whole context or the complete record, and it made highly selective and partial use of some items in the record, while neglecting to mention other material facts entirely. This was

because, in the end, the oral argument was completely dependant upon the written argument for its authority and points of reference.

[162] In an application where context is everything, such an approach is of limited use to the Court. As I mentioned earlier, Mr. Shibley was exemplary in his forthright disclosure that he did not know the whole record and was dependent upon Ms. Twinn and Mr. Healey to guide him.

[163] The onus is on the Plaintiffs to prove a reasonable apprehension of bias. If they choose not to deal with the whole context, then they will have a very difficult time convincing the Court that they have satisfied the jurisprudence and met the reasonable person test.

[164] There are two major thrusts to Mr. Shibley's oral argument. He first of all seeks to convince the Court that the way these proceedings have been handled since 1997, when the Federal Court of Appeal found a reasonable apprehension of bias on the part of Muldoon J., shows a pre-disposition within the Federal Court on the part of those judges who have been involved with the re-trial proceedings to date to favour a partial interpretation of the pleadings, to push the trial in a direction that will not allow the Plaintiffs to make their case for self-government, and to deny the Plaintiffs the right to call evidence they wish to call to support their view of the pleadings.

[165] Secondly, Mr. Shibley refers to a series of orders, reasons, and conference comments made by Russell J. since he was appointed trial judge to try and show the Court that Russell J. appears to have become contaminated by the attitudes of his predecessors, or at least that a reasonable person would think so.

Apprehension of bias in the Federal Court - Fundamentals

[166] Mr. Shibley clearly identifies a fundamental right of the Plaintiffs that he believes has been neglected and thwarted by the Court:

[T]he plaintiffs have a right to plead the material facts upon which they seek a remedy. That's fundamental. They have that right, and they have the right to prove in evidence and have available to them all relevant evidence to support their pleadings.

(Transcript of Hearing, page 23: 8 - 14)

[167] As far as the Court is aware, no party to this dispute has ever taken issue with this statement or the views it expresses. I will mention later where the Plaintiffs say they have been denied this right. But I agree with the general statement. What Mr. Shibley leaves out of account are crucial issues of fact and context.

[168] The important words in the statement are "all relevant evidence to support their pleading."

[169] Since the appointment of Russell J. as trial judge, it has been obvious that there is a dispute between the Crown and the Plaintiffs as to what the Plaintiffs' "pleading" actually encompasses and, hence, what evidence is "relevant" to that pleading or the remedy the Plaintiffs seek.

[170] This issue was raised by the Crown with Russell J. at the Trial Management Conference of September 17, 2004, when he met counsel for the first time. Russell J. was concerned to know if there were any problems related to Hugessen J.'s Pre-Trial Order of March 26, 2004, and whether there were any important issues that needed to be resolved before the parties went to trial on January 10, 2005. Several significant concerns were raised. The Crown alerted the Court to a

... basic difference in philosophy for some of the issues raised. It is the Crown's position that this case should be run in accordance with the pleadings as amended, and therefore we have our view of relevance. What we see the potential for is expanding the scope of this trial beyond what is in the pleadings ...

(Transcript of September 17, 2004 conference. Mr. Kindrake for the Crown at pages 25:20 to 26:1)

[171] This is a crucial part of the record because the Plaintiffs accuse Russell J. of raising, or appearing to raise, the scope and relevancy issues himself, and of encouraging the Crown to attack the evidence that the Plaintiffs intend to call. As the record shows, this is not correct. The Crown put all parties on notice at the first meeting with Russell J. that is saw a "basic difference in philosophy" concerning "the pleadings," "relevance" and "expanding the scope of this trial beyond what is in the pleadings ... ."

[172] It is also worth repeating in terms of context that, at the same Trial Management Conference of September 17, 2004, the Plaintiffs expressed agreement with the Court through Mr. Henderson that important issues of relevance needed to be resolved before the trial began:

THE COURT: My feeling, if there are going to be big arguments like that on relevancy, it is something we should confront well in advance, rather than at trial.

MR. HENDERSON: Absolutely.

[173] This exchange grew out of a point raised by the Crown over the report of a proposed witness called Dr. Martinez (who had provided one of six expert reports served by the Plaintiffs), but the Court is obviously seeking advice on how to deal with large and contentious relevance issues generally. The Court was concerned about going into the trial with such fundamental problems unresolved and suggested they should be dealt with before trial. The Plaintiffs' response was absolute agreement.

[174] The Plaintiffs now say that the present dispute between the Crown and the Plaintiffs over scope and relevancy was something the Court encouraged. In making such an allegation, however, they neglect to refer to transcripts and records that are replete with instances where the opposite is clearly demonstrated. Hence, their arguments in this regard are of little use to the putative reasonable person interested in the full context.

[175] The Crown did eventually bring a motion dealing with scope and relevancy matters before the Court to address the concerns it raised at the first meeting. However, as already mentioned, the Court has not yet had an opportunity to consider that motion or to review the evidence and arguments adduced by either side. That motion was placed in abeyance by the present motion and is still pending.

[176] It should be noted, however, that even after the Plaintiffs decided to bring the present apprehended bias motion they showed themselves to be well aware that the Court would be dealing with the whole matter of scope, relevancy and the Plaintiffs' will-says in the pending Crown motion. The Court sought Mr. Healey's advice on this matter during a January 7, 2005 conference call.

JUSTICE RUSSELL: Okay, well, let's jump back. I don't think there is anything that we can usefully say, my feeling is that there is nothing we can usefully say today about Mr. Faulds' indication of the 369 motions on costs, we have to wait until they deal with them, but his second point that there are divergent views on what this trial is about and how that matter should be dealt with and when it should be dealt with, it seems to me that as I was considering that issue it was in my mind at least going to (indiscernible) on the Crown's motions on the relevancy and adequacy of the will-says provided by the plaintiffs, but it may be it is not sufficient to approach it in that way and its needs to be dealt with in some other way. So I look to some discussion on that ... Mr. Healey, how do you feel that should be addressed?

MR. HEALEY: Like you, My Lord, I anticipated that that issue would have been dealt with in my friend's submissions just about due now I think considering the propriety of our will-say statements, and I really thought that we would hear from them on that point at that stage.

(Transcript of January 7, 2005 conference meeting, page 54: 6 - page 55: 6)

[177] So all parties appear to be of the view that the issues of scope, relevance and the will-says will be dealt with in the Crown's pending motion that the Court has not yet considered because of the intervention of this apprehended bias motion.

[178] To merely assert, as Mr. Shibley does, that the Plaintiffs have a fundamental right "to prove in evidence and have available to them all relevant evidence to support their pleading" assists the Court in no way in proceedings where pleadings and relevance are in dispute, and where all parties know that the Court has yet to hear full argument on them. Nor does it assist the reasonable person.

How Muldoon J. Influenced Hugessen J.

[179] When it comes to the alleged connection between Muldoon J. and Hugessen J., Mr. Shibley brings together what he regards as "unusual" and "aggressive" remarks and conduct by Hugessen J. with what happened to Muldoon J. as a result of the first trial.

[180] He points out that, after being appointed as case management judge in 1997, Hugessen J. issued a trial direction asking all parties to make a submission about the new trial. No one replied. Mr. Shibley explains why the Plaintiffs did not reply:

What interfered with it was a pending application for leave to the Supreme Court of Canada that delayed everybody for six or seven months.

(Transcript, vol. 1, page 25:4 - 5)

[181] But it is what happened next that is important:

And what happens next? Nobody among the parties or even the interveners takes action for another five months. What does he do? He sends notice to everyone that on his own motion he's considering - he wants the parties to show cause why the action should not be dismissed.

(Transcript, vol. 1 page 25: 7 - 13)

[182] Mr. Shibley's point is that this was a very aggressive reaction on the part of Hugessen J.:

Now this reasonable person is saying, you know, that's pretty aggressive, and is there a problem here?

(Transcript, vol. 1, page 26:12 - 14)

[183] I think it is the Plaintiffs, in full revisionist mode, and dragging the Court back a considerable number of years, who are saying it is aggressive. The reasonable person is simply not provided with enough context and real evidence by the Plaintiffs to decide what it is. If the full context were known, it might be anything but aggressive, and certainly, in the cross-examination of Mr. Healey on his affidavit, good reasons were brought to his attention to explain Hugessen J.'s response. The Plaintiffs have the onus of proving bias. They have the onus of providing the full context within which any particular word or action can be judged. The Plaintiffs are here asking the Court and the reasonable person to merely accept their characterization that the notice sent by Hugessen J. was somehow, "unusual," "aggressive" or, inappropriate in some way. As case management judge, it was the duty of Hugessen J. to move this case along. He had been ignored. The Plaintiffs were also ignoring the legislation that they seek to challenge. The reasonable person cannot judge the validity of the Plaintiffs'

characterization without a context that just isn't provided and on the basis of lawyer witnesses whose present frame of mind is geared to building and arguing a retrospective case for apprehended bias.

[184] This is why allegations of apprehended bias have to be raised as soon as possible with the judge in question. If they are raised later, then context is lost and the party making the allegation can impose a characterization without fear of contradiction and without the inconvenience of having the impugned judge supply the missing context. The Plaintiffs have provided the Court and the reasonable person with nothing to suggest that what Hugessen J. did was not entirely appropriate in the circumstances he encountered at the time.

[185] Mr. Shibley's point, however, is that Hugessen J.'s "aggressive" and "unusual" reaction is only one factor that has to be added to others for a cumulative appreciation of apprehended bias. But it has to be borne in mind that a collection of carefully selected, and highly subjective suggestions and interpretations does not add up to anything. This approach isn't akin to connecting dots to complete a picture; it is more like beginning with the picture you want, and then finding notional dots to support it.

[186] What Mr. Shibley then does is to juxtapose his suggestion that Hugessen J. was "unusual" and "aggressive" (not proved) with the following speculative suggestion:

No. It's a very aggressive reaction. Now this reasonable person is saying, you know, that's pretty aggressive, and is there a problem here? Because the decision of Justice Muldoon was set aside on an apprehension, and there was a reference to a

committee of his peers to review his conduct, and you start to -- have this person start to speculate. But it's speculation, and no effect should be given to it except it's sitting there. It's sitting there.

(Transcript, vol. 1, page 26: 11 - 22)

[187] I agree, it is speculation. And it never becomes anything else. What we see being developed here is a revenge theory (either conscious or unconscious on the part of Hugessen J.) that, although it is derived from the excesses of the Plaintiffs' written argument, never becomes anything more than a tissue of subjective speculation and innuendo.

[188] Reasonable people do not make judgments on the basis of speculative theories; they act upon reliable evidence placed in its full and proper context.

[189] Much of Mr. Shibley's argument proceeds in this way. Words are selected and taken out of context years after the events in question (e.g. "I ask you to note the word 'excuse' as opposed to word (sic) 'reason'") to try and convince the reasonable person that Hugessen J. appears to have acted in his many years as case management judge in an "overly aggressive" way towards the Plaintiffs, and the reason he did this was, perhaps, because of the way Muldoon J. had been treated:

Now, the reasonable person could look at that and start to develop an apprehension that, is there a problem here because of the treatment of Justice Muldoon in the Court of Appeal and by his peers of the judicial review?

(Transcript, vol. 1, page 33: 6 - 11)

[190] I don't think so. The Court is provided with nothing more than theory based upon carefully selected, decontextualized words and phrases used many years ago and whose effect, whatever it was to begin with, has now been absorbed in judgments, appeals and a myriad of actions and meetings and discussions during which the Plaintiffs never once alleged any kind of bias on the part of Hugessen J.. This is not even tissue-thin; it is the merest gossamer that when held up to the full contextual light becomes completely transparent.

[191] The purpose of this theory ("Is there a problem here because of the treatment of Justice Muldoon in the Court of Appeal and by his peers of the judicial review?") is to try and construct a climate of aggression and containment towards the Plaintiffs on the part of Hugessen J. that was inherited and continued by Russell J..

[192] For purposes of this motion, and the controversy concerning scope and relevance that lies behind it, it is important to note that, notwithstanding this alleged appearance of "aggression" and pre-disposition towards containment on the point of Hugessen J., he did grant the Plaintiffs the amendments to their pleadings that they sought in 1998. So, if he was hostile, it didn't stop him agreeing with the Plaintiffs as follows:

The amendments are said to be made necessary by a series of recent judgments rendered by the Supreme Court of Canada which have, to a very considerable extent, changed the law with respect to claims for aboriginal rights. I accept that the amendments will considerably assist the plaintiffs in invoking that recent jurisdiction of the Supreme Court ...

...

Of course there will be the right in each party to bring further evidence. The amendments to the statement of claim make it obvious that there will have to be further evidence and further discoveries as well ...

Sawridge Band v. Canada, [1998] F.C.J. No. 1367, page 2, paras. 2 and 6

[193] These are words by Hugessen J. that the Plaintiffs approve highly. They are very significant, the Plaintiffs believe, for their argument that self-government was made a discrete issue in the pleadings. Here is Mr. Shibley praising them in his oral argument:

Now, let's just stop there. What he is, in effect, saying, that the plea of self-government, which is now part of the amended statement of claim, raises the need to for additional evidence and additional discoveries. It's a recognition of a discrete issue that's been raised that wasn't part of the former trial. A very significant acknowledgment in the context of what comes later at the instance of the respondents where they are saying, there's nothing more or different in this lawsuit requiring any evidence. And the thrust of their initiative is to take away the right of the plaintiffs to lead evidence in this regard in complete contradiction to what Justice Hugessen has said.

(Transcript, vol. 1, page 51:13 to page 52:4)

[194] The issue of whether self-government is a "discrete issue" in the pleadings is the very issue that the Court has yet to decide. So, Mr. Shibley is arguing the case here that the Plaintiffs will presumably argue when the Crown's pending motion (held in abeyance by this motion) comes before the Court. And here is Hugessen J., in 1998 providing strong support, say the Plaintiffs, for their position on discrete self-government in the pleadings.

[195] Yet this is the judge who, until this point in their argument, is supposed to have sowed the seeds for a reasonable apprehension of bias against the Plaintiffs because there is a suggestion that he may have been too "aggressive," that he has used the word "excuse" instead of the word "reason," and because, well, "Is there a problem here because of the treatment of Justice Muldoon in the Court of Appeal and by his peers of the judicial review?"

[196] So, on the one hand, Mr. Shibley says that Hugessen J., before the 1998 amendments, presents an appearance of not being well disposed towards the Plaintiffs and began the pattern of hostility and containment that Russell J. perfected, while, on the other hand, Hugessen J., in the reasons for granting the 1998 amendments confirmed the position of the Plaintiffs on the discrete issue of self-government. So Hugessen J. appears to the reasonable person to have been so aggressive and intent upon containment that he granted the Plaintiffs precisely what they wanted.

[197] I have to admit to being baffled by this suggestion, and I suspect the reasonable person would be too. In my view, it is the kind of inconsistency that arises when context is ignored. The Plaintiffs are not concerned to provide the full context for anything Hugessen J. said. They focus solely on isolated words and actions. If they think those isolated words and actions can be used to support their case for apprehended bias, then they are reproduced and brought before the Court. When they think that individual words or actions support their case for discrete self-government in the pleadings, they cite them in an approving way. What the Plaintiffs do not do is to put the words and actions together and ask what the reasonable person would make of the whole context.

[198] The Plaintiffs seek a way out of the paradox they have created at this point in their oral argument by then highlighting and isolating some of the things that Hugessen J. said after he granted the 1998 amendments and used the words of which they approve so highly. The theory appears to be that when Hugessen J. granted the 1998 amendments that the Plaintiffs wanted, it was some kind of lapse, and that, soon afterwards, he reverted to his bad old ways, or at least it would appear to have done so by the reasonable person.

[199] One of the important themes of these proceedings since the Federal Court of Appeal sent the matter back for re-trial in 1997 has been the extent to which evidence from the first trial should be used in any re-trial. The Plaintiffs took the position with Hugessen J. that all of the original evidence was tainted and should not be used, but they failed to convince Hugessen J. of this.

[200] The connection between the original trial record, the pleadings, and the extent to which new evidence is required to support the pleadings has also been a significant aspect of the proceedings since Russell J. was appointed as trial judge in 2004. In fact, these issues lie directly behind this motion and cannot be left out of account when factors are identified that the reasonable person would take into account is assessing an apprehension of bias.

[201] In a motion by the Crown seeking directions arising out of his September 23, 1998 Order, Hugessen J. had the following to say in his reasons of December 13, 2000:

HUGESSEN J. (Reasons for Order, orally):- 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 intervener 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 intervener shall respond thereto in writing by December 30, 1998, following which any party or intervener 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 and 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 cases 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 their 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.

[202] The portions of these reasons that the Plaintiffs isolate and seek to rely upon in this motion occur in paragraph 9.

[203] The Plaintiffs argue that, notwithstanding the amendments he granted in 1998, Hugessen J. is here saying certain things about the re-trial that are not correct and are, in any event, matters for the trial judge. They say that Hugessen J. should not be saying that the "issues at the second trial are fundamentally the same" or that the "changes found by the Supreme Court ... do not have the effect of changing the factual matrix upon which the case must be decided." Here, the Plaintiffs allege, Hugessen J. gives the appearance of attempting to control the lis of the re-trial and usurping the role of the trial judge.

[204] The Court's view on this is that these comments cannot be read out of the context of the decision in which they were made. This was a motion for directions that took place almost two years after the amendments of 1998. Paragraph 9 is Hugessen J.'s answer to the argument put forward by counsel for the Plaintiffs (Ms. Twinn, Mr. Henderson and Mr. Healey) that "counsel have complete control of the trial and should be allowed to call what evidence they choose and more importantly, in the way they choose."

[205] This argument has a familiar ring to it, because it is precisely the argument that Plaintiffs' counsel have re-iterated before Russell J., and it is a matter that Russell J. will have to deal with when he hears the pending Crown motion on the Plaintiffs' will-says and their relationship to the pleadings.

[206] But the important fact to note in Hugessen J.'s reasons is that he is not addressing the scope of the pleadings; he is refuting the argument of Plaintiffs' counsel that they can call whatever evidence they choose in the way that they choose. At this point, Hugessen J. has already addressed the pleadings. He did that in 1998. The pleadings speak for themselves; they mean what they say. In the reasons of December 13, 2000, Hugessen J. is concerned to impress upon Plaintiffs' counsel that they cannot just do anything they please as regards the calling of evidence. He appears to be saying that counsel's argument is unacceptable and the particular facts of this case have to be addressed. The re-trial is not an entirely new affair and, when it comes to the calling of evidence, similarities between the two trials will have to be taken into account. He is responding to particular issues and arguments that were raised before him by counsel. Hugessen J. does not say that no new evidence is required; he merely says that, in deciding what evidence to call, counsel for the Plaintiffs will have to pay attention to similarities between the issues and the facts as they are pleaded. The case is still about band membership and those customs, practices and traditions related to band membership.

[207] Moreover, it must also be borne in mind that when Hugessen J. used these words in December 2000, he did not have the benefit of the Plaintiffs' position on self-government as stated in paragraph 17 of their Memorandum of Argument for the present motion, where they tell the Court that their intent is to "change the framework of the Canadian federation by creating a three cornered relationship between the federal government and aboriginal governments." In December 2000, Hugessen J. had to make do with the Plaintiffs telling him in 1998 that "we are

not saying we have a right to self-government at large. That is not what this case is about" and other more modest characterizations of the lis employed by the Plaintiffs at that time to convince Hugessen J. that the "new pleading is simply an explication based on the old one." So, in light of what the Plaintiffs themselves were saying about the scope of their pleadings at the material time, the words of Hugessen J. would not, I suspect, appear quite as inappropriate to the reasonable person as the Plaintiffs would like to make them now. If, as the Plaintiffs now assert, the pleadings encompass some kind of claim for a third order of government that will "change the framework of the Canadian federation," it does seem strange that they cannot bring the Court to any evidence to suggest that this is what Hugessen J. understood when he allowed the 1998 amendments to the pleadings. Surely a matter of such import would not have escaped his attention, and surely there would be some mention of it in the record.

[208] No reasonable person would think, in the context of the whole decision and its relation to the pleadings as a whole, that Hugessen J. was trying to change the effects of the amendments he had allowed in 1998 or to deny the Plaintiffs the right to call new evidence at the re-trial to address the impact of those amendments. In any event, he leaves "relevancy" to be raised with the trial judge as the parties consider appropriate. And the Crown has been trying to do just that.

[209] The other significant contextual issue that the Plaintiffs neglect to mention concerning Hugessen J.'s reasons of December 13, 2000 is that the Plaintiffs appealed the order he had made on the basis of those reasons. In that appeal the Plaintiffs were obviously not concerned with

Hugessen J.'s use of the terms "fundamentally the same" and his saying that the Supreme Court of Canada decisions did not change the "factual matrix" because they did not challenge them. Nor did the Plaintiffs raise any concern over apprehended bias. The Federal Court of Appeal upheld Hugessen J.'s Order and dismissed the appeal.

[210] So, if Hugessen J. did appear to renege on his 1998 amendment decision, and was in December, 2000, concerned to limit the issues in the re-trial, it would appear that the Federal Court of Appeal (although the Plaintiffs do not say this specifically) was apparently, aiding and abetting him.

How Hugessen J. Influenced Russell J.

[211] Of course, the Plaintiffs are not concerned to have Hugessen J. recuse himself; they want the removal of Russell J.. So their principal purpose in isolating the remarks from paragraph 9 of Hugessen J.'s December 13, 2000 reasons is to argue that the offending words came to dominate the thinking of Russell J. both in his consideration of amendments proposed by the Plaintiffs in 2004 and in other decisions he has made since his appointment as trial judge. Here is Mr. Shibley describing what the Plaintiffs see as the impact and significance of Hugessen J.'s December 13, 2000 remarks:

That's a very significant reversal from his comments at the time the amendments were made, and, frankly, on their face those comments are inconsistent with the amendments. The issues are not the same, and the factual matrix upon which the case must be decided is not the same. He recognized that when he said there have to be additional discoveries, et cetera, and additional evidence.

...

And why the change? And is this an isolated shift in the Court, or is this part of a pattern, as it turned out to be, that there is a veering away, an attempt to steer the case into a condition where the only evidence that is to be permitted is the evidence at the first trial?

(Transcript, vol. 1, page 50: 11 - 20, and page 60: 4 - 10)

[212] One significant contextual matter that the Plaintiffs leave out of account in all of this is that, during the time of Hugessen J.'s involvement as case management judge, there were various appeals to the Federal Court of Appeal on decisions that he made, and the Federal Court of Appeal does not appear to have expressed concerns on the issues that the Plaintiffs have now decided to raise years after the fact, or about Hugessen J.'s general approach to co-ordinating first trial evidence with the re-trial process.

[213] But the important point is the central claim by the Plaintiffs that Russell J. appears to have been not only influenced, but wrongly influenced, by Hugessen J.'s remarks and was led into error and, in effect, became part of the general pattern of the Court to "steer the case into a condition where the only evidence that is to be permitted is the evidence at the first trial." Here is Mr. Shibley again, from the transcript, addressing what is, really, the cornerstone of the Plaintiffs' oral argument:

I remind you of my opening statement that it's the cumulative effect, and in the case of Justice Hugessen, he's not the trial judge, but if it appears - if it only appears, and that's all that's required, that he has influenced you in respect of your determination of what evidence should be available or any limitations that you impose on availability of that evidence, if he appears to have influenced your mind, bearing in mind we're dealing with the case management judge on the same case that you are intended to try, then this becomes germane.

(Transcript, vol. 1, page 60: 20 to page 61: 7)

[O]ne of the preliminary decisions a trial judge has to make is to decide what is the real lis in the case. And he has to resolve that where a claim to self-government is asserted, is there evidence that is in support of that sufficient to say that he has to determine it? That's his first exercise.

(Transcript, vol. 1, page 61: 21to page 62: 3)

This person [the reasonable person] is looking at this and says, What's going on here? Is the Federal Court in the form of Justice Hugessen trying to influence the ultimate disposition of this case when it arrives in the hands of the trial judge by making these observations? And did it influence you, My Lord, when evidentiary issues and the opportunity to lead evidence were issues that were affected by your rulings?

(Transcript, vol. 1, page 62: 13 - 21)

[214] Here we are, then, at ground zero of this motion. However, before the reasonable person could make an assessment on these issues, there are several crucial contextual factors that the Plaintiffs do not point out, but which need to be stated:

1. Russell J. has not yet had occasion to decide what the "real lis" of the case is in terms of the extent to which a claim to self-government is asserted, unless the Plaintiffs are referring to Russell J.'s June 29, 2004 decision on proposed amendments to the pleadings, which the Plaintiffs accepted and did not appeal, and which I will come to shortly. The decision on the extent to which the pleadings as presently drafted involve self-government issues, and how the evidence that the Plaintiffs propose to call is relevant to those issues, is expected to be part of the pending Crown motion. Mr. Healey has indicated he is in agreement with the Court in this regard;

2. Russell J. has made no decision yet regarding the evidence that the Plaintiffs wish to call and whether it is relevant to the pleadings. Russell J. has made decisions concerning the Plaintiffs' will -says, which I will come to shortly, but the sole purpose of those decisions has been to have the Plaintiffs rectify their breach of Hugesson J.'s March 26, 2004 Pre-Trial Order. Until that breach was rectified and the Plaintiffs' will-says were available, the Court could not even begin to address whether the proposed evidence is relevant to the lis as defined by the pleadings.

[215] To begin with, the Plaintiffs' argument - its cornerstone argument - contains, I believe, a fatal fallacy. No reasonable person could determine that Russell J. has been influenced by Hugessen J., or anyone else, until Russell J. has had the opportunity to hear the parties on the scope of the pleadings and the relevance of the Plaintiffs' proposed evidence, an opportunity that has not yet occurred. Until the Plaintiffs have actually established that the pleadings do encompass the aspect of self-government they espouse, and that they have the right to adduce evidence to support their notion of self-government (something they have yet to do), there can be no bias on the part of the Court. The Plaintiffs are saying that the Court must merely assume that they are right on what the pleadings say, even before the Court has heard argument on the issue. No reasonable person would accept such a proposition.

[216] So this motion is, at the very least, premature.

[217] Secondly, a significant contextual matter that the Plaintiffs do not bring out in their argument, but which the reasonable person would be very interested in, is the remarks that Russell J. has actually made on the issues of scope and relevance. He has made no decisions yet, but he has had to address the disagreement between the Plaintiffs and the Crown on these matters from time to time.

[218] As already indicated in these reasons, scope and relevance were first raised by the Crown at the initial meeting between Russell J. and all counsel at the Trial Management Conference of September 17, 2004. They became one of those important issues that needed to be resolved before the trial began.

[219] Another important occasion when scope and relevance came up was during the course of a motion brought by the Plaintiffs with their suggestions for a "workable solution" to the procedural problems caused by their breach of Hugessen J.'s Pre-Trial Order of March 26, 2004. In reading the materials filed prior to the hearing for that motion, Russell J. realized that the controversy over scope and relevance was very much connected with what the parties were about to argue before him. At the beginning of the hearing, he mentioned this and sought the advice of all counsel on how it could be handled:

In relation to the Plaintiff's motion before we begin it, a significant issue has now raised its head that is mentioned in the material. It's one that gives me great concern.

But it's full implications have not been fully explored I don't think in the written materials. And I don't know if it is something you can bring out today in your presentations or whether we have to leave it for another time. And you'll have to advise me on this.

And that issue for me is this. You who have known for years and I have known since we did the amendments to the pleadings that there is a significant disparity between the parties as to what this lawsuit is about. Well perhaps it would be more accurate to say that there's a significant disparity between what the parties regard as being relevant to what this lawsuit is about.

We have the pleadings now but I see a great divide as to what's relevant to those pleadings. As we all knew it would, that issue will now begin to dominate our minds and efforts to get ready for the trial. And it's more than apparent in the criticisms that are made in the materials concerning the Will Says that the Plaintiffs have produced a date, it's there, it's been placed on the table.

It concerns me because in discussing the Plaintiffs' motion on the Will Says, it's obvious that considerable time and resources have been spent and may be spent in the future interviewing witnesses and producing Will Says when there's obviously going to be a significant show down on whether the effort is really relevant to the issue and pleadings.

I don't know how to grasp that nettle now and deal with it. There may be no way of doing so and I will need your advice on it at some time even if we can't work it into today's discussions. But it's hovering in the background behind everything and I want to bring it forward and I want - I want us to address that in some way.

(Transcripts and Pre-Trial Orders and Direction , page 10: 21 to page 12: 10)

[220] The scope and relevance issues were not addressed at the November 18, 2004 hearing. They could not be addressed at that time because the Plaintiffs had produced only 18 will-says out of a possible 150. The Crown raised the adequacy of the will-says actually produced, but the Court declined to deal with the Crown's arguments in that regard and said the matter would have to be left until the Plaintiffs had produced their witness list and will-says. The Court confirmed this position in its reasons of November 25, 2004:

...

9. I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will say statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before trial. The parties hold widely divergent views as to what this trial should deal with and, in light of the large number of witnesses the Plaintiffs have indicated they intend to call, the Crown and the Interveners have justifiable concerns about the barrage of further evidence and what it means for the conduct and duration of the trial. Normally, of course, I would leave these matters to be dealt with at trial, but the history of this action has shown time and again that it would be naive to assume that normal procedures will suffice. I have taken careful note of Mr. Justice Hugessen's words in his order of March 6, 2002 that he was "driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves even when case managed." This motion and the reasons for it are ample proof that nothing has changed in this respect. Because the Plaintiffs have not yet produced a new witness list, and because at the time of the motion hearing they have only put forward 18 will say statements out of a possible 140 - 150 (some of them obviously highly controversial), the Court is in no position to assess what the situation will look like once the Plaintiffs have delivered the full quota. I am simply not willing to go forward in the hope that all will be well when so little is known about the Plaintiffs' witnesses, their number, or why they are even necessary, and the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.

...

[221] So the Court is here indicating clearly that it will not be addressing the "philosophical differences" between the parties concerning scope or relevance until the picture is complete, and the Court simply acknowledges the fact that the Crown has, again, put it on notice that challenges are coming.

[222] The Plaintiffs' position, however, is that the Court was at that time actively encouraging the Crown to challenge the Plaintiffs' will-says as part of the Court's containment efforts to keep self-government out of the re-trial.

[223] However, the record shows that, at the hearing of the "workable solution" motion in November, 2004, the Crown was being entirely consistent concerning the matters in dispute that it had raised at the Trial Management Conference of September 17, 2004. And the Court was clear that the time had not yet come to make that decision.

[224] So, looking at the full context in which the issues of scope and relevance have been raised, and the actual words used by the Court to date, the reasonable person would need to decide whether the Court, in the form of Russell J., gives the appearance of having been influenced by what Hugessen J. might have said (and lets just assume for the time being that he was trying to influence the trial judge, which, of course, is not proven), or whether the Court appears to be saying that it will not be making any decision on those issues until the will-says are produced, and the Crown has raised any concerns it has at a full hearing.

[225] It seems very clear to me that the reasonable person must conclude that Russell J. has no pre-disposition on these issues and is trying to find out from the parties how they intend to resolve an important controversy that was raised at the Trial Management Conference of September 17, 2004. Russell J. either means what he says, or he is lying, and when I drew this to Mr. Shibley's attention at the hearing of this motion, he assured the Court that he was not alleging that Russell J. was lying. So if these statements by Russell J. are genuine, as Mr. Shibley has acknowledged they are, the reasonable person must be taken to read them in accordance with their plain meaning.

[226] So what do the Plaintiffs mean when they talk about Hugessen J. appearing to have influenced Russell J. "when evidentiary issues and the opportunity to lead evidence were issues that were affected by [Russell J.'s] rulings?"

[227] What they can only mean is the series of rulings that Russell J. has made since he was appointed trial judge. I am now going to look closely at those rulings, but it has to be borne in mind at all times that they can only be understood in the full context of what Russell J. has actually said about the dispute between the Crown and the Plaintiffs on the issues of scope and relevance, as referenced above.

June 29, 2004, Amendments to Pleadings

[228] In 2004, the Crown and the Plaintiffs sought leave to amend their pleadings. This was done by way of respective motions in writing under Rule 369 of the Federal Court Rules, 1998. Russell J. considered both motions together and allowed some of the proposed amendments by the Crown and the Plaintiffs and disallowed others. IN a general sense, amendments were allowed to the Plaintiffs' pleadings where those amendments were consistent with previously pleaded positions. However, where it appeared that the Plaintiffs were attempting to significantly expand their pleadings or to incorporate new causes of action, then their proposals were disallowed for the reasons given.

[229] In disallowing some of the Plaintiffs' proposed amendments, Russell J. gave the following reasons:

...

26. The contentious aspects of the Band's proposed amendments are objectionable for several reasons:

a) some of the proposed amendments to paragraph 8 conflict with previous rulings made by this Court that the Plaintiff in the action is the Band itself in its own right; and

b) some of the amendments would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination; and

c) some of the amendments would further broaden the claims by raising allegations about first nations other than the Band.

27. In my view, the objectionable amendments I will later refer to do not clarify and focus issues for the Court. They raise new and contentious issues that will require further discovery and will further delay the trial. The late stage at which these amendments are proposed, their number and importance, the degree to which previously held positions are changed, and the inevitable prejudice that will result to the Crown (see Maurice v. Canada (Minister of Indian Affairs and Northern Development), [2004] F.C.J. No. 670, 2004 FC 528 at para. 10) convinces me that these amendments should not be allowed. In addition, some of them are just not relevant to the issues in dispute. As NSIAA points out, the effect of some of the amendments proposed by the Band would be "to put the Crown on trial for all of its conduct with respect to all First Nations in Canada. A trial that is now anticipated to take months could end up taking years to resolve." In addition, other amendments would "substantially expand the scope of this action and raise issues where there has been no discovery" in a context where "the amendments add nothing substantive to the Plaintiff's claim that it has an aboriginal right to determine its own membership ... ." In fact, it seems to me that the words "First Nation" now mean the plaintiff Band and only the plaintiff Band. No purpose is really served by having two different terms ("plaintiff" and "First Nation") to refer to the Band even though I have no real objection to this if the Band wishes to use both terms.

...

[230] In addition to providing this explanation, Russell J. also made it clear in his reasons that he did have regard for some things that Hugessen J. has said. But he refers only to orders of

Hugessen J. of May 26, 2003 (which dealt with style of cause issues) and March 26, 2004 (which was the Pre-Trial Order authorizing the parties to seek amendments).

[231] There is no mention in Russell J.'s reasons of June 29, 2004 of anything that Hugessen J. might have said or written in his December 13, 2000 reasons. There is nothing to suggest that Russell J. made his decision on the basis of anything more than was contained in the motion materials. So what do the Plaintiffs offer to support their allegation of apparent influence at this point?

[232] They offer the following bald assertion, which is found at paragraph 77 of their Memorandum of Argument:

...

77. These Reasons are unusual. They are unusual because there was nothing in the motion records filed with Russell J. which could account for such conclusions and findings. Obviously, the discovery transcripts were not filed with the Court. Nor would it be appropriate for the Court to review those transcripts. Nor was there any argument on these issues. Nor should a trial judge be speculating about what did or did not occur at discovery. It is also inappropriate for a trial judge to look through a file to make findings on behalf of one side which was not relied upon by the party on the motion. Yet is appears that Russell J. must have done something like this before determining this motion.

...

[233] The authority for this assertion is given as the "Affidavit of Philip Healey." So, at this point, Mr. Healey has donned another hat and designated himself legal authority in a motion where he is also providing evidence and argument.

[234] However, quite apart from the categorical statements about what a trial judge should or should not do, and for which Mr. Healey relies upon himself as the sole legal authority, there is a peremptory dismissiveness about these allegations: "there was nothing in the motion records ..." Really?

[235] Mr. Healey does not say that some matters were referenced in the materials filed, but they were not adequate to support the conclusions. He says there was "Nothing."

[236] At the cross-examination of Mr. Healey on this issue, it was brought to his attention that materials had been filed with the amendment motion in 2004 that provided a basis for the conclusions of Russell J.. Mr. Healey, however, remained resolute:

A. What I'm saying Mr. Kindrake, is that, to reach the conclusions that he reached, he had to have looked elsewhere other than the material that had been filed with him by the parties, because - or he would have had to speculate about what had happened at the discovery process. It seems to me that that would have been the case and that's what I'm setting out in paragraph 77.

(Cross-examination of Philip Healey, page 162: 23 to page 163: 3)

Q. So are you saying it was improper for Justice Russell to look at Exhibits "E" and "F" to that Motion Record which, in my view, for what it's worth, give a great deal of history of the Examinations for Discovery and history of the file generally?

A. No, I don't think it's improper for Mr. Justice Russell to look at material that was filed with him on the motion. My point is that -

Q. Isn't that the answer to where he got the information about the history on the file and the discovery process?

(page 164: 18 to page 165:2)

A. No, I don't agree that the information that's contained in those exhibits support the kinds of conclusions that he made.

Q. That's fine. You choose a more nefarious inference; is that it?

(page 165: 20 - 24)

[237] So "nothing," apparently means that materials were filed but Mr. Healey believes they did not support the conclusions. No explanation is given as to why the materials filed in the motion don't support the conclusions. Mr. Healey's assertion is all the Court is given.

[238] In the context of the Order itself, and the materials that were filed with that motion, I do not believe that Mr. Healey's mere assertion would carry the day with the reasonable person.

[239] This is a crucial issue for the Plaintiffs. They are making serious allegations against a judge of the Federal Court. Yet Mr. Healey refuses to produce or engage with the relevant record when offered the chance to do so. The Court is asked to accept that his assertions alone should be persuasive.

[240] In the present motion, the Plaintiffs have offered nothing, apart from revisionist assertions, to show that Russell J. was even aware of, let alone influenced by, anything Hugessen J. may have said concerning the scope of the lis, the relationship between the first trial and any pre-trial, or the "factual matrix" issue.

[241] Russell J.'s Order and reasons of June 29, 2004 are self-explanatory and, in any event, provide a discrete, consistent and cogent explanation for disallowing some of the amendments proposed by the Plaintiffs.

[242] What is more, the Plaintiffs did not appeal Russell J.'s decision concerning their proposed amendments. It has to be borne in mind that the Plaintiffs have not been shy of appealing orders made by either Hugessen J. or Russell J.. Also, as their submissions in this motion make clear, the Plaintiffs have considerable faith in the willingness of the Federal Court of Appeal to correct the mistakes of the Federal Court. Yet they did not appeal the June 29, 2004 Order.

[243] Paragraph 26 of Russell J.'s June 29, 2004 Order makes it clear that the proposed amendments he is rejecting are those that "would have the effect of enlarging the nature of the action and would bring in a new claim of self-determination" and would "broaden the claims by raising allegations about first nations other than the Band."

[244] As already mentioned, in the present motion, at paragraph 17 of their written argument, the Plaintiffs make the following assertions:

[T]his case is "perhaps the most significant Indian rights case brought to the Court"; the "Plaintiffs are seeking, inter alia, section 35(1) recognition of their self-government right as contemplated by the Supreme Court in Mitchell"; if such a right is recognized it will "change the framework of the Canadian federation ..."

[245] If these contentions are true at the time of this motion, they must also have been true when Russell J. made his June 29, 2004 Order excluding amendments that would bring in a new claim of self-determination.

[246] Yet the Plaintiffs did not appeal that Order. They accepted Russell J.'s position and moved forward with the proceedings on the basis of his Order and his reasons. That June 29, 2004 Order, and the issues it dealt with, are res judicata. Yet the Plaintiffs now request in this motion that, among other things, Russell J. should recuse himself as trial judge and that they should be allowed a say in who his replacement should be.

[247] What does Mr. Shibley, in his oral argument, say the reasonable person would make of all this? His key points are as follows:

And in your reasons it certainly appears that you were influenced in making that determination by the latter day observations of Mr. Justice Hugessen. Because if you look at page 33 of the written argument, paragraph 78, you'll see with respect to the amendments sought by the plaintiffs you held (quoted):

"(a) they either raised 'new and contentious issues that will require further discovery'; were 'not relevant to the issues in dispute'; or 'substantially expanded the scope of this action';

(b) They 'add nothing substantive to the Plaintiffs' claim that it has an Aboriginal right to determine its own membership';"

That's key, because it indicates that at this juncture in your mind the only right that's being asserted in these proceedings is a right to determine band membership. And it appears -- and that's all that's required, My Lord. Even though you might not have been thinking this way when you made that observation, it nevertheless appears that you are neglecting the plea of -- or the claim for a right of self-government in favour of adopting the self same position that Justice Hugessen ultimately pronounced upon, that the factual matrix remains the same.

There's nothing different about this action than was required in evidentiary terms in the first.

And that is a wrong conclusion. And if there is an appearance that you are making that conclusion, even though you weren't in your mind, that's sufficient to create the apprehension about which this application is about.

And what it does, it forms part of the continuity, it forms part of the accumulation of evidence known to this reasonable person, which now includes Justice Hugessen's comments to say, Wow, if the trial judge had ignored those comments and made it clear by his own pronouncements that anything but that is correct, that, in fact, there has to be a recognition of the need for new and additional evidence, as Justice Hugessen originally commented, and that continues to be your view, then it would be different. You could ignore the earlier. But it's not different; it's the same.

And so what is said here, adds nothing substantive to the plaintiffs' claim that it has an Aboriginal right to determine its own membership. And further to that, you said (quoted):

"(c) that the 'central allegation in this case...is that the Crown has infringed the Band's right to determine its own membership'."

Well, that is certainly a central issue, but it isn't the central issue and certainly not the only central issue. And by omission to any reference to the claim to self-government, this reasonable person is made to think now, My word, this Court is not going to pay attention to our claim to self-government.

(Transcript, vol. 1, page 66: 16 to page 69: 11]

[248] First of all, and I think the reasonable person would consider it worthy of note, no explanation is offered as to why, if any of this is true, the Plaintiffs did not immediately appeal Russell J.'s Order of June 29, 2004. If the impact is what Mr. Shibley now says it is, - that Russell J. is neglecting the "claim for a right of self-government in favour of adopting the self-same position that Justice Hugessen ultimately pronounced upon ..." - that impact was immediately apparent when the Order issued. So why did the Plaintiffs not ask the Federal Court of Appeal to correct the mistake? It can only be because the Plaintiffs accepted Russell J.'s reasons and Order or, even if they did not accept them, they felt sure the Federal Court of Appeal would. Nor did the Plaintiffs allege any form of bias against Russell J. as a result of his Order.

[249] The second thing to note is that Mr. Shibley's argument again assumes that the Plaintiffs' assertion to a discrete self-government claim in the pleadings is established, even before the Court has heard full argument on this issue. And, on the self-government issue, Mr. Shibley also neglects to point out that Russell J. did allow the Plaintiffs to make some amendments that reference "self-government," and he fails to connect them with the 1998 amendments and the new evidence that Hugessen J. referred to that would be relevant to those amendments. In other words, the notion of self-government in question is left vague in Mr. Shibley's argument and he fails to distinguish between self-government at large and amendments that dealt with a more limited version of the concept.

[250] Thirdly, the assertions neglect the points of reference that are actually provided in Russell J.'s reasons of June 29, 2004: Hugessen J.'s Orders of March 26, 2004 and May 26, 2003. The assumption is that Russell J. would appear to the reasonable person to be following Hugessen J.'s reasons of December 13, 2000, even though he doesn't refer to those reasons.

[251] So the awkward question arises: Would the reasonable person apprehend that in reasons that specifically reference and identify Orders of Hugessen J., Russell J. was, in reality, following or being influenced by another set of reasons that he neglects to mention?

[252] I do not believe the reasonable person would come to such a conclusion. We are back in the realm of theory and speculation. I believe the reasonable person's assessment would be based upon what the record actually says and reveals.

[253] I also believe that the reasonable person would take particular note of the fact that the Plaintiffs did not appeal Russell J.'s Order and reasons of June 29, 2004, or allege apprehended bias, and that rather than place issues that they now say are of crucial importance to them before the Federal Court of Appeal, they have chosen, instead, and well after the fact, to allege apprehended bias, and are also asking that they be allowed to argue the whole matter again before a judge who they have a say in choosing.

[254] The reasonable person would know that our legal system does not allow this. If a party to a law suit disagrees with a decision, they appeal it; they do not ask that it be decided again by a different judge whose credentials and disposition they approve.

October 18, 2004 - the Will-Say Issue

[255] The Crown brought two motions related to Hugessen J.'s Pre-Trial Order of March 26, 2004. In one motion the Crown sought an extension of time within which to file rebuttal expert evidence, but also asked that, as part of that rebuttal evidence, their expert be allowed to

comment on the Plaintiffs' oral history evidence at a time during the trial after the histories had been entered by the Plaintiffs.

[256] The Court granted the extension of time but agreed with the Plaintiffs that the Crown expert should not be allowed to provide the Court with expert rebuttal on the credibility and truthfulness of a particular witness, and the Court refused that aspect of the Crown's motion.

[257] At the same time, the Crown brought a motion pointing out that the witness list and will-say statements produced by the Plaintiffs were in breach of Hugessen J.'s Pre-Trial Order of March 26, 2004 in several fundamental ways. The Crown asked that the witness list and will-says be struck and that the Plaintiffs not be allowed to call any of their named witnesses.

[258] The Court agreed with the Crown that the Plaintiffs' witness list and will-says were in breach of Hugessen J.'s Pre-Trial Order of March 26, 2004, but it refused to deny the Plaintiffs the right to call their witnesses. Instead, the Court asked the Plaintiffs to come up with a "workable solution" to the problems caused by their default:

[259] The reason why the Court had to take this approach is made clear in the reasons of October 18, 2004. The Plaintiffs took a very hard line, refused to acknowledge that they were in

breach of the Pre-Trial Order, and made no suggestions to the Court for resolving the difficulties they had caused for the other parties, or the disruption of the schedule set out in Hugessen J.'s Pre-Trial Order. Paragraph 41 of the reasons refers to these difficulties:

It is very telling in my view that the Plaintiffs take a hard position that they have complied with para. 9 of Justice Hugessen's Pre-Trial Order. They do not ask for time or suggest ways in which deficiencies in their materials can be remedied.

[260] It is also significant that on the deadline set in the Pre-Trial Order - September 15, 2004 - for the production of a witness list and will-says, the Plaintiffs revealed for the first time that they planned to call approximately 150 witnesses. This considerable factor had not been disclosed to Hugessen J. when he established the schedule in the Pre-Trial Order, and it had not been revealed to the other parties. Nor had the Plaintiffs raised the actual format they used for their witness list and will-says, or explored with the Court or the other parties their intended approach for calling an extensive array of witnesses on topics that they must have known would be controversial, given the state of the pleadings. They just sprang their materials on the other parties on September 15, 2004, and insisted with the Court they had a right to do what they pleased when it came to calling witnesses.

[261] So, at this point, the Plaintiffs were insisting that they had an absolute right to call approximately 150 witnesses and that they had complied with the Pre-Trial Order. In other words, the Plaintiffs were simply saying that they could call any evidence they wished, irrespective of its relevance to the pleadings, and that they were not willing to acknowledge that they had caused any problems by producing obviously deficient materials.

[262] The Court saw that such an uncompromising attitude was destined to lead to chaos in the period leading up to the trial and at the trial itself, and decided it had to take firmer control of the proceedings:

...

46. In my view, the arguments produced by the Plaintiffs to resist compliance with justice Hugessen's Pre-Trial Order are spurious and disingenuous. No one is trying to interfere with the way the Plaintiffs present their case; the Plaintiffs are merely being asked to recognize the rights of the other parties to this litigation to prepare themselves adequately for this trial in accordance with the scheme established by Justice Hugessen' order and to cooperate in ensuring the most just, expeditious and least expensive determination of this proceeding occurs on its merits. The Plaintiffs appear to think they can merely do as they wish. The history of this file is replete with warnings. In an order dated March 6, 2002, Justice Hugessen had the following to say:

I am driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves, even when case managed.

This is a sorry state of affairs that this motion reveals has not changed.

...

[263] Once again, Mr. Shibley suggests that the Court's approach in this Order reveals that the Court presents a reasonable appearance of having accepted Hugessen J.'s attempts to limit the scope of the trial, as well as the Crown's and the Intervener's attempts to prevent the Plaintiffs

from calling new evidence, and that the Court appears to have developed a predisposition to deny the Plaintiffs the right to call the evidence they need for the trial.

[264] I believe that such an interpretation is only possible if one completely disregards the actual terms of the Order and the context in which it was made, including the Plaintiffs' stubborn refusal to acknowledge they had caused any kind of problem. I believe the reasonable person would not leave these important matters out of account.

[265] While obviously rejecting the Plaintiffs assertion that the Court has no right to question their witness list, and that they have an absolute right to call approximately 150 witnesses for whom they have not produced adequate will-says, the Court opted for an ordered and principled approach towards trial preparation and asked the Plaintiffs to suggest a "workable solution" that would address the needs of both sides in the dispute, bearing in mind that time was getting on and the trial date was still fixed at January 10, 2005. Striking the will-says produced on September 15, 2004 as being obviously deficient was the Court's way of emphasizing that it was in control, not the Plaintiffs. All the Plaintiffs had to do was come up with a timetable that would allow them to produce compliant will-says and allow the Crown the time it needed to do what it had indicated at the Trial Management Conference of September 17, 2004, it planned to do before the trial began.

[266] The Plaintiffs have raised various revisionist arguments and assertions about the October 18, 2004 Order to try and sustain a thesis that it presents at least an appearance of the Court actively assisting the Crown and the Interveners to exclude the evidence of the Plaintiffs. These arguments and assertions, however, disregard what the record actually reveals, and I will come to specific passages later.

[267] The Plaintiffs also say now that the Court presented an appearance of colluding with the Crown and the Interveners because the standards it set for the Plaintiffs' will-says were too high, and were not applied to the other parties. They say the Court should have stepped in and imposed the same standards on all will-says.

[268] The record, however, reveals the following:

a) The standards imposed by the Court were those set by Hugessen J. in his Pre-Trial Order of March 26, 2004 as interpreted by the Court to meet the exigencies of the particular situation that the Plaintiffs had sprung upon the other parties on September 15, 2004. The Court did not just impose the criminal (Stinchcomb) standard as the Plaintiffs' allege; the Court assessed what the actual situation required, and took into account all contextual factors, including the Plaintiffs' recent revelation that they now intended to call approximately 150 witnesses. The purpose of the standard was to ensure that there could be no trial by ambush. If

the standard imposed approximated to Stinchcomb, that is not because the Court decided that a criminal standard was suitable to this situation; it is because the situation itself required the degree of disclosure that was ordered. The Plaintiffs' complaints about standard are, in any event, revisionist because the Plaintiffs themselves, when they came back to the Court with their suggestions for a "workable solution" indicated to the Court that they accepted the standards and, indeed, intended to exceed them;

b) The issue of uniform standards is addressed specifically in the Order. The Plaintiffs argued at the hearing that the standards the Crown and the Interveners had used for their will-says were no better, and were in some cases worse, than the standards followed by the Plaintiffs. But the Plaintiffs did not use this factor to argue for a uniform standard. There were so few will-says from the Crown and the Interveners that the Plaintiffs did not have the same concerns about defects in the will-says of the other parties. The Plaintiffs argued, in effect, that all parties had complied, more or less, with Hugessen J.'s Pre-Trial Order of March 26, 2004. If the Plaintiffs had been concerned about the will-says of the Crown and the Interveners, they had been directed by the Court to bring their concerns to the attention of the Court concurrently with the Crown's motion on will-says. They did not do this. In fact, the suggestions at the Pre-Trial Management Conference of September 17, 2004 were that any concerns the Plaintiffs might have about

other will-says were different from those of the Crown and the Interveners, and were not about standards. The Plaintiffs chose not to raise any such concerns. Here is Mr. Healey at the October 7^th hearing:

Now, I'm going to try to get back to the point, My Lord, that I was dealing with and that's the will say statements that My Friends have filed. The first thing I say is we've all complied, more or less in the same way.

(Page 148: 4 - 8)

As regards the will-say provided by Mr. Faulds:

"... quite frankly, My Lord, I have too much else to do to get ready for trial than to worry about these little issues.

(Page 133: 22 24)

c) The record clearly shows that the Court rejected the Plaintiffs' rationale for compliance by all parties because it would have led to chaos at the trial. The Court said that defects in the other will-says could not be used to measure and set the standard that the situation required. The Court suggested to Plaintiffs' counsel that the way forward lay in finding all will-says produced by all parties in breach, but Plaintiffs' counsel resisted this approach and wanted the Court to find all will-says were compliant and to hold that the Plaintiffs had met the standard imposed by Hugessen J.;

d) The will-says of the Plaintiffs were so obviously deficient and problematic for other parties that the Court could not accept the Plaintiffs' argument that the will-says of the Crown and the Interveners should be used to define the appropriate standard;

e) The Order reveals that the Court rejected any notion of a double standard and left the door open to the Plaintiffs to come back to the Court in the event that the will-says of the Crown and the Interveners became a problem for them. In other words, even though the Plaintiffs had not followed the Court's direction to bring a motion on any will-say objections at the same time as the other parties, and even though the Plaintiffs had rejected the Court's suggestion that, perhaps, all parties should be declared in breach, and even though they had indicated they were not concerned about the will-says of the Crown and the Interveners in the same way, the Court left the door open for the Plaintiffs to raise the matter again with the Court if they wanted to:

...

48. I quite appreciate that the Plaintiffs take issue with the adequacy of the witness lists and will says provided to date by the Crown and the Interveners. If the Plaintiffs are of the view that they cannot prepare adequately for trial because of what has been produced by the Crown and the Interveners, then they should come to the Court for relief rather than using alleged inadequacies in the materials of other parties as an excuse for submitting their own deficient lists and will says. My review of the materials submitted by other parties in this regard suggests that any problem is nowhere near the magnitude of what the Plaintiffs have caused by their naming 150 potential witnesses and producing no meaningful will says. But the Plaintiffs do not say that the materials produced by others are a real problem for them, and that issue does not have to be dealt with as part of this motion.

...

f) This approach was, belatedly, taken up by the Plaintiffs. One of the motions pending before the Court, and in abeyance because of this motion, is a request by the Plaintiffs that the Court address perceived deficiencies in the will-says of the other parties. However, that motion may be unnecessary. In a letter to the Plaintiffs of December 15, 2004, the Crown made it clear that it was willing to assist the Plaintiffs with will-say problems:

We acknowledge receipt by facsimile on Friday, December 10^th, of your Motion brought pursuant to Rule 369 regarding the Crown's and Interveners' witness lists and will-say statements. We believe that it may be possible to agree upon a course of action, rather than require another motion to be determined by the Court. We were surprised by your motion as we were of the understanding that any motion by the plaintiffs regarding will-say statements was to have been brought concurrently with our previous motion. Notwithstanding that, if the parties are able to agree about how to deal with your concerns, we would prefer to follow that route, rather than more interlocutory proceedings.

We have no objection to providing you with a more comprehensive will-say statement for Ms. Poitras (as we have indicated during the October 7, 2004 motion hearing when the plaintiffs asserted that they felt the will-say statement of Ms. Poitras was inadequate). We will be requesting Ms. Poitras to review her statement and provide more detail and will endeavour to provide you with a revised will-say statement by January 8, 2005 as sought in your motion. We also have no objection to you bringing a motion by January 14, 2005 should the plaintiffs wish to challenge that will-say statement, to be heard simultaneously with any motion that the Crown may bring in respect of the plaintiffs' proposed evidence.

[269] Based upon what the record reveals, no reasonable person would think that the Court was applying a double standard or colluding with the Crown and the Interveners in any way. The record and the reasons of October 18, 2004 reveal the Court attempting an orderly approach to full pre-trial disclosure so that no side would be exposed to trial by ambush.

[270] It is also a significant contextual detail that, at the time the Plaintiffs produced their deficient witness list and will-says on September 15, 2004, they had not, in fact, interviewed their witnesses. Quite how many they had not interviewed is still not absolutely clear, but the following exchange occurred at the cross-examination of Mr. Healey for this motion:

Q. Did you have any individual will-says finished by September 15, 2004?

A. I didn't have any - I suppose when you look at the Oral History Summary, which basically comprised Mr. Starlight's will-say, I suppose that's an individual will-say, but what we did is we tried to categorize the witnesses in the areas that they would speak to and summarize generally what it is they would speak to.

Q. I'm aware of what we got.

(Cross-examination of Philip Healey, page 215:5 - 14).

Q. And as of September 14^th, 2004, had you interviewed all of your proposed witnesses and obtained particulars of the evidence that they would provide for the purposes of preparing those will-says?

A. As of September 14^th, had I interviewed them?

Q. Had counsel for the plaintiffs, whether it's you, Ms. Twinn, anybody on your legal team? Had that work all been done as at September 14^th?

A. I can't say that every witness was interviewed, no.

(Cross-examination of Philip Healey, page 94:14 - 22)

This matter is obviously something Mr. Healey does not want to talk about in any detail. It is an issue that he has avoided clarifying for the Court.

[271] It is difficult to see how the Plaintiffs could argue before the Court that their will-says were compliant with Hugessen J.'s Pre-Trial Order when they had not interviewed witnesses and so could not know what any particular witness would say.

[272] In general, what the record reveals is that the Plaintiffs were very much of the view that the lead up to the trial, and the calling of witnesses at the trial, would be in accordance with their own needs. They had a fixed idea in mind as to how they were going to organize and cull their witnesses from a pool of possibilities. They argued that their approach was compliant with the Pre-Trial Order and would cause no problems for the other parties. But they had not revealed what they planned to do until September 15, 2004, and, when problems were raised, instead of looking for an approach that would work, they just insisted they could do as they wished and the Court had no right to interfere.

[273] As the record produced as part of this motion shows (and this is part of the context for a reasonable person to consider), this was not the first time the Plaintiffs had tried to insist that the Court must follow their approach to trial preparation.

[274] Another highly significant factor for the reasonable person to consider is that the Plaintiffs did not appeal Russell J.'s October 18, 2004 Order striking their will-say statements, or raise at the time any concern about an apprehension of bias.

November 25, 2004 - The Plaintiffs' Suggestions for a Workable Solution

[275] The best way for the reasonable person to understand the purpose and the context of the November 25, 2004 Order and reasons of Russell J. is to look at what the Plaintiffs proposed as a "workable solution" to the problems that their breach of the March 26, 2004 Pre-Trial Order had created.

[276] The Plaintiffs' proposal was set out in their Notice of Motion:

(a) the Plaintiffs will serve revised will say statements on or before December 14, 2004, to be served as they are completed;

(b) if the Crown has any concerns with respect to the will say statements, they shall advise the Plaintiffs promptly so that they can be addressed by the Plaintiffs;

(c) the Plaintiffs have and will continue to serve the will say statements to the Interveners. Any concerns of the Interveners will be considered by the Plaintiffs. However, the Plaintiffs' response to any such concerns raised may depend upon the permitted scope of intervention; and

(d) if the Crown feels their concerns have not been addressed, they may seek the direction of the Court in writing for a determination. The Interveners' role concerning the Plaintiffs' will-say statements will, we believe, be defined and the Plaintiffs will, of course, act accordingly.

[277] This shows that the Plaintiffs were fully aware of the two issues besetting the Court at this time: the need for the Plaintiffs to correct their own default and produce adequate will-says; and the need to allow time for the Crown to raise its concerns about the will-says and their relevance for the pleadings.

[278] It also shows that the Plaintiffs were fully aware of the connection between their will-says and the Crown's declared concerns (raised at the September 17, 2004 Trial Management Conference) over scope and relevance.

[279] The Plaintiffs offered the following rationale for their "workable solution":

(a) the proposal will result in will say statements that comply with the Reasons for Order of October 18, 2004;

(b) the proposal addresses the concern of the Court that counsel have adequate will says for preparation for trial and for effective trial procedure, as the will say statements will be provided at least one month before trial;

(c) the proposal sets out a mechanism for any concerns about the will say statements to first be discussed by counsel before raising them with the Court;

(d) it is submitted that there is no prejudice that will arise if the proposal is approved;

(e) it is unlikely that there will be a delay of the trial if the Plaintiffs' proposal is approved; and

(f) the Plaintiffs will have the opportunity to call witnesses to support their case and ensure all relevant evidence is brought before the Court at trial.

[280] But other contextual matters from the record are required to enable the reasonable person to judge the practicality of this proposal.

[281] First of all, the proposal shows that the Plaintiffs were of the view that they could correct their default and produce compliant will-says by December 14, 2004. They were queried on the viability of this date at the hearing, but provided reassurances to the Court and the other parties that December 14, 2004 was a workable date for them.

[282] Secondly, at the same time as establishing their own date for the completion of the will-says, the Plaintiffs suggested that the best way to handle any concerns of the Crown was to have the Crown discuss those concerns with the Plaintiffs first, before raising them with the Court. The reasonable person knows at this stage that the Crown is extremely concerned to have the Court review the will-says in conjunction with the pleadings, so that issues of relevance can be addressed. The reasonable person also knows that the Plaintiffs have repeatedly insisted that they have an absolute right to call any evidence they wish at trial and that neither the Court nor the Crown can interfere with that right. So the reasonable person knows that there would be absolutely no point at all in the Crown raising its concerns with the Plaintiffs first; the Plaintiffs had already given their position on the Crown's concerns. And that position was that the Crown should not even be raising scope and relevancy issues pre-trial, notwithstanding Mr. Henderson's advice to the Court at the Trial Management Conference of September 17, 2004 that is was "absolutely" appropriate that important matters related to relevance should be raised and resolved before the trial.

[283] Thirdly, the reasonable person would notice that the Plaintiffs proposed no change in the trial date. In fact, the transcript of the hearing shows the Plaintiffs urging the Court to keep the January 10, 2005 trial date, and their becoming indignant when other parties suggested the trial date needed to be changed to give all parties the time they needed. This reveals that the Plaintiffs, while allocating to themselves the time they said they needed to complete their will-

says, wanted the Court to ensure that the Crown would have roughly 26 calendar days (but far fewer because of the Christmas holiday season) to review the will-says, prepare and bring the Crown motion to the Court on scope and relevance, and prepare for trial.

[284] It also has to be borne in mind that, at the time this proposal was placed before the Court, the Plaintiffs had produced a mere 18 will-says for the approximately 150 witnesses they said they needed to call. Thus no one but the Plaintiffs had any idea what the remaining 132 would contain.

[285] In other words, the proposal was a squeeze: the Plaintiffs allocated to themselves the time they needed but, as regards the Crown's right to preparation, and the Crown's intentions to place scope and relevance issues before the Court, the Plaintiffs proposed something that was entirely unworkable and that, if adopted by the Court, would ensure that the Crown would not have time to either prepare for trial or to bring its motion before the trial began. The Court felt that the Plaintiffs were using their own breach to gain a strategic advantage. Instead of producing will-says on September 15, 2004, they would now produce them on December 14, 2004, the trial would still go ahead on January 10, 2005, and the Crown would, in effect, be prevented from bringing its scope and relevancy concerns before the Court. The Court felt that this was a gross exercise in opportunism by the Plaintiff and, in its reasons, said so in no uncertain terms.

[286] The Crown and the Interveners pointed out that the Plaintiffs' proposal was not a "workable solution" and the Crown asked, once again, that the Court simply move forward to the trial on the basis of relevant portions of the record of the first trial.

[287] And, once again, Russell J. refused to accept the Crown's approach, took control of the situation and, set up a scheme for achieving the desired objectives of allowing the Plaintiffs to produce their will-says and allowing the Crown to raise its concerns. That scheme is set out in the Order of November 25, 2004.

[288] The Plaintiffs now say that the schedule set out in the Order of November 25, 2004 creates a reasonable apprehension of bias because it appears to show Russell J. acceding to the Crown's agenda, and colluding with the Crown and the Interveners to force the Plaintiffs to produce will-says by December 14, 2004, while allowing the Crown the time it needed to challenge the will-says.

[289] The Plaintiffs say that Russell J. knew that the December 14, 2004 date was not realistic for what the Plaintiffs had to do and that it, effectively, would shut out (an as yet unidentified amount) of the Plaintiffs' evidence on self-government. In other words, the Plaintiffs now allege that the November 25, 2005 Order creates a reasonable appearance of Russell J. squeezing the Plaintiffs, and then setting up, and encouraging, a scheme to allow the Crown to challenge whatever will-says the Plaintiffs were able to produce by December 14, 2004.

[290] Once again, such an interpretation is only possible if the record is avoided or misread, and if the reasonable person is not made aware of the following facts:

1. The December 14, 2004, date for the Plaintiffs' will-says came exclusively from the Plaintiffs. It was the date which they assured the Court they could work to;

2. The Plaintiffs were actively encouraging the Court to retain the January 10, 2005 trial date;

3. The Plaintiffs have not said that the December 14, 2004 date excluded significant amounts of their evidence until they said it in Court as part of this motion. It is revisionist;

4. The Court, while concerned to ensure that this matter proceeds to trial as soon as possible (if the Court were not concerned with this after 19 years of litigation, an aborted first trial, and almost eight years of case management to get to the re-trial, it would be seriously derelict in its duties), has not refused extensions of time where they have appeared reasonable, and the Plaintiffs themselves have been significant beneficiaries of this approach;

5. The Plaintiffs never raised with the Court the need to adjourn the trial:

Q. Mr. Healey, did you ever ask for an adjournment of the date of the commencement of the trial?

A. I don't believe I did.

(Cross-examination of Philip Healey, page 213: 8 - 10);

6. Not for the first time, the Crown indicated an adjournment would be appropriate:

Is this a workable solution? No, it isn't. And the reason it isn't, basically, is that it utterly fails to address the prejudice to the Crown caused by the Plaintiffs' initial failure to file proper will says. The loss of trial prep time the Crown was counting on is lost unless the trial is adjourned to take account of it.

(Mr. Kindrake, page 46: 14 - 20)

[291] In accordance with their approach of seizing upon quotations and using them out of context, the Plaintiffs also cite the following words from paragraph 18 of the November 25, 2004 reasons to suggest that the Court appears to have succumbed to Hugessen J.'s attempts to contain the issues at the re-trial:

[T]he Court is no longer willing to accept on trust that the Plaintiffs require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the court issues.

[292] Even yanked violently out of context, these words do not mean what the Plaintiffs say they mean. A voluminous record covering the same issues does not mean that they are the only issues or that the Court is not open to new evidence on new issues.

[293] But the Plaintiffs do not even compare these words with paragraph 2(b) of the Order itself which says "the fact this is a re-trial and there is an extensive record of evidence available from the first trial on many of the same issues - including oral history evidence- and evidence at the second trial should not duplicate evidence already given and available." This provision is a clear indication that the Court does not regard the issues in the first trial and the issues in the re-trial as being entirely coterminous. Yet the Plaintiffs appear to believe it would be of no interest to the reasonable person, because they ignore it entirely.

[294] The Plaintiffs' proposal was not a "workable solution." As the record shows, this was not the first time that progress towards trial had been impeded by entrenched and unaccommodating positions. The Court explained the whole problem in paragraph 9 of its reasons, which I repeat here for convenience:

...

the history of the action indicates that repeated Court intervention has been necessary to avoid procedural quagmires and tactical stand-offs.

...

[295] I believe that, viewing the whole context and the record, the reasonable person would conclude that the November 25, 2004 Order accomplished the following objectives:

1. It gave the Plaintiffs the time they asked for to produce their witness list and will-says;

2. It gave the Plaintiffs an additional period of time after December 14, 2004 to explain why they needed all the new evidence they claimed they needed;

3. It set up a schedule for the production of materials in the event that the Crown decided to challenge the will-says that the Plaintiffs produced;

4. It took the pressure off both sides by allowing for consultation to set a date for any hearing on the will-says and their relevance;

5. It removed the concerns about time crunching for both sides by adjourning the January 10, 2005 trial date to a new date that would be "set by the Court following the resolution of the matters referred to in the order and any further representation

from the parties concerning required preparation time following the motion and any decision made concerning the motion."

[296] Of course, in light of the history of this file, any adjournment of the trial date has to raise concerns about even more delays. So the Court says "The parties should anticipate that any such adjournment period will be relatively brief and they should vigorously continue the preparation for trial accordingly."

[297] Would a reasonable person, reading this Order in the full context of these proceedings, conclude that there exists a reasonable apprehension that the Court has a predisposition concerning new issues and new evidence at the re-trial, or that the Court is colluding with the Crown and the Interveners to prevent the Plaintiffs from having the time to produce the evidence they need to prove their case at the trial? Once again, I think not. I think the reasonable person, fully informed, would conclude that, notwithstanding the opportunistic and unaccommodating attitude of the Plaintiffs, Russell J. was determined to ensure that the Plaintiffs' right to call new evidence be kept alive, and that the matter would proceed to trial in an orderly manner, and that the concerns and interests of both sides would be protected.

[298] It was at this point, having realized that their proposal to exclude the Crown motion on pleadings and relevance had not worked, and that Russell J. was not going to simply accede to the Plaintiffs' insistent assertion that the Court could not address relevancy issues pre-trial, and

that he must allow the Plaintiffs to call whatever evidence they wanted at the re-trial, that the Plaintiffs made the decision to allege apprehended bias against, at least, Russell J.. It was on December 6, 2004, that the Plaintiffs first raised the issue of reasonable apprehension of bias when they appealed Russell J.'s dismissal of their motion and proposal for a workable solution. Having made this decision, Plaintiffs' counsel did not inform the Court or the other parties of such an appeal or of the apprehension of bias. The Plaintiffs did not raise the issue of bias with Russell J., even though they corresponded with the Court on other matters and even though they appeared before the Court on December 13, 2004, in a de bene esse hearing. Notice of Appeal of the November 25, 2004 Order, containing the allegation of apprehended bias was not served on the Crown and the Interveners until December 16, 2004. Notification of a planned recusal motion was not raised until January 7, 2005.

[299] The Plaintiffs do not explain these facts convincingly in either their written or oral argument. Yet they are an important part of the context for a reasonable person to consider. The only explanation offered for this tardiness occurs in the affidavit of Mr. Healey at paragraph 20:

The allegation of apprehended bias was first raised in a notice of appeal. It could not be put immediately to Russell J. because the Plaintiffs were pre-occupied with attempting to comply with Orders that Russell J. had made. They focussed their efforts on complying with those Orders at the time.

(Affidavit of Philip Healey, paragraph 20)

[300] So the suggestion is that, although the Plaintiffs were able to file their appeal raising apprehended bias in Russell J.'s November 25, 2004 Order by December 6, 2004, they could not

notify the Crown or bring the matter before Russell J. because they were too busy complying with Russell J.'s Orders.

[301] At this time, of course, the trial date and other deadlines had been adjourned to allow the parties time to do what they needed. It is true that the Plaintiffs were busy completing their will-says to meet the December 14, 2004 deadline. But during this time, the Plaintiffs were able to communicate with the Court and the Crown on other matters and cross-examine a de bene esse witness. Yet they did not raise the bias issue, and the recusal motion was not mentioned until much later, in January of 2005.

[302] Bearing in mind that the jurisprudence of this Court is to the effect that an allegation of bias must be raised immediately, and that a party that continues to participate in the proceedings without raising an allegation of bias waives their right to do so, the Plaintiffs' approach to the matter during this period is, in itself, sufficient grounds to deny this motion. See Zundel v. Canada (Human Rights Commission) (2000), 264 N.R. 174 (C.A.).

[303] However, the Plaintiffs have sought to overcome this problem by placing their emphasis on "accumulated" apprehended bias. In other words, they say there was some defining, eureka, moment when they realized that the whole history of the previous seven years could only be explained by a systemic apprehended bias within the Federal Court that manifested itself in a particularly virulent form with Justices Hugessen and Russell.

[304] In his cross-examination, Mr. Healey explained how this came about:

[I]t was the conduct of Mr. Justice Russell that created the concern before trial and that all resulted with our reviewing the entire record and that's, in essence, how it unfolded.

(Cross-examination of Philip Healey, page 13: 17 - 20)

[305] In his cross-examination, Mr. Healey also tried to renege somewhat on the position set forth in the Memorandum of Argument as to the extent of the concerns about the Federal Court as a whole:

There's been three Judges who we've dealt with. It's something that's resulted with great expense and time. We're concerned that a fourth Judge may be infected.

We're not saying that the entirety of the Federal Court is infected ... .

(Cross-examination of Philip Healey, page 19: 25 to page 20: 4)

[306] Counsel for the Crown made a concerted attempt at Mr. Healey's cross-examination to pin down the defining, eureka, moment when Mr. Healey decided that an apprehension of bias existed.

[307] It appears to have been connected to the de bene esse hearing on December 13, 2004:

He [Russell J.] made a number of rulings on that day dealing with will-says and the fairness of treatment between the parties. And he started talking about how there needs to be fairness and one set of rules for everyone. So those are the things I'm talking about, not the way he treated us.

(Cross-examination of Philip Healey, page 105: 4 - 10)

[308] So the apprehension grew, not out of Russell J.'s conduct, but out of the rulings he made on December 13, 2004. Those rulings were to the effect that it was not appropriate during examination in chief of Ms. Peshee to stray outside of the will-say statement provided for her into areas and topics that counsel for the Plaintiffs would not have expected to have to deal with from reading her will-say. Russell J. also made it clear that he was not impressed by the arguments of Mr. Faulds, who was conducting examination in chief, that Ms. Peshee's will-say didn't have to indicate everything she would say. Bearing in mind the discussion on will-say standards that had taken place when the Plaintiffs' will-says were criticized in November, 2004, Russell J. rejected any argument that Ms. Peshee could now give evidence on important topics that her will-say would not have given Plaintiffs' counsel reasonable notice of. In effect, Russell J. was continuing the principal of no ambush at trial, and applying it to Ms. Peshee's evidence.

[309] So this was, says Mr. Healey in his evidence under oath, what triggered the realization of apprehended bias:

"It was after the fact that I put that together."

(Cross-examination of Philip Healey, page 105: 25 - 26)

[310] But what did he put together? Sometime after December 13, 2004 (he cannot say precisely when) he decided that Russell J. had found out about the Plaintiffs' decision to appeal the November 25, 2004 Order in which a reasonable apprehension of bias was alleged against Russell J. in relation to that decision:

I think it was sometime after I found out about the fact that he had been provided with copies of the Notices of Appeal ... . So at that point I put it together that he had copies of the - or was getting copies of the Notices of Appeal. I didn't know that before.

(Cross-examination of Philip Healey, page 106: 25 to page 107: 8)

[311] So this was the epiphany. Sometime in late December 2004, or early January 2005, Mr. Healey decided that Russell J. had found out about his December 6, 2004 Notice of Appeal alleging an apprehension of bias, and had made rulings in his favour on December 13, 2004 as a result of that knowledge.

[312] And that is the spark for the whole theory of apprehended bias stretching back through Russell J. and Hugessen J. to Muldoon J..

[313] What it does not explain, of course, is why, if he only decided there was an apprehension of bias after December 13, 2004, against Russell J., he had already alleged apprehension of bias against Russell J. in his December 6, 2004 Notice of Appeal against Russell J.'s November 25, 2004 Order, or why he didn't bring that allegation before the Court, or at least alert the Court and the parties when there was ample opportunity to do so. How can there be an epiphany after December 13, 2004, when there has already been an allegation of apprehended bias prior to December 13, 2004?

[314] It also does not explain why there is any inconsistency between the position Russell J. took on Ms. Peshee's will-say during the December 13, 2004 de bene esse and the position he had taken earlier on standards in the Plaintiffs' will-says, when both decisions were based upon the principle of no ambush at trial.

[315] The theory is that the reasonable person would conclude that there was an apprehension of bias on the part of Russell J., as manifested in his December 13, 2004 rulings, because those rulings were motivated by knowledge of the December 6, 2004 Notice of Appeal alleging an apprehension of bias. The reasonable person would then see, the Plaintiffs argue, that Russell J.'s apprehended bias was the result of decisions, obiter remarks, and aggressive and unusual treatment of Plaintiffs' counsel by Hugessen J. and that, in turn, Hugessen J.'s attitude to the Plaintiffs was derived from the treatment of Muldoon J. by the Federal Court of Appeal.

[316] This is very flimsy material with which to try and hold up and support such a broad-spanned suspension bridge.

[317] The only sense that can be made of this argument by the Court is that the implication is that Russell J. displayed an apprehension of bias in his November 25, 2004 decision, and that apprehension was confirmed on December 13, 2004, when he made rulings in favour of the Plaintiffs concerning the relationship between Ms. Peshee's will-say statement and the topics that she was allowed to speak to during the course of examination in chief.

[318] But even this does not explain why the Plaintiffs did not bring forward their bias allegations in a timely manner, and it does not explain how Russell J.'s principled approach to will-says, as it manifested itself on December 13, 2004, would form any basis for a reasonable conclusion of apprehended bias. And it leaves entirely out of account the fact that Russell J. had accepted arguments put forward by the Plaintiffs, and made rulings in their favour, before December 6, 2004.

[319] Mr. Shibley also took the position in his oral presentation that the Court could not rule on relevancy issues before the trial:

MR. SHIBLEY: Yes, it is, My Lord, because until - see, if there is an order that has the effect of precluding the calling of evidence of a certain witness, how can there be a determination in the absence of knowing what his evidence is, whether its relevant to the matters in issue, whether it's new and different from the evidence he may have given at the first trial

...

And he's got to wait. You have to have the clearest evidence of irrelevancy to say that he's not go give evidence.

(Transcript of hearing page 85: 19 to 86:2 and page 86:7 - 10)

[320] This argument neglects the fact that the Court has not made a ruling excluding the evidence of any witness for whom the Plaintiffs provided will-says by December 14, 2004. The Court has made rulings dealing with the Plaintiffs' breach of Hugessen J.'s Pre-Trial Order of March 26, 2004 that are intended to ensure that the Plaintiffs are given the opportunity to rectify

that breach in a timely manner, and the Court has imposed a schedule to allow it to hear the Crown motion on scope and relevancy.

[321] Mr. Shibley is here arguing the Plaintiffs' position in the pending Crown motion and is accusing the Court of doing something ("precluding the calling of evidence of a certain witness") that is has not done and may not do unless, of course, the Court accepts the Plaintiffs' revisionist argument advanced for the first time in this motion that, by setting the December 14, 2004 date for will-says, the Court prevented the Plaintiffs from calling witnesses they want to call. But this argument has never been raised with the Court before. The Plaintiffs have never told the Court before this motion that their own December 14, 2004 deadline deprived them of the right to marshall their evidence on self-government.

[322] At the very least, both parties need to know what the Court says the issues are in the pleadings, so that they can organize their evidence accordingly. Whether or not the Court has the ability to make any ruling on evidence prior to hearing an individual witness, or all witnesses, who the Plaintiffs intend to call has yet to be argued in full before the Court, and the Court has made no ruling in that regard. At the time of the November 25, 2004 Order, the Plaintiffs had only produced 18 will-says, out of the approximately 150 indicated. So, even if the Court had felt disposed to review the Plaintiffs' will-says for relevancy, there were few materials available on that issue. And the Court specifically says in that Order that "I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will-say

statements produced to date by the Plaintiffs, except that the Court must acknowledge the clear indication that challenges are likely to be made and that they may well be made before the trial."

[323] The record could not be clearer that the Court has declined to look at the scope and relevancy issues until all of the will-says are produced and a full hearing has taken place.

[324] I believe Mr. Shibley is misreading the effect of Russell J.'s Orders that strike the deficient will-says, and which give the Plaintiffs the additional time they requested to produce will-says they should have produced in accordance with Hugessen J.'s Pre-Trial Order.

[325] Following the Plaintiffs' breach of the Pre-Trial Order, the Court has, on two separate occasions, pointedly not acceded to the Crown's request to exclude the Plaintiffs' new evidence, and has given the Plaintiffs two reprieves to produce adequate will-says.

[326] Notwithstanding that the Plaintiffs were in breach of the March 26, 2004 Pre-Trial Order and failed to come up with a "workable solution" for the problem they caused, the Plaintiffs were given the time they said they needed to produce their will-says, together with a brief explanation as to how they relate to the pleadings and the various orders that have been made to date that constrain the calling of evidence at the re-trial because of the extensive record that exists from the first trial; and unless the Crown, in its pending motion, can convince the Court that there is something wrong with those will-says, or that the Court should be excluding them on some legal

ground, then the Court is assuming that the parties intend to proceed to trial on the basis of the will-says produced by the Plaintiffs.

[327] The Plaintiffs have to produce will-says. The November 25, 2004 Order merely rescues them from their own breach and gives them additional time. The Crown's challenge, based upon scope and relevancy, has been known about since the September 17, 2004 Trial Management Conference when all sides agreed that major issues of relevancy needed to be addressed before the trial.

[328] So the only new factor introduced by the November 25, 2004 Order was the requirement that the Plaintiffs provide "a brief but adequate explanation" as to how their evidence relates to the pleadings, the extensive record from the first trial, and directions from Hugessen J. of December 8, 2000.

[329] The Court acknowledges this is a somewhat extraordinary step, but gives clear reasons as to why it is necessary under the particular circumstances of this case:

...

14. At the same time, 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. Any interference by the Court at this stage would, under normal circumstances, be unnecessary.

15. But as the history of this action has proved on several occasions, leaving the parties to follow normal procedures results in total inertia or administrative chaos. The parties - in this case the Plaintiffs - simply cannot be trusted to conduct this litigation themselves.

...

[330] If the Plaintiffs had produced compliant will-says by September 15, 2004, or if they had made full disclosure to Hugessen J. of what they intended to do, or if the Plaintiffs had acknowledged the problems of their default and worked with the Court and the other parties to correct them, or if the Plaintiffs had offered a real "workable solution" to the problems they had caused, there would have been no need for any of this. Instead, the Plaintiffs have defiantly insisted that they have complied, that they are the ones who will dictate the procedure leading to the re-trial, and that they will call whatever evidence they want to call at the re-trial. In the face of this insistence, the Court had no real alternative but to exert control and impose a process and a procedure that would allow both sides to do what they needed to do.

[331] Mr. Shibley makes the point time and again in his oral presentation that what concerns the Plaintiffs' people is that they are "not going to be permitted to present their claim for self-government. They're not going to be permitted to call all relevant witnesses." What the Plaintiffs' people do not appear to have been told is that the Court itself has not, until the hearing for this motion, been informed that the Plaintiffs have not produced all the will-says they want to produce on self-government.

[332] I have no reason to doubt that the Plaintiffs' people are worried about these matters. But if the pleadings do not encompass self-government as the Plaintiffs wish to present it to the Court, that is not the fault of the Court. The Plaintiffs' pleadings were drafted by their lawyers.

Their pleadings have been amended twice since the matter was returned for re-trial in 1997. When Russell J. made his decision in 2004 on proposed amendments, it was more than apparent to the Plaintiffs' lawyers what those amended pleadings encompassed. They accepted the scope of the pleadings allowed at that time. They did not appeal.

[333] All of Mr. Shibley's oral argument is premised upon the fact that either the present pleadings encompass the issue of self-government at large, or the Plaintiffs have an absolute right to lead evidence on self-government at large, even if the pleadings do not encompass it. The Crown has made it clear that it does not oppose all evidence on self-government. The Crown's objections relate to self-government at large.

[334] But the Court has yet to hear full argument and make a decision on these matters. The Plaintiffs cannot just insist that the Court, in this motion, accept the Plaintiffs' position on self-government in the pleadings, when that point has yet to be argued, and would have been argued by now if this motion had not intervened.

Will-Say Statements - Change of Position by Crown and Interveners

[335] Mr. Shibley also made much in his oral argument about the apparent change in the position of the Crown and the Interveners on the required standard for will-say statements.

[336] He pointed out that, when standards and compliance with Hugessen J.'s Pre-Trial Order of March 26, 2004, were argued before the Court in the context of the Plaintiffs' breach of that Order, the Crown and the Interveners said that the required standard was full disclosure (the so-called "Cadillac" will-say) while, at the de bene esse in Calgary on December 13, 2004, when the Court heard evidence from Ms. Peshee, Mr. Faulds appeared to be arguing that will-says could be something less than "Cadillac" when it came to the witnesses of the Crown and the Interveners.

[337] As the record shows, this was a matter of concern for the Court on December 13, 2004 and Russell J. bristled at any suggestion of a double standard. However, inconsistencies between what counsel may argue from one hearing to the next are not evidence of inconsistency or apprehended bias on the part of the Court. Counsel for each party can be biased in their clients favour, and usually are. This does not mean the Court accepts what they say. It also has to be borne in mind that the issue of whether or not the will-says of the Crown and the Interveners are adequate has yet to be argued before the Court. The Plaintiffs declined the Court's earlier direction to bring a motion if they had concerns and, in fact, have suggested on occasion that they are not really too troubled by the will-says of the other side.

[338] However, the Court's rulings on December 13, 2004, obviously revealed some sympathy for the Plaintiffs' complaints, although I do not believe that the issue has any real relevance for a reasonable apprehension of bias against the Court. The transcript of the de bene esse hearing shows that the Court was alive to the issue of a possible double standard, on the part of the

Interveners at least, as to what the will-says should contain. That sympathy manifested itself at the de bene esse hearing and will, no doubt, be engaged again when the Court comes to consider the Plaintiffs' pending motion to deal with the will-says of the Crown and the Interveners, assuming that motion is even necessary, given what the Crown has indicated.

[339] But the Court's disapproval of any suggestion of a double standard does not, as the Plaintiffs now try to suggest, support a reasonable apprehension that, when the Court found the Plaintiffs to be in breach of the Pre-Trial Order, the Court was being influenced by what the Plaintiffs perceive as efforts by Hugessen J., or the Crown and the Interveners, to prevent the Plaintiffs from adducing evidence on self-government.

[340] The October 18, 2004 Order is only concerned with standards applicable to will-says. They were standards that the Plaintiffs later said they accepted and, of course, there was no appeal of that Order. The standards set were derived from the Court's reading of the March 26, 2004 Pre-Trial Order and the Court's own assessment of the disclosure required in this case to ensure no ambush at trial.

[341] The October 18, 2004 and November 25, 2004 orders pointedly avoid dealing with scope and relevancy issues and, in fact, the onus is now on the Crown and the Interveners to convince the Court that the will-says the Plaintiffs have produced should be excluded for any reason.

[342] The apparent inconsistency evident in Mr. Faulds' arguments at the de bene esse hearing is related to standards alone. The Crown's position on scope and relevancy has been consistent throughout.

[343] It is true that the Crown and the Interveners did attempt to use the standards issue and the Plaintiffs' breach of the Pre-Trial Order to have the Plaintiffs' new evidence excluded in its entirety, but the Court has refused to follow that path on two separate occasions in order to allow the Plaintiffs to complete their will-says, and then move to a full hearing on scope and relevance.

[344] To this point, the Court's Orders have only addressed the rectification of the Plaintiffs' own default; and the Plaintiffs did not appeal the default decision.

[345] At the de benne esse of Ms. Peshee, Mr. Healey found himself to be the beneficiary of the principle behind the Court's October 18, 2004 decision on will-says based upon no ambush at trial. In October, 2004, Mr. Healey resisted the Court's suggestions that all will-says be examined to see if they should be declared to be non-compliant and indicated that he did not really care about the will-says of the Crown and the Interveners. He later shifted his position and has asked the Court to now look at the will-says of the other parties. But, will-say standards aside, the will-says of the Crown and the Interveners have a different significance for these proceedings compared to the will-says of the Plaintiffs. To begin with, there are so few of them.

But, more importantly, the Plaintiffs are not challenging their relevance for the issues contained in the pleadings.

[346] Apart from this, the record of the de bene esse shows that a discussion ensued between counsel about the meaning and purpose of the standards set in will-says, and how will-says should relate to the evidence actually adduced in Court at the trial.

[347] All counsel agreed that, quite apart from what had happened with Ms. Peshee, they needed to confer and discuss with the Court how the will-says provided for all witnesses should impact upon the scope of the evidence those witnesses will be allowed to give at trial and other evidence it might be necessary for them to call. That issue has yet to be resolved and is one of the many items that has been held in abeyance by this motion.

[348] The obvious answer to Mr. Shibley's argument that the Crown and the Interveners appear to have shifted their position on will-say standards is that it is irrelevant to this motion. The Court has not changed the standards it considers appropriate, and everything said and done by the Court at the de bene esse hearing was entirely consistent with the Court's insistence on full disclosure and the principle of no ambush at trial.

[349] But Mr. Shibley's argument is a little more subtle than this. He says that the Crown and Interveners were intent upon excluding the Plaintiffs' witnesses and so employed a "stratagem" to convince the Court to adopt a narrow view of the pleadings:

My Lord, it's a stratagem. This is a stratagem designed to deny the plaintiffs the right to call their case, their evidentiary base for an allegation of a right to self-government.

(Transcript, vol. 1, page 110: 20 - 24)

[350] The implication is that Russell J. was "persuaded to make orders on the strength of the submissions in October that had very severe consequences for the Plaintiffs in terms of limiting the evidence" and that he accommodated "the position of [the Crown and Interveners] in a manner that they themselves were not in compliance with and are now resiling from collectively ... ."

[351] So, in terms of an apprehension of bias, the argument is that the reasonable person would see that the Crown and the Interveners took the narrow approach to the pleadings evident in Hugessen J.'s reasons of December 13, 2000, and then turned their sights on the Plaintiffs' will-says, arguing for a standard of disclosure their own will-says did not meet, and convinced Russell J. (already primed and tainted by Hugessen J.'s attempts to contain the trial) to take a narrow view of the pleading and to exclude evidence that the Plaintiffs wanted to call on the issue of self-government.

[352] The suggestion is that, at the de bene esse of Ms. Peshee, Russell J. appears to have been suddenly alerted to what had been happening by the change in position of the Crown and the Interveners on will-say standards, and that he appears to have realized he had been led astray at the will-say hearing in October, 2004.

[353] There is an air of unreality about all of this, and I think it is worth pausing here for a while to take stock of what is being presented to the Court. Every step of the way, in order to build their case for apprehended bias, the Plaintiffs neglect to mention essential relevant parts of the record, impose skewed interpretations upon decontextualized quotations, assert revisionist facts for which there is just no evidence, and invite the Court and the reasonable person to speculate about motives and states of mind (some of which are now lost in the mists of time) that are not substantiated.

[354] If the reasonable person were to step back from this process, the only plausible conclusion about the methodology being employed is that it is an attempt to fashion some kind of conspiracy theory involving the Crown, the Interveners and the Court.

[355] But to convince a reasonable person of something, more is needed than a highly edited and skewed version of events. The reasonable person requires the whole picture. The proponent of apprehended bias must, if they want to be convincing, even draw attention to those parts of the

record which do not appear to support their thesis, and explain why their conclusions are correct, notwithstanding appearances to the contrary.

[356] Reasonable people do not make judgments on the basis of an incomplete account of the record and revisionist interpretations and unsubstantiated speculations. They also take careful note of recalcitrant witnesses who refuse to engage with inconvenient parts of the record.

[357] In fact, the methodology employed in this motion is a fact in itself that the reasonable person cannot help but take into account when assessing the allegations that are put forward and the relief that is claimed.

[358] The Plaintiffs' case for apprehended bias is both several and cumulative. In other words, they say that each instance cited is sufficient to give rise to a reasonable apprehension of bias, and the cumulative impact certainly is. The cumulative argument requires the reasonable person to connect many dots to complete the picture. At this juncture in their oral argument the dots are said by the Plaintiffs to be:

1. Muldoon J. showed a reasonable apprehension of bias at the first trial and the Federal Court of Appeal returned the matter for re-trial. This is clearly an established fact. But the grounds of the Federal Court of Appeal decision are important. The way Muldoon J. handled the first trial was not criticized and the Court said "we are unable to characterize complaints by the Appellants as to the

general conduct of the trial as giving rise to such an apprehension of bias." It was Muldoon J.'s reasons for judgment that were found to give rise to a reasonable apprehension of bias. But the Plaintiffs, in this motion, have presented no evidence to show that comments made by Muldoon J. have had any influence upon either Hugessen J. or Russell J., apparent or otherwise. All they offer is vague speculation that they have;

2. Hugessen J., as case management judge, did not like the way that Muldoon J. had been treated, and so appears to have resolved to keep the issues and the evidence in the re-trial the same as they were at the first trial. Even though he allowed amendments to the pleadings in 1998, and indicated that new evidence would be needed for those amendments, he reneged on this position and made later statements to the effect that the "issues" and the "factual matrix" had not changed and that evidence should be excluded on this basis. Those remarks, however, even if they were inaccurate, are lifted entirely out of context, and there is no evidence to suggest an appearance that they affected anything else done by Hugessen J. or Russell J.;

3. Notwithstanding the amendment to the pleading allowed by Hugessen J. in 1998, Russell J. was influenced by Hugessen J.'s post-amendment remarks, and this affected the way he handled the 2004 proposed amendments and the will-say

issue. There is no evidence to suggest a reasonable apprehension of this, and the Plaintiffs did not appeal Russell J.'s decision;

4. The Crown and the Interveners then used the words of Hugessen J. and Russell J.'s own approach to the 2004 amendments to convince the Court that the Plaintiffs should not be allowed to call evidence on self-government. There is no evidence to suggest a reasonable apprehension of this, and it is not corroborated by the record and the context as a whole. Russell J. has set up a scheme to allow the Plaintiffs to complete their will-says and to hear the Crown's concerns about scope and relevance. The Plaintiffs' present assertion that the December 14, 2004 date was imposed upon them so that they would not be able to complete all of their evidence is revisionist. December 14, 2004 was the date the Plaintiffs asked for, and they have never alleged, until this motion, that it prevented them from calling significant aspects of the evidence they needed;

5. The apparent conspiracy was exposed at the de bene esse of Ms. Peshee, when Mr. Faulds began to suggest to the Court that the Crown and the Interveners should not have to adhere to the same will-say standards that the Court had devised for the Plaintiffs. However, that hearing demonstrated clearly that the Court was committed to uniform standards and the consistent application of the

"no ambush at trial" principle it had used when establishing the standards for the Plaintiffs' will-says in October, 2004.

[359] Connect these dots, together with other matters that reinforce the Plaintiffs' argument, which I will come to, and the Plaintiffs say that the reasonable person would apprehend bias against them by the Court.

[360] The difficulty with such an approach for the reasonable person is that, for reasons already given, the dots do not exist. The only dot that can be established is the 1997 Federal Court of Appeal decision, and it has no relevance for the allegations in this motion.

[361] There is no evidence to suggest a reasonable apprehension that Hugessen J. was out to redeem Muldoon J.. Hugessen J. granted the Plaintiffs the amendments in 1998 and the pleadings as amended at that time speak for themselves. There is no evidence of a reasonable apprehension that Russell J. was influenced by later pronouncements of Hugessen J. (even if those pronouncements mean what the Plaintiffs' say they mean) when Russell J. considered the 2004 amendments. His reasons set out clearly why he disallowed some amendments and allowed others. The pleadings as amended mean what they say. The Plaintiffs did not appeal Russell J.'s decision on the amendments. There is no evidence of a reasonable apprehension that the Orders made by Russell J. in October and November of 2004 were part of a "stratagem"; they were

based upon the materials and arguments before the Court at the time and the Court has taken later positions entirely consistent with those Orders.

[362] But not only do the Plaintiffs want the reasonable person to draw a line through dots that do not exist, they fail to address the dots that clearly do exist and that, when connected, present an entirely different picture from the one they want the reasonable person to assess:

1. The Plaintiffs chose the Federal Court as the appropriate forum for their case. It was not forced upon them. They chose to bring this lawsuit;

2. Following the Federal Court of Appeal decision in 1997 to return the matter for re-trial, the Plaintiffs were granted amendments to their pleadings in 1998 to accommodate changes in the jurisprudence;

3. Discoveries and other forms of disclosure have taken place on the basis of the amended pleadings and bias has never been raised by the Plaintiffs until this motion concerning anything that Hugessen J. said or did;

4. The Federal Court of Appeal has endorsed much of what Hugessen J. ordered while he was case management judge;

5. Russell J. allowed further amendments to the pleadings in 2004 and disallowed other proposed amendments;

6. The Plaintiffs accepted Russell J.'s position on the pleadings as amended in 2004, and did not appeal or raise any apprehension of bias;

7. The Plaintiffs have yet to show that the pleadings, as amended contain a claim to self-government in the way that they now wish to address that concept. They merely insist that they do;

8. The Plaintiffs have yet to show that they have a legal right to call whatever evidence they please on an interpretation of the pleadings that the Court has not yet ruled upon;

9. Russell J. has not ruled on the scope of the pleadings and the extent to which self-government is an issue in his pleadings;

10. Russell J. has yet to rule on whether any of the witnesses that the Plaintiffs' propose to call, and for whom the Plaintiffs have completed will-says, should not be called.

[363] All of these dots are clearly established on the record, along with many others, and they show that Russell J. gives no reasonable apprehension of having been influenced by a "stratagem" and that he is clearly committed to a fair trial on the merits during which there will be no ambush from either side. I believe these are the dots that a reasonable person would connect, and that these are the conclusions a reasonable person would reach.

Pre-Judging

[364] I have already dealt with the main thrust and the principal points in Mr. Shibley's oral argument. But there are other more peripheral factors he points to to bolster his case, and these require some comment. For example, he argues that, in its reasons of November 25, 2004, the Court made three adverse credibility findings that support the Plaintiffs' case that Russell J. appears to have prejudged the issues and the evidence of the Plaintiffs' witnesses.

[365] The first finding is related to a comment which the Court made regarding the tailoring of evidence. It appears in paragraph 8 of the reasons, in that section where the Court is reciting the arguments and concerns that have been raised by each of the parties:

...

8. The Interveners also point out a number of concerns with the Plaintiffs' proposal and the will say statements produced to date, and I note, in particular, the concerns of NCCA that the party whose witnesses will go first at the trial is now disclosing its witnesses last and taking advantage of its own default by tailoring some of its evidence to meet the will says served by NCCA. The NCCA is also of the view that the Plaintiffs' will say statements produced to date contain a great deal of argumentative and collateral material that is irrelevant to the issues defined in the pleadings and that reveals that Plaintiffs' real purpose is to use the trial as a "soapbox from which they seek to advance their political agenda, making broad

political arguments in favour of aboriginal self-government, rather than focussing on the specific constitutional questions which are actually in issue."

...

[366] Mr. Shibley says that Court shows a reasonable apprehension of having imputed "a lack of credibility to, in this case, one of the chiefs, I believe, but in any event, to the will-says at large. So that that's (sic) a pre-judgment on an issue of credibility vis-a-vis witnesses." (Transcript, vol. 1, page 140: 5-9) It is difficult to see how the NCCA appears to impute a lack of credibility, let alone the Court. The NCCA is merely suggesting that it is unfair that the Plaintiffs should pre-empt the NCCA case by selecting evidence to lead at trial that responds to that case.

[367] I do not believe a reasonable person would conclude that the Court, at this stage, was making an adverse credibility finding, either against a particular witness or against the will-says generally. The Court is merely reciting concerns raised by various parties as a prelude to its own analysis. When the Court moves to its analysis, it begins with the words "I do not believe this motion is the appropriate place to examine the criticisms made concerning the content of the will-say statements produced to date by the Plaintiffs ... ."

[368] In other words, I do not think the Court could make it much clearer that it is refusing to pre-judge the will-say statements in any way. To suggest otherwise, in face of these explicit words, can only mean that Plaintiffs' counsel believes that Russell J. is lying; and, as I have already pointed out, Mr. Shibley has assured me that he accepts Russell J. was not lying. So, if

the Court's words are genuine, a reasonable person could only conclude that the Court has taken a definite stand that it will not consider criticism advanced at that time about the 18 will-says that have been produced (let alone the approximately 132 that have not been produced) and that it will not pass judgment on any of the Plaintiffs' will-says until they are all available and the Court has heard full argument.

[369] The second instance where Mr. Shibley says the Court shows a reasonable apprehension of having pre-judged something occurs in paragraph 12 of the November 25, 2004 Order:

...

12. To accept the Plaintiffs' proposal would be to accept and condone their taking an additional three months to produce a witness list and will say statements without much in the way of an explanation, other than repeated complaints that they are very busy. The Court might have been more convinced by their inadequate excuses if they had come forward to discuss the problems before default occurred, and if they had raised and explored with Mr. Justice Hugessen why it was necessary to call in excess of 140 witnesses for a re-trial of issues for which there is already an extensive record. The Plaintiffs say they need "many voices" to make their case, but until the witnesses are finally identified and the will say statements are produced, there is no way for anyone to judge whether their purpose is genuine or obstructive, or what implications this might have for trial preparation and the conduct of the trial itself.

...

[370] Mr. Shibley argues that the words "there is no way for anyone to judge whether their purpose is genuine or obstructive" reasonably appear to impute an improper motive by the Court on the part of the Plaintiffs. Even taken out of the context of the reasons as a whole, and the proceedings, it is difficult to understand how the words "there is no way for anyone to judge" could reasonably appear to impute an improper motive. Once again, the Court is pointedly

refusing to judge and is declining to assess at this stage criticism of the Plaintiffs' tactics and objectives made by other parties to the dispute. When the Court put this to Mr. Shibley at the hearing of this motion, the following exchange occurred:

THE COURT: Yes. No. I mean, we are playing with textual exegesis here in some detail of what the words might mean, and, of course --

MR. SHIBLEY: I love that expression.

THE COURT: -- you're suggesting what they could mean. Of course, they could mean several other things as well.

MR. SHIBLEY: Yes.

THE COURT: They could be referring to somebody else's idea that the plaintiff might be being obstructive and there's no way for me to tell at this stage on the evidence whether that allegation by somebody else --

MR. SHIBLEY: Well, that's --

THE COURT: Could they not mean that?

MR. SHIBLEY: Yes, it's so, but the fact that you're contemplating that it may be that they're simply being obstructive shows that you are at least giving that some thought.

THE COURT: I'm acknowledging it's been raised by somebody else, and I can't judge it, because I don't have the evidence to judge it.

MR. SHIBLEY: Okay. I'm not going to -

Transcript, vol. 1, page 165: 24 to page 166: 25]

[371] The third occasion when the Plaintiffs say the Court gives a reasonable apprehension of pre-judging the Plaintiffs' evidence occurs at paragraph 18 of the November 25, 2004 decision:

...

18. In view of the belated disclosure that the Plaintiffs intend to call in excess of 140 witnesses at trial, their breach of Mr. Justice Hugessen's Pre-Trial Order, and their failure to provide a workable solution to the problems caused by that breach, the Court is no longer willing to accept on trust that the Plaintiffs require

such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues.

...

[372] Here, the Plaintiffs seize upon the words "the Court is no longer willing to accept on trust that the Plaintiffs' require such a prodigious number of witnesses to support claims for which there is already a voluminous record covering the same issues."

[373] I have already dealt with that aspect of the Plaintiffs' argument that alleges the Court here gives a reasonable apprehension of saying the issues and the factual matrix are the same as the first trial. But, on the pre-judgment point, Mr. Shibley argues the following:

Now, this statement, My Lord, with respect, is fraught with problems. Again, it is - you're prejudging - it appears that you are pre-judging whether these witnesses are going to give evidence which is relevant and material.

(Transcript, vol. 1, page 170: 24 to page 171: 4)

[374] Once again, these words have to be viewed against the full context of the reasons, as well as the whole of the proceedings to that time. The Plaintiffs had breached the Pre-Trial Order of March 26, 2004; they had refused to acknowledge that their will-says were deficient; they had belatedly revealed that they intended to call approximately 150 new witnesses (a fact they had not discussed with Hugessen J. when the Pre-Trial Order was made); their suggestions for a workable solution had left the Crown little preparation time, and certainly no time to bring the Crown motion dealing with scope and relevancy; and at this point the Plaintiffs had produced a mere 18 will-says out of a possible 150.

[375] The Plaintiffs were insisting that they had the right to go to trial and call all of their witnesses while important issues remained unresolved. Hence, the Court's words and reasons.

[376] But, even at an out-of-context semantic level, it is difficult to see how the words "the Court is no longer willing to accept on trust" can reasonably mean that the Court is "prejudging whether witnesses are going to give evidence which is relevant and material."

[377] If these three instances of putative pre-judgment by the Court are taken together, the interpretations asserted by the Plaintiffs are pretty well the exact opposite of what the words in context actually say. Yet these are some of the dots that the reasonable person is asked to connect and use as the basis to reach a conclusion that there is an apprehension of bias.

Comments Directed at Plaintiffs' Counsel

[378] Mr. Shibley made much of comments directed by the Court to Plaintiffs' counsel. His argument is that, when these comments are connected to what Hugessen J. said about the issues and the factual matrix in the dispute, the reasonable person would apprehend that the Court appears to be encouraging the Crown and the Interveners to believe that there is no need to address self-government in the proceeding:

It appears that the combination of your comments and those of Justice Hugessen regarding what the central issue is in the factual matrix taken in combination with your rulings and your treatment of plaintiffs' counsel come together and create an

appearance of the respondents believing that they can completely eliminate the need for them to address self-government as an issue in this proceeding.

(Transcript, vol. 2, page 16: 11 - 20)

[379] I have already addressed the issue of whether Hugessen J.'s comments in his reasons of December 13, 2000, can reasonably be apprehended to have had any impact upon Russell J.'s Order of June 29, 2004 dealing with proposed amendments to the proceedings. The points of reference for that Order are clearly set out in the reasons and, in any event, that Order was not appealed and is res judicata.

[380] Mr. Shibley asserts often that his is not attacking the orders made in these proceedings or asking that I now set them aside. He says those orders are just facts and his concern is to show that the content and effect of the orders can be tracked and, when they are, they give rise to a reasonable apprehension of bias:

So we're not trying to reverse those orders on this application. What we are saying, though, is that the implications - and the circumstances surrounding the making of comments and the making of the orders per se, that's all germane and relevant to the issue on this application, because they are all factual circumstances that are deemed to be known by the reasonable person.

...

To say it's res judicata, sure it's res judicata, but so what? To say it wasn't appealed, so what?

(Transcript, vol. 2, page 29: 25 to page 30: 24)

[381] I do not accept this argument because, if I recuse myself, the effect will be to set orders I have made aside. And some of those orders the Plaintiffs have accepted and have not appealed. So the orders are being attacked and the method being used is recusal, as a result of which the Plaintiffs will be able to argue the points all over again with a new judge without having to bother with the inconvenience of an appeal. And this time, they want to have a say in choosing who that judge will be.

[382] So res judicata is not a merely "technical" issue as the Plaintiffs suggest. If the Plaintiffs can by-pass the Federal Court of Appeal and argue an issue de novo before a judge whom they approve, then res judicata disappears as a cornerstone of our judicial system.

[383] So, contrary to the Plaintiffs' claims, this is very much a collateral, rear-guard attack upon the Orders of Russell J..

[384] I have also made it clear that Plaintiffs' counsel must have been fully aware of the impact of my June 29, 2004 Order for whatever form of self-government evidence and argument the Plaintiffs' wish to bring before the Court. And yet, knowing this, the Plaintiffs did not appeal.

[385] To accept Mr. Shibley's argument would be to accept that Plaintiffs' counsel was not aware of the impact of my June 29, 2004 Order at the time it was made, but has only come to a realization of its import later through the accumulation of other facts and statements by the Court. I do not believe a reasonable person would be persuaded by that argument.

[386] So, in any discussion of comments directed by the Court at Plaintiffs' counsel (and I will shortly come to those comments), the other dots are just not there.

[387] Mr. Shibley also urged upon the Court that Russell J.'s attention gives a reasonable apprehension of having been diverted from the main issues in the proceedings through having to deal with counsel's conduct. He often says in his argument that Russell J. reasonably appears to have been annoyed or "upset" and to have punished the Plaintiffs when he should have been protecting their fundamental right to call evidence on self-government:

I think that what happened in this case, and I respectfully submit this, is this: There was so much upset about the timetable being interfered with or disturbed by what you viewed to be inadequate will says that the focus of the Court was diverted from what should have been a more fundamental endeavour, and that's the one I'm talking about.

(Transcript, vol. 2, page 122: 12 - 20)

[388] So what is the basis for this claim, and what does the record tell us about Russell J.'s attitude?

[389] In any examination of the Court's comments directed at Plaintiffs' counsel, the reasonable person would need to know that the Court has been confronted by Plaintiffs' counsel who, at times, can be somewhat insistent, and that approach is on full display in the written materials that have been submitted with this motion.

[390] However, the best place to begin to address Russell J.'s conduct and demeanor is, perhaps, the Plaintiffs' own offerings on this point. In cross-examination, Mr. Healey had the following to say about Russell J.'s general approach in Court:

A. I guess what I'm saying is that I don't believe that Mr. Justice Russell has a personal bias against me as a lawyer, but I have an apprehension, my clients have an apprehension, and I think it's more tied to the position that we represent in this case, not the fact that I'm the lawyer on the case.

(Cross-examination of Philip Healey, page 18: 17 - 23)

[391] So there is no apprehension of a personal animus directed towards Mr. Healey by Russell J.; the problem is that Russell J., if he has shown apprehended bias, has shown it towards the "position" of the Plaintiffs.

[392] But, as regards, the actual reasonable apprehension of "upset" that Mr. Shibley detects, it does not appear to manifest itself in court, because Mr. Healey confirms as follows:

A. No, I would agree that I was treated with appropriate courtesy while I was in front of him.

(Cross-examination of Philip Healey, page 26: 5 - 6)

[393] So the reasonable apprehension of "upset" must come from the reasons, and Mr. Healey confirms this:

A. When I say that I'm surprised at the tone of his Reasons, I make a submission, I don't get questioned on the submission, nor does he express concerns with me that he has on the submission that he later raises in his Reasons. So I don't get an opportunity to deal with that, and that's why I'm surprised at the tone of the Reasons, and we've all read his Reasons.

(Cross-examination of Philip Healey, page 25: 14 - 22)

[394] I will come later to what the record shows about the Court raising matters with Mr. Healey. However, at this juncture, the Court wishes to deal with Mr. Shibley's oral argument about "upset." So the reasonable apprehension of "upset", if it exists, appears to be in the reasons alone.

[395] Mr. Shibley had the following to say about those reasons:

[A]nd I must say, My Lord, it was a pleasure reading your reasons in the sense that they're clear and deal with the matter in a structured way. But on the other hand, the force of those reasons are sometimes very difficult to accept.

[Transcript, vol. 1, page 152: 11 - 16]

[396] So it's the "force" of the reasons that seems to be evidence of a reasonable apprehension of "upset" that has diverted the focus of the Court and created the reasonable appearance of its having over-looked the rights of the Plaintiffs. The force of the reasons might be contained in the words themselves, or in the effects.

[397] As regards the effects, it is not clear to the Court what the Plaintiffs mean other than they do not like it when the Court does not see things their way. The Court has made decisions that accept arguments advanced by the Plaintiffs, and it has made decisions that reject the Plaintiffs' arguments. The Court has done the same with the Crown.

[398] As regards the words themselves, Mr. Shibley has pointed to several phrases that he believes were inappropriate, or disproportionate, and which he says had an adverse impact upon the Plaintiffs' ability to call evidence on self-government because they give the reasonable appearance of having encouraged counsel for the Crown and the Interveners to believe that the Court was pre-disposed against the Plaintiffs.

[399] As regards courtroom conduct, Mr. Shibley assures the Court that he understands how the Court could be "upset", but Russell J. should not have allowed this to divert him:

And that's the part that really worries me. It really worries me that you were distracted by what was going on. And that's why I said what I did. I abhor that kind of courtroom atmosphere and conduct.

(Transcript, vol. 2, page 137: 24 to page 138: 2)

[400] To be entirely fair to Mr. Shibley, he has never seen the courtroom conduct he is addressing here. And also to be fair to him, his knowledge of that conduct, and indeed of just about everything alleged by the Plaintiffs, is derived from Ms. Twinn and Mr. Healey, and it is Mr. Healey's conduct, and only Mr. Healey's conduct, that is addressed in the Orders of Russell J.:

THE COURT: And of course I have noticed throughout, and I think you've made it clear to me, you haven't hidden the fact that you have been highly dependent upon Mr. Healey and Ms. Twinn's assistance and their familiarity with this file?

MR. SHIBLEY: Yes.

THE COURT: And you've not been able to review the whole record yourself?

MR. SHIBLEY: No.

(Transcript, vol. 2, page 142: 18 to page 143: 2)

THE COURT: But the argument you've made is essentially their argument?

MR. SHIBLEY: Well, it is, but it has been made in my manner.

(Transcript, vol. 2, page 144: 8 - 11)

[401] So the whole notion that Russell J. might be reasonably apprehended to have been "upset" and not to have protected the Plaintiffs' rights is basically derived from the Plaintiffs' lawyers and, for reasons I have already given, this has to be considered a most dubious source of information on this topic.

[402] When the Court asked Mr. Shibley whether he would caution the Court in any way about using the materials that had been prepared by Ms. Twinn and Mr. Healey, his response was as follows:

MR. SHIBLEY: I don't think so, My Lord, no.

I think, first of all, although they are witnesses, they are still officers of the Court. They have a - in my view, if I were in that position, I would not consider I had any less obligation to ensure that the material was fulsome and accurate.

(Transcript, vol. 2, page 143: 14 - 21)

[403] When the Court was reviewing this issue with Mr. Shibley, it did not have the familiarity with the Plaintiffs' materials that it now has; otherwise, the Court would have drawn the following juxtaposition to his attention:

(a) Judicial Criticism of the Federal Court

15. The Federal Court was the subject of judicial criticism in the seminal case of Paulette. In that case, where First Nations of treaty 8 and treaty 11 were being allowed by a Court of the Northwest Territories to present their oral history evidence concerning the meaning of those treaties and were taking the position that the extinguishment clauses in those treaties did not provide the Crown with a legal right to the land, (i.e. the aforestated warning included in the Report of the Royal Commission on Aboriginal Peoples as set out below), a Federal Court judge attempted to assume jurisdiction of the case in the middle of the trial. The presiding judge, Morrow, J., would not allow it. He criticized the Federal Court judge. He found that the actions of the Federal Court ran "the risk of throwing a cloud on the reputation of the Federal Court" in that it "may give the public the impression that the Federal Court can be made to jump whenever asked to by the federal Government".

Paulette, supra, per Morrow J.

[404] This is paragraph 15 of the Plaintiffs' Memorandum of Argument prepared by Ms. Twinn and Mr. Healey.

[405] The words quoted by Plaintiffs' counsel are taken from paragraph 9 of the judgment of Morrow J. in Re Paulette et al and Registrar of Titles (No. 2), 9 C.N.L.C. 307 (N.W.T.S.C.), which reads as follows:

By having the Federal Court appear in Yellowknife, not only does this Executive act threaten the very integrity and independence of this Court, but by the same token it runs the risk of throwing a cloud on the reputation of the Federal Court, which is manned by respected and able Judges, in that the government by insisting on these proceedings being heard may give the public the impression that the Federal Court can be made to jump whenever asked to by the Federal Government.

[406] This is not the only example of selective, elliptical quotation and idiosyncratic interpretation found in the Plaintiffs' materials, but I cite it here to show what happens when counsel are wearing too many hats, and I do not believe that the Court can embrace such

"fulsome and accurate" materials in the way recommended by Mr. Shibley. Paragraph 15 is not an appropriate way for an officer of the Court to present information to the Court.

[407] The only reliable material the Court has at its disposal as regards comments addressed to Plaintiffs' counsel is the Court record and, in particular, the reasons and Orders.

[408] The whole notion of Russell J. showing a reasonable apprehension of having been "upset" appears to relate to a few phrases contained in his reasons and a warning to Mr. Healey to desist from ad hominem attacks upon opposing counsel.

Spurious and Disingenuous

[409] The Plaintiffs complain about the use of the words "spurious and disingenuous" that appear in paragraph 46 of Russell J.'s reasons of October 18, 2004. However, the words can only be understood in the broader context of the reasons and the attitude of Plaintiffs' counsel at the hearing of the motion to consider the failure to produce a witness list and will-say statements in accordance with Hugessen J.'s Pre-Trial Order of March 26, 2004. Much of the October 18, 2004 Order has already been quoted, and I will merely for convenience reproduce the paragraph where the offending words appear:

least expensive determination of this proceeding occurs on its merits. The Plaintiffs appear to think they can merely do as they wish. The history of this file is replete with warnings. In an order dated March 6, 2002, Justice Hugessen had the following to say:

I am driven to the regretful conclusion that the parties are simply incapable or cannot be trusted to conduct this litigation themselves, even when case managed.

This is a sorry state of affairs that this motion reveals has not changed.

[410] The Plaintiffs advance the following objections to the Court's use of the offending words, although "spurious" is the one that appears to have particular significance for Mr. Shibley:

1. There was no factual basis for such a finding;

2. The reasonable person does not separate a spurious argument from a spurious person, and so is likely to think the person advancing the argument is false;

3. The conclusion was not warranted by the circumstances;

4. Before coming to such a conclusion the Court is obliged to afford counsel the opportunity to speak to the matter.

[411] All dictionaries make it clear that the meaning of the word "spurious" varies depending upon application.

[412] The Oxford English Dictionary, for instance, tells us that when the word "spurious" is applied to a person, it doesn't mean they are dishonest, it means "begot or born out of wedlock... ." When applied to writing, it means "not really proceeding from its reputed origin, source or author; not genuine or authentic; forged." It also has a special meaning in the medical and other contexts.

[413] So, as ever, context is all important for the meaning of a word, as is modern usage; meanings shift and change over time.

[414] Spurious, in modern usage, has developed a particular meaning when applied to argument or reasoning, and paragraph 46 of the October 18, 2004 Order makes it clear that Russell J. is only talking about "arguments." If he were talking about people, he would be saying that they had been born out of wedlock, and this is not the meaning that, in the opinion of the Court, the reasonable person would take from this context.

[415] The dictionary that best reflects modern usage of the word "spurious" when applied to arguments is The New Penguin English Dictionary (2000) which provides as follows:

said of argument or reasoning: apparently sound but containing flaws.

[416] However, the Canadian Oxford Dictionary says something similar:

based on false reasoning: not true or accurate (a spurious argument)

[417] In other words, in common parlance, when people refer to an argument as being spurious, they mean that it is seriously flawed, even though it may have an apparent air of legitimacy about it.

[418] The explanation of why the "arguments produced by the Plaintiffs to resist compliance" were seriously flawed is given in the reasons for the October 18, 2004 Order ("No one is trying to interfere with the way the Plaintiffs present their case" etc.) and they do not need to be repeated here except, perhaps to say that the Court is still no wiser after this motion as to why asking the Plaintiffs to produce will-say statements interfered with the presentation of their case. Of particular note, however, is that, when the Court began to question whether the Plaintiffs wanted to shift their tack or go on insisting they had complied with the Pre-Trial Order, the Plaintiffs produced other reasons (being very busy etc.) that could not be reconciled with their hard line argument that they had complied with the Pre-Trial Order. It just did not make sense, and the Court began to detect a marked insistence on the part of Plaintiffs' counsel to push the Court in a particular direction, rather than address directly the problems of pre-trial preparation and relevance.

[419] The factual basis for the finding is also set out in the reasons. For example, although the Plaintiffs said they had complied with the Pre-Trial Order, the materials which they served did not comply with paragraph 9 of that Order which required that "all persons" had to serve will say statements that would include "language if other than English and name of interpreter if known."

The Plaintiffs had not done this and their failure to do so was, in the opinion of the Court, a serious flaw in their argument that they had complied.

[420] The conclusion was more than warranted by the circumstances and the tone was proportional to the strident insistency of Plaintiffs' counsel on that occasion, as the reasons make clear. The record shows that counsel was given an opportunity to respond because the Court raised other possible reasons for non-compliance, and both Mr. Healey and Ms. Twinn spoke and began to suggest other factors that, in the end, were not consistent with their previous argument. In other words the Court said "if there is really some other problem here, tell me about it?" But, for the reasons given, the Court did not find counsels' arguments convincing, and they also appeared to contradict their compliance argument.

[421] The word "disingenuous" means lacking in candour or frankness. It means insincerity by pretending ignorance of something one knows about. It is a word that the Plaintiffs themselves use in paragraph (a)(xii)(2) of their Notice of Motion to refer to the submissions of opposite counsel.

[422] In the context of the October 18, 2004 Order, the Plaintiffs alleged compliance with Hugessen J.'s Pre-Trial Order, but the Court felt such an argument could not be meant sincerely because there were obvious breaches (such as the language issue) that made a full compliance argument untenable. And, once again, the Plaintiffs were invited to discuss what the real

problem was, but were equally unconvincing with their alternate explanations, for the reasons that the Court gave. The Plaintiffs just insisted on doing things their way and there was no real attempt to address the practical problems and work towards a solution that would protect the rights of both sides.

[423] I see from the vast record produced for this motion that Hugessen J. had similar problems with some of the arguments and explanations offered to him by the Plaintiffs while he was case management judge. I do not think the reasonable person would see this as apprehended bias; I believe the reasonable person would recognize the remarkable consistency between judges when reacting to some of the arguments that Plaintiffs' counsel have chosen to put forward. I believe that fact would reflect upon the nature of the arguments themselves, rather than upon the disposition of the judges hearing them.

[424] So, I cannot accept that the reasonable person would regard the words "spurious and disingenuous" as applying to anything except the arguments made by the Plaintiffs on the occasion when they are used. The reasons for using the term are articulated in the decision itself and, bearing in mind the insistency of Plaintiffs' counsel, and the uncooperative nature of their response, I do not believe that a reasonable person would apprehend the Court's characterization as anything more than a genuine attempt to meet that response and exert the degree of control that the occasion, and the interests of the trial, required. The Court presents no reasonable

apprehension of being "upset"; the Court was appraising the forces at work in the proceedings and making it clear that certain arguments, and ways of arguing, would not convince the Court.

[425] A judge's use of firm or emphatic language is not intended to embarrass or insult counsel personally; the purpose is to provide valuable feedback concerning the kinds of arguments that are likely to succeed, and those that will not persuade the Court. If the Court remains passive or bland, it is not much help to counsel, who then goes on offering arguments that the Court cannot accept.

Rank Opportunism

[426] The Plaintiffs also take objection to Russell J.'s use of the term "rank opportunism" and believe the reasonable person would regard it as bolstering their argument that the trial judge presents a reasonable apprehension of favouring one side over the other and of encouraging the Crown and the Interveners to try and exclude evidence on self-government.

[427] The term appears in paragraph 11 of the November 25, 2004 Order dealing with the Plaintiffs' proposal for a "workable solution" to the will-say problem:

...

11. Viewed against the framework of Mr. Justice Hugessen's Pre-Trial Order, the Plaintiffs' proposal looks to me like an exercise in rank opportunism that is dismissive of the rights of other parties and the procedures that Mr. Justice Hugessen forged to deal with the exigencies of this action.

...

[428] Rank opportunism is opportunism that the Court finds offensive. Very offensive. The reason why the Court found the Plaintiffs' proposal to be opportunistic was that it was an attempt to use their breach of Hugessen J.'s Pre-Trial Order of March 26, 2004 to their own advantage. It was offensive because the Plaintiffs' proposal gave the Crown little time to prepare for trial and it effectively denied the Crown the right to bring before the Court its concerns about scope and relevance. This was an unrepentant continuation of the insistency evident in the previous motion. The Plaintiffs were attempting to push the Court towards a timetable that would leave no opportunity to examine the concerns of the Crown, so that the Plaintiffs would be able to call all identified witnesses irrespective of what the pleadings might say. So, I believe the reasonable person, with a full knowledge of these facts, would apprehend that the Court was seeking to discourage conduct of which its strongly disapproved in a way that was required by the occasion, and was not offering encouragement to the Crown or the Interveners to undermine the Plaintiffs' rights. Plaintiffs' counsel must take responsibility for the tactics he brings to the hearing of any matter.

[429] However, in order to counter the Court's strong disapproval of their proposed "workable solution" to the problems that their breach had cause, the Plaintiffs have now, as part of this apprehended bias motion, brought forward a revisionist account of the situation as it stood in November and December, 2004 that is not borne out by the record.

[430] The principal elements of their revisionist account are as follows:

1. January 10, 2005, the date set for the commencement of the trial by Hugessen J. in the Pre-Trial Order was used by the Court "as an absolute date confronting the Plaintiffs," but was changed by the Court to favour the Crown's motion on pleadings and relevance;

2. The Court and the other parties present a reasonable apprehension of knowing that the December 14, 2004 date used to allow the Plaintiffs to complete their will-says was not feasible, but the Court imposed it anyway to ensure that the Plaintiffs would not be able to complete all of their will-says;

3. The Plaintiffs did not have sufficient time to complete their will-says by December 14, 2004, with the result that they cannot call all the evidence they wish to call on self government;

4. This was a period of crisis for the Plaintiffs, when they were exceptionally busy, and the Court used its knowledge of that fact, and gives a reasonable apprehension of colluding with the Crown and the Interveners to prevent the Plaintiffs from gathering the evidence they needed on self-government.

[431] The Plaintiffs now say that the Court imposed January 10, 2005 as an absolute date for them because in his Order of October 18, 2004 asking for a "workable solution," Russell J. said the following:

[432] The Plaintiffs now say, in effect, that the Court is indicating here that the January 10, 2005 trial date would not be changed, so that any "workable solution" would have to be achieved within the time remaining before the trial.

[433] In order to assess this assertion, the reasonable person needs to know several important facts:

1. The Plaintiffs had originally wanted to proceed to trial without compliant will-says. They wanted to begin the trial on January 10, 2005 with what was little more than a pool of 150 potential witnesses and a lit of topics;

2. The Plaintiffs had not revealed this approach to Hugessen J. before he made the Pre-Trial Order and Hugessen J. did not know that the Plaintiffs were planning to call a possible 150 witnesses to provide new evidence, and he did not know the will-say format they planned to use;

3. Although the Plaintiffs, through Mr. Henderson, had agreed at the Trial Management Conference of September 17, 2004 with Russell J. that it was "absolutely" necessary to address important issues of relevance before the trial began, once Mr. Henderson ceased his involvement with these proceedings, Mr. Healey began to insist that the Plaintiffs had the right to call whoever they wished and that the Crown and the Court could not challenge or interfere with that right;

4. Even after the Plaintiffs accepted the will-say standards imposed by Russell J. in October, 2004, the Plaintiffs remained opposed to the Crown's motion on relevance;

5. The Plaintiffs had certainly said they were busy, but they did not raise with the Court any concerns about achieving their trial preparation by January 10, 2005. However, the Crown had indicated that, bearing in mind what still needed to be done, the trial date might have to be adjusted, thus indicating that the Crown was amenable to an adjournment;

6. Russell J. has consistently granted extensions of time to the Plaintiffs when they have asked for extensions;

7. While the Court has remained concerned to ensure that the proceedings move along as quickly as possible, the Court has never said that the January 10, 2005 trial date was immutable;

8. It was as long ago as 1998 that the amendments were made to the pleadings to allow the Plaintiffs to call new evidence to address changes in the law that those amendments recognized. The Plaintiffs have had a long time to marshall their evidence to support their pleadings;

9. The December 14, 2004 completion date for their will-says was proposed by the Plaintiffs and, when they were queried on the practicalities of that date, they confirmed in court that it was achievable;

10. During the hearing in October 2004, dealing with the "workable solutions" the Plaintiffs urged the Court to proceed to trial on January 10, 2005 and gave no indication that they believed the Court was not willing to change that date;

11. The Plaintiffs have come back to the Court to request an extension of time within which to file a few of their will-says. The Court has yet to consider this request because of this intervening motion for apprehension of bias;

12. Until the hearing of this motion on March 29, 2005 the Plaintiffs have not represented to the Court that they were not able to file all of the will-says they wanted to file, except for the few mentioned earlier that the Court has not been able to consider.

[434] The last point is axiomatic for the Plaintiffs, yet they hardly addressed it at all at the hearing.

[435] The Court asked Mr. Shibley for a solid reference that such an assertion had been made at an earlier date. Because of the serious nature of the allegation made in this motion, this is one point that should have been checked and re-checked by the Plaintiffs. Yet the Plaintiffs appeared not to be able to direct the Court to the relevant portions of the record. Because Mr. Shibley did not know the record, the Court alerted him to the fact that Ms. Twinn had communicated with the Court at an earlier date concerning the status of the will-says and had alerted the Court to the fact that there were a few that had not been completed by December 14, 2004.

[436] Mr. Shibley later confirmed that he was relying upon Ms. Twinn's correspondence to support his assertion, but the Court does not know how familiar he was with what Ms. Twinn had told the Court in her letter.

[437] This is how Mr. Shibley left the issue with the Court:

MR. SHIBLEY: He says [Mr. Donaldson] that you weren't being told that the plaintiffs can't prove their case at trial and can't put the full evidence that's relevant and material. Your Lordship has been good enough to refer to the fact that you've had a communication from Ms. Twinn just to that very effect. So and I think my friends have copies of that. I know they have copies of it.

So how can he [Mr. Donaldson] say to you that you weren't being advised that the plaintiffs were not going to be able to put in their full evidence which was relevant and material, I find it a contradiction to the -

THE COURT: Well, I guess it depends what that correspondence says, and I will take a close look at it.

MR. SHIBLEY: Yes, yes.

(Transcript, vol. 4, page 222: 8 - 25)

[438] I have now taken a close look at it. For some reason, I was unable to locate the letter in the Plaintiffs' Motion Record of February 10, 2005, but the letter to the Court dated December 14, 2004 from Ms. Twinn was in an earlier Motion Record that the Plaintiffs filed on January 25, 2005.

[439] That letter from Ms. Twinn gives no indication of a problem. It tells the Court that the Plaintiffs were, in fact, able to complete their will-says by December 14, 2004, subject to a few exceptions for which a "short extension" was requested from the Court.

[440] The letter is worth quoting to some extent because it provides a spontaneous and unrevised picture of the position the Plaintiffs found themselves in on December 14, 2004:

We are proposing to call 69 witnesses, including 6 primary expert witnesses. Attached to this letter is our witness list setting out:

- the name of each witness;

- the language in which their testimony will be given;

- the name of the interpreter/translator where known;

- the possible order, based on our current views, in which these witnesses may be called; and

- the anticipated length of evidence in Chief.

We have edited the "proof" of the case to the best of our ability. We were able to reduce the original number of witnesses, for example, by determining those witnesses able to take on more areas of evidence.

We estimate the total number of days for evidence in chief, including the primary experts, at 59 days.

[441] Reading this letter in total, I believe that the reasonable person would draw the following conclusions:

1. Apart form about seven or eight witnesses for whom a "short extension" will be requested, the Plaintiffs have been able to produce the will-says they will need for their evidence;

2. There is no explicit or implicit suggestion in this letter that the Plaintiffs have been prevented from marshalling the witnesses they will need for the trial on self-government, or any other issue;

3. Ms. Twinn feels entirely comfortable in asking the Court to extend the December 14, 2004 deadline to allow for a handful of exceptional cases;

4. The Plaintiffs can now elicit their evidence from 69 witnesses, approximately 50% of the number they identified on September 15, 2004;

5. The Plaintiffs feel they have complied fully with the standards for will-ways set by Russell J..

[442] So, the only evidence before the Court that Russell J.'s November 25, 2004 Order prevented the Plaintiffs from calling the witnesses they needed is a bald, and unsupported assertion, made for the first time at the hearing of the present motion. The record suggests otherwise. I believe the reasonable person would prefer the objective evidence to the Plaintiffs' revisionist assertion. What is more, I believe the reasonable person would look at the November 25, 2004 Order in conjunction with Ms. Twinn's letter and would conclude that Mr. Healey's representations that he could produce the will-says by December 14, 2004 were confirmed.

[443] The other significant fact about Ms. Twinn's letter is that it suggests the Plaintiffs did many of the interviews for their will-says (they won't reveal just how many) after the September 15, 2004 deadline set in Hugessen J.'s Pre-Trial Order of March 26, 2004.

[444] It is difficult to see, then, how they could have argued so strenuously that they had complied with that Pre-Trial Order. Until a witness is interviewed, counsel cannot tell opposing counsel what that witness will say.

[445] Also of note, of course, is the significant saving in time and resources that the reduction of the witness list by 50% has already produced.

[446] But the record shows more than this. During the course of a January 7, 2005 conference call, the Court itself raised the import of Ms. Twinn's December 14, 2004 letter, and went out of its way to ensure that the Plaintiffs had no further problems with their will-says, other than those matters raised in the letter. The following sequences are material on this point:

JUSTICE RUSSELL: Any other issues that people feel may be dealt with?

MR. HEALEY: My Lord, I have one, Phil Healey. And I want to respond to what Mr. Faulds just submitted, but it is the plaintiffs' will-says. My Lord, I believe Ms. Twinn was working on a number of will-says as is I. She was working specifically among others on the will-say for Mr. Justice Cullity and former Minister Pierre Cadieux. I believe that Ms. Twinn sent you correspondence where Mr. Justice Cullity had requested, she asked you for a short extension because of, and the same from Cadieux, because of their, they had to deal with the information that they had requested that Ms. Twinn had provided.

And we have had, I feel like I have to say this, My Lord, given what has been said about our efforts in this regard in the past. We, and Ms. Twinn much more than I, with respect to those two witnesses have had a number of conversations with both of these individuals, but those are two will-says which we have not officially served. I believe that because of the many discussions that have occurred drafts have been provided to my friends, but that is still an outstanding issue, and I think it was one raised by Ms. Twinn in correspondence with you.

MS. TWINN: My Lord, this is Catherine Twinn. I don't know if you caught my name at the beginning of the roll call there because I came in at the very end and you had already started speaking. But there are issues in my letter of I believe it is December - -

JUSTICE RUSSELL: Yes, I have that letter, and it was one of the issues I was going to place on the table today. I don't know if everyone has seen a copy of that letter. How was it distributed, Ms. Twinn?

MS. TWINN: It was distributed to everyone.

JUSTICE RUSSELL: I have seen the letter, and I realized that there was going to be issues arising from that so that is on the table. Is there anything further?

(Transcript, vol. 2, page 52:20 to page 54:5)

My next topic was the completion of the will-says and in conjunction with Ms. Twinn's letter. Of course my concerns apart from the status of the interveners - - my concerns today are merely to find out the extent to which the plaintiffs have now produced the will-says they intend to produce, how the Crown is coming along. I am assuming from what has already been said that there are going to be objections and that the process that we laid down in my order is going to be followed.

And I guess the only other matter was whether the plaintiffs' concerns regarding the Crown's and the interveners' will-says could be dealt with at some other time as well. I think we have already discussed that, so I think all that remains for me on this topic at least is just for some report as to what is happening now from the perspective of the plaintiffs and Ms. Twinn's letter and what they feel needs to be discussed in terms of any additional time they need, whether anyone has objection to that. So perhaps, Mr. Healey or Ms. Twinn, they could take up the position, start with the letter so we can find out where they are on the production of their will-says.

MR. HEALEY: I am going to defer to Ms. Twinn on this except of course it is my understanding the will-say for Senator St. Germain has been filed, so we do need more time.

JUSTICE RUSSELL: Perhaps we can hear from Ms. Twinn as to what the position is.

MS. TWINN: I don't have the benefit of having my letter in front of me, but I recall that I addressed the will-says for Justice Morris Cullity, the Honourable Pierre Cadieux and Senator St. Germain. And I would like the Crown and the interveners to confirm that they have received the will-say for Senator St. Germain.

JUSTICE RUSSELL: That is one of the things you are asking. Anything else that comes out of the letter?

MS. TWINN: Well, there is other issues that are raised in the letter, My Lord. There is the issue of the Tsuu T'ina court. There is also the issue which has already had considerable discussion in the abstract of further witnesses that a party may discover.

JUSTICE RUSSELL: Yes, and I think we dealt with that earlier, but apart from anything we may have already addressed today I guess all I am getting at here is if this letter has been circulated. I don't know if there has been any discussion between the parties. I don't know if there is any disagreement. I would just like to find out what the points of disagreement are and how they are going to be resolved.

MS. TWINN: Well, I cannot speak for the others. I have not personally had any discussions with them.

JUSTICE RUSSELL: Then perhaps the best thing to do at this stage is to invite response from the Crown and the interveners as to where we are in relation to the matters raised in Ms. Twinn's letter and perhaps on the will-say statements in general.

MR. KINDRAKE: Jim Kindrake here, My Lord. With respect first to the plaintiffs' will-says they were due on December 14, and the rules say service is at 5:00 o'clock. A series of e-mails were sent to me shortly before midnight on December 14, three before midnight and four after. Those e-mails contained 57 will-says of which 20 had been previously provided, so 37 new ones.

One of the documents then forwarded to Your Lordship was the letter that Ms. Twinn is referring to. The following day Ms. Twinn indicated she was going to be sending some further will-says. We then responded, and this is in our motion record as well, saying we do not accept any more. So the Crown's position is we are being I think very generous to accept service or agree that we have been served in a timely fashion even though we were not with the 57. The Crown does not consent to any further ones. This process has to come to an end. People, several of the people on the list were not on the original witness list. Again, this is all in our motion, but that is our position.

JUSTICE RUSSELL: Perhaps if you are saying that these issues are all addressed as part of the motion then we don't need to go into it today. I just needed to be sure that that was

going to be dealt with in some context, but what the Crown is telling me is that really these matters are going to be part of the motion.

MR. KINDRAKE: They are in the motion. It is very clear exactly the sequence and who got served when and our position about late service of further will-says.

JUSTICE RUSSELL: Okay.

(Transcript, vol. 2, page 63:19 to page 67:5)

JUSTICE RUSSELL: Well, I guess my feeling on that from what I have heard I think today at least we can usefully leave this matter until it comes up again in the Crown's motion. I don't see any point in going any further on that unless someone feels that they can say something in addition.

MR. HEALEY: I am really surprised my friends are going to make an argument based upon will-says filed a few hours late, but we will deal with that at the appropriate time, My Lord.

JUSTICE RUSSELL: At the appropriate time.

(Transcript, vol. 2, page 68:2 - 12)

[447] So when the Court makes an effort to find out if the Plaintiffs are still having any problems with their will-says, the only issue is a few specified witnesses and will-says "filed a few hours late." There is disagreement over whether the few stragglers should be allowed (and Russell J. has yet to decide that matter), but there is no suggestion of a major problem in marshalling evidence on self-government. In her affidavit for this motion, Ms. Twinn says "I was unable to speak to witnesses even though they have important evidence." If this is so, it was not a matter that was brought to the attention of the Court on occasions when there was ample opportunity to do so. Also, it isn't really clear whether not being able to speak to witnesses is the same thing as not having the evidence required for the self-government at large issue. One does

wonder why it is that Ms. Twinn has not been able to speak to witnesses she wants to speak to when the re-trial process began in 1997, and the deadline for will-says was fixed and agreed upon as being September 15, 2004. In any event, the most difficult thing to understand is why, if this really is a problem, the remedy chosen is removal of the trial judge rather than merely bringing the matter before the Court.

[448] To place this matter beyond any doubt, Mr. Healey had the following to say at the January 7, 2005 conference meeting:

My Lord, you set the rules, and we have complied by them as best we can. And we are working under the rules that have been set by the Court. So the Plaintiffs have presented their case through the service of will-say statements and the December 21 submission in accordance with the way in which the Court has permitted the Plaintiffs to present their case, and we want to proceed on that basis and have my friends comply in the same way.

(Transcript, page 15: 18 - 26)

[449] Yet, before the Court, as part of this motion, Mr. Shibley has argued strenuously, and has admonished the Court for giving the reasonable appearance of colluding with the Crown and the Interveners to ensure that a date was fixed that would not allow the Plaintiffs to gather the evidence they needed on self-government.

[450] I feel that, after reviewing the record, a reasonable person would not have a reasonable apprehension that was the case.

[451] I also believe that, when the transcript of the hearing on November 18, 2004 - where the "workable solution" proposed by the Plaintiffs was discussed - is reviewed, the reasonable person would be interested in the following sequences related to Mr. Shibley's argument:

1. Acceptance of Standards Imposed

Mr. Healey It is my submission they [the 18 will-says submitted at that time] comply with all the requirements, My Lord, that Your Lordship indicated. In fact they go even further, they are extremely detailed. Much more detailed than, for example, was contemplated by the order of Mr. Justice McKay in the Buffalo case.

(page 32: 8 - 13)

2. The Number of Witnesses

The Court puts the following question to Mr. Healey:

JUSTICE RUSSELL: All right. Do you - do you still anticipate the hundred and forty-two (142) or - what are the numbers?

(page 19 - 21)

Mr. Healey does not provide an answer.

3. Adjournment of the Trial Date

Russell J. took this matter up with Mr. Faulds, legal counsel for Native Council of Canada (Alberta), one of the Interveners.

JUSTICE RUSSELL: But let's - let's assume for the time being they need a hundred and fifty (150) witnesses, what could they do?

MR. JON FAULDS: Well in - in that case I suppose all they would do would be apply for an adjournment of the trial and accept

them to - to bring that about. And that would be an acknowledgement of the - of the deficiencies of - or the difficulties that they have caused.

What they have done instead, My Lord, is take a position that does nothing to address the detriment which they have caused to the other parties and which allows them to continue to produce will-says for a period of three (3) months after the original deadline in no particular order, in no particular number.

(page 55: 10 - 25)

MS. MARY EBERTS: This leaves two (2) choices basically. One (1) is to maintain the status quo as it was as of October 18, 2004 namely that the Plaintiffs are not allowed to bring these witnesses.

The other option is that the Plaintiffs be given the opportunity or take the opportunity to apply for an adjournment of the commencement of the trial. Any such application for an adjournment, in our respectful submission, should contain a detailed timetable and series of commitments about when things will be done.

(page 65: 11 - 20)

MR. KINDRAKE: The loss of trial prep time the Crown was counting on is lost unless the trial is adjourned to take account of it.

(page 46: 18 - 20)

Mr. Healey's response to these suggestions was as follows:

"[W]e want to start on the 10^th and we're going to be giving them will says."

(page 72: 10 - 11)

"Interveners have no right to ask for an adjournment."

(page 76: 3 - 4)

In other words, at any suggestion of an adjournment, Mr. Healey waxes indignant and tells the Court it cannot even listen to proposals of the Interveners on this issue. Yet the Plaintiffs' argument in this motion is that the Court presents a reasonable apprehension of having colluded with the Crown and the Interveners to ensure that the Plaintiffs did not have the time they needed, and the Court's position was that the January 10, 2005 trial date could not be changed, until the Crown needed more time.

4. The December 14, 2004 Date

MS. MARY EBERTS: One (1) very important matter was the issue of trial planning.

Is it going to be possible to have the pre-trial and at-trial issues that still need to be determined with the Plaintiffs will says and witness list in the shape that they were in at that time.

(page 59: 22 - 25 and page 60: 1 - 3)

This leaves us in a situation where there - it - it can be confidently predicted that the Plaintiffs' will says will not be on the table in their fullness, in their full numbers by December 14, as they have promised.

And even if they were, even if they managed to telescope seven (7) months worth of work into the remaining month, production of all the will says by December 14 leaves, if you count both the 14^th and the 10^th, it leaves twenty-six (26) days between their proposed target date and the opening of trial and that twenty-six (26) days encompasses the Christmas and New Year and other holiday seasonal break.

It is our respectful submission that this produces a total impossibility.

(page 61: 1 - 15)

Once again, Mr. Healey's response is as follows:

MR. PHILIP HEALEY: And then she (Ms. Eberts) comes out with this formula, My Lord, where she says, well, eighteen (18) a month and divided by one forty-four (144), that means this many months to get ready for trial. I said December 14, okay? She doesn't have to worry about some formula she's making up in her head.

(page 81: 8 - 14)

Mr. Healey was aggressively indignant at any suggestion that the schedule should build in more time to produce will-says, or that the trial date should be postponed.

He now says, in his evidence under oath for this motion:

I believe that there was a concerted effort by counsel opposite to overwork us in the sense that they were trying to raise more issues than we could deal with, and I believe that the Court was aware of that and the Court was, more or less, doing the same thing with tying us to a tight timetable to complete exercises which could not be completed in that timetable.

(Cross-examination of Philip Healey, page 211: 10 - 17)

Such a belief is not commensurate with the record and Mr. Healey's aggressive rejection of the suggestions of other counsel that the way forward was to look at the schedule and consider an adjournment of the trial date. The following allegation against Russell J. is equally unsustainable:

[H]e knew he was putting pressure on us, and he knew that you and opposite counsel were putting pressure on us.

(Cross-examination of Philip Healey, page 212: 23 - 25)

This is, of course, an allegation of actual bias.

5. Relevance and Scope Issues

MR. MICHAEL DONALDSON: And the only real issue for you to decide is whether the Court should itself fashion the workable solution that the - that the Plaintiffs have failed to present. This, in reality is nothing to do with a workable solution, it's simply an application for an extension of time.

(page 67: 18 - 23)

JUSTICE RUSSELL: - we're not having that relevance debate here.

MR. PHILIP HEALEY: Okay. All right.

JUSTICE RUSSELL: And it does come into the fact of course that the - the other side have argued, well, we can't really - we can't really bring our application on such things as relevance until we have - until we have the full - the full will says. That seems to me how relevance comes into these applications.

(page 86: 10 - 19)

Russell J. is attempting to have Mr. Healey respond to the issue of how the schedule Mr. Healey has proposed will allow sufficient time for the Crown's motion on scope and relevance. Given the opportunity, Mr. Healey does not provide a responsive answer.

Mr. Healey's non-responsive answers need to be considered when assessing his complaints (expressed in cross-examination) to the following effect:

When I say that I'm surprised at the tone of his Reasons, I make a submission, I don't get questioned on the submission, nor does he express concerns with me that he has on the submission that he later raises in his Reasons. So I don't get an opportunity to deal with that, and that's why I'm surprised at the tone of his Reasons, and we've all read his Reasons.

(Cross-examination of Philip Healey, page 25: 14 - 22)

I believe the reasonable person would feel that if Mr. Healey chooses to give non-responsive answers, he should not later complain that he has not been given the opportunity to deal with matters that are of concern to the Court.

In response to the Court's inquiry about timing for the Crown's scope and relevance motion, Mr. Healey keeps his answers confined to the will say standards and the role of the Interveners (which was the subject matter of second motion heard that day). Mr. Healey takes the position that relevance can only be examined at trial after all the witnesses have been heard:

JUSTICE RUSSELL: No I - look, I don't need convincing that we're dealing with very, very important issues in this case.

MR. PHILIP HEALEY: Well, I'm responding to submissions that these will says aren't relevant when they speak to the very issue that you're going to be asking questions about and I suspect, My Lord, that when we get to trial and these witnesses are on the stand, there'll probably be a lot of questions that you may have for them.

(page 96: 1 - 10)

[452] In my view, a reasonable person, reading the transcript of this hearing, would come to the following conclusions:

1. The "workable solution" proposed by the Plaintiffs only really dealt with one issue: the Plaintiffs suggestion for an extension of time (an additional three month in fact) to file their own witness list and will-says;

2. The Plaintiffs did not really attempt to address the problems that such a delay caused the other parties. These problems included adequate preparation time and the determination of important matters dealing with scope and relevancy;

3. Mr. Healey assured the Court that the December 14, 2004 date for the submission of the Plaintiffs' compliant will-says was workable;

4. Mr. Healey resisted any suggestion that an adjournment of the trial date was required to allow all parties to do what was needed before the trial began;

5. When the Court attempted to raise important matters with Mr. Healey, he did not provide responsive answers. He would not even disclose the number of witnesses he expected, and left everyone assuming it remained in excess of 140.

[453] It is true that the Crown and the Interveners suggested to the Court that the Plaintiffs' witnesses be excluded. The Court, however, refused to accede to this request. And the

Interveners came up with suggestions for an orderly approach to trial preparation that would allow the Plaintiffs and the Crown the time they needed.

[454] As Mr. Donaldson suggested, in light of the refusal by the Plaintiffs to acknowledge the needs of the other side, the Court had to step in and devise its own solution and schedule. That solution and schedule is embodied in the Order of November 25, 2004.

[455] Mr. Shibley says that a reasonable person would conclude from that Order that the Court was holding the Plaintiffs' feet to the fire on the will-says, but was willing to adjourn the trial date to accommodate the Crown. The Court does not believe that a reasonable person would apprehend the Order in that way. Placed in the context of the record of the whole hearing and the proceedings, I believe the reasonable person would conclude:

1. The Court resisted attempts by Plaintiffs' counsel to grant him what he wanted while, at the same time, maintaining the January 10, 2005 trial date so that there would be no time for other parties to prepare and no time for consideration of the Crown's motion on scope and relevancy;

2. Based upon the information provided by all parties at the hearing, the Court attempted to impose an orderly schedule that was reasonable for both sides to allow them to do what they needed to do before trial;

3. The transcript makes clear why the Court found the Plaintiffs' proposal for a "workable solution" to be opportunistically offensive;

4. There was never any suggestion from the Plaintiffs that December 14, 2004 did not give them enough time. They bristled and became indignant when Ms. Eberts dared to raise timing and practical issues.

[456] So, I believe the record is clear on why the Court described the Plaintiffs' proposal as "rank opportunism." The Plaintiffs' arguments for suggesting it was an inappropriate term or that it gives rise to a reasonable apprehension that Russell J. was actively encouraging the Crown or the Interveners to put the Plaintiffs under pressure so that they would not have time to marshall their evidence are not supported by the record. The reasonable person, fully informed on these matters, would not conclude that the Court appeared to collude with, or encourage, the Crown and the Interveners to exclude the Plaintiffs' evidence on self-government. The Plaintiffs' attempts to now impute such an appearance are based upon a revisionist account of what took place that is negated by the record.

The Reprimand

[457] Since the initial meeting with counsel at the Trial Management Conference in Edmonton on September 17, 2004, it has been apparent to Russell J. that significant hostility exists between Plaintiffs' counsel and the lawyers who represent the Crown and the Interveners.

[458] The words of Southin JA in Middelkamp v. Fraser Valley Real Estate, [1993] B.C.J. No. 1846 at paragraphs 10 - 12, that "a trial is not a tea party" are often cited. But I believe it is also worth pointing out that a trial is not a war of attrition either, and it certainly is not a forum for personal, ad hominem, attacks upon opposing counsel. The reason for this is obvious: if the trial process breaks down into a personal confrontation between counsel, the administration of justice becomes impossible and the rights of the parties are jeopardized.

[459] I have made it clear from time to time in these proceedings that professional comity and mutual cooperation, commensurate with the best interests of the parties, is absolutely essential for the kind of long and intense trial that lies ahead.

[460] This does not mean that I expect a tea party, but all personal antagonism must be repressed in the interests of the trial process.

[461] Generally speaking, counsel have headed my instructions and warnings in this regard. But there have been times when personal animus has broken through and I have had to deal with it.

[462] One such occasion occurred on November 18 and 19, 2004 in Edmonton when the parties came before the Court to deal with the "workable solution" motion of the Plaintiffs and the motion of the Interveners dealing with their role at trial.

[463] In responding to the Intervener's motion, counsel for the Plaintiffs strongly expressed the view that the Interveners were out to create mischief and that they were deliberately trying to mislead the Court about the role the Court had allocated to them.

[464] The Interveners took the position on that motion that their participation rights were largely res judicata and had been established in previous orders of the Court made by McNair J. and Hugessen J., and that the only task for the trial judge on this occasion was to determine what scope for cross-examination they should be allowed at trial.

[465] By and large, the Court agreed with the Interveners and gave reasons why certain prior orders were res judicata and had, in fact, been endorsed by the Federal Court of Appeal. The Court was, therefore, very concerned about the implications of the Plaintiffs re-arguing matters

that were res judicata, and by their using the mischief allegations against Interveners' counsel as a means of distracting the Court and persuading it to allow them to go over old ground:

At the hearing of the present motion in Edmonton, the Plaintiffs took up a significant part of two days of Court time, and the time and effort of other counsel, to re-hash matters that are obviously res judicata and which they have tried to re-hash before. I allowed them to do this because counsel for the Plaintiffs advised the Court in no uncertain terms that the Interveners, in their presentation, were misleading the Court and that their purpose was mischief. These are extremely serious allegations on which I allowed argument. Naturally, when an officer of the Court tells me that opposing counsel are misleading the Court and creating mischief, I want to hear the details and I want to examine the situation thoroughly. I have now done that.

I have, on several occasions, made it clear to counsel on both sides of this dispute that I expect them to ensure that this matter comes to trial in an efficient and timely manner and that they must conduct themselves with civility and desist from ad hominem attacks upon opposing counsel. On this occasion, that direction was not followed by counsel for the Plaintiffs. This matter is of extreme concern to me because, not only does it raise professional conduct issues, but it impacts negatively upon the administration of justice in this dispute. The progress of the dispute was impeded, and valuable Court time was wasted, in addressing matters that, on examination, are clearly res judicata. Because counsel for the Plaintiffs indicated strongly that the Interveners were misleading the Court and creating mischief, the Court was misled into hearing representations on matters that have already been argued ad nauseam before the Court, and upon which this Court and the Federal Court of Appeal have already ruled. This is a serious matter for the Court.

[466] At the end of the reasons, the Court also reiterated the following direction:

In the context of what promises to be a long and arduous trial, and because of the significant number of issues that still need to be dealt with before trial can begin, the Court would like to remind all counsel of the following points:

1. unwarranted personal, ad hominem attacks against opposing counsel must cease. They are interfering with the administration of justice;

2. motions and interlocutory matters must be dealt with in an efficient and timely manner. The restrictions contained in the Federal Court Rules, 1998 dealing with the form and volume of written materials must be complied with unless the Court rules otherwise;

3. if any motion is likely to exceed two hours in duration, it would be helpful if counsel could indicate the expected length of time on filing materials and indicate why more time is necessary;

4. prolixity in presentation is neither helpful or persuasive.

[467] Mr. Shibley, in the present motion, takes the position that the Court, in dealing with personal conduct matters in this way, has created a reasonable apprehension of bias. This is how he sees the problem:

Now, My Lord, I want to make it clear that the kind of antagonism that exists in this case among counsel for the respondents as opposed to counsel for the plaintiffs and visa versa is something that I personally abhor. I think that it's perfectly correct for the Court to reprimand counsel in that regard, but the reprimand has to be again founded on an examination of what really went on.

And it appears, and I think rightly so, that there has not been an adequate examination into this rhetorical-type exchange.

(Transcript, vol. 2, page 19, line 14 to page 20, line 2)

The point I want to make, My Lord, is that this is not a one-sided problem in this case, this acrimony. And what is happening here is plaintiffs' counsel, once again, is being singled out or appears to be singled out for an observation that his attack approaches professional misconduct. And the evidentiary basis for making that conclusion does not appear to have been fully addressed.

(Transcript, vol. 2, page 21, line 21 to page 22, line 4)

[468] There are several different things going on here, but it always has to be remembered that Mr. Shibley has not been present at other hearings or meetings and does not know the actual record in any kind of detail, and his sole source of information on these matters is Mr. Healey and Ms. Twinn. I have already mentioned the difficulties of relying upon the evidence of Plaintiffs' counsel, but here the dangers are particularly acute because Mr. Healey is the one supplying Mr. Shibley with the evidence and the argument on a matter that involves his own conduct.

[469] The first thing a reasonable person would have to bear in mind is that hostility and antagonism between counsel is not the problem. The problem occurs when that hostility manifests itself in such a way, and gives rise to conduct, that threatens professional comity and hampers the administration of justice.

[470] The second issue that a reasonable person would need to know is that there is no evidentiary base for Mr. Shibley's assertion that "this is not a one-sided problem in this case ... ." The hostility between counsel may not be one-sided, but conduct is the issue, and when it comes to conduct, counsel have not all behaved in the same way.

[471] I have agreed with Mr. Shibley that this motion is not the place to address the complaints of opposing counsel directed at Mr. Healey and, for this reason, I wish to make what I have to say as neutral as possible. However, the conduct of Plaintiffs' counsel has been put in issue by the Plaintiffs and the Court must address it to the extent that it relates to the reasonable apprehension of bias motion that has been placed before the Court and to the extent that it impacts upon the integrity of these proceedings.

[472] Mr. Shibley makes two important points that the Court should address. One of them is what he terms the "one-sided problem." Once again, he is neglecting the full record. The Court's general directions upon conduct have been directed at all counsel. Even in the Court's December 6, 2004 reasons, at paragraph 68, the Court's comments are directed at "all counsel."

[473] But this does not mean that all counsel have engaged in unacceptable conduct. The record shows where individual counsel have transgressed and, in any future context where conduct may become an issue, it should be the full record that is looked at, and not anything that was said as part of the hearing for this motion where all involved behaved impeccably.

[474] In the December 6, 2004 reasons, Mr. Healey is singled out for observation because the Court felt that, on that occasion, his conduct was not acceptable. The Court had no problem with the conduct of opposing counsel because, although they took strong issue with what Mr. Healey said, they remained professional and did not allow their feelings to disrupt the process or to deteriorate into a personal attack upon Mr. Healey before the Court.

[475] The second important issue is Mr. Shibley's assertion that the "evidentiary base ... does not appear to have been fully addressed."

[476] Paragraph 35 of the reasons of December 6, 2004 makes it clear that the reason why the Court felt it necessary to reprimand Mr. Healey was because the "progress of the dispute was impeded, and valuable Court time was wasted, in addressing matters that, on examination, are clearly res judicata."

[477] The Court felt it had been misled on one of the principle issues in the motion: res judicata. By alleging that the Interveners were misleading the Court on this issue, the Court allowed argument from Plaintiffs' counsel that should not have been allowed because the issues had "already been argued ad nauseam before the Court," and were matters upon which the Court "and the Federal Court of Appeal" had already ruled.

[478] So this aspect of the reprimand was that the Court did not appreciate having to listen to arguments on matters that were res judicata. The evidentiary base for this conclusion is set out in the reasons and the materials submitted by counsel who participated in that motion.

[479] The second aspect of the reprimand was disapproval of Mr. Healey's ad hominem attacks upon opposing counsel. In other words, he made it too personal.

[480] Throughout the hearing on November 18 and 19, 2004, and not just in relation to one contentious matter, Mr. Healey made extensive use of words such as "misrepresentation," "mischief," "they will say anything," "mislead," "complete misstatement," "trickery," "most ridiculous position," "false," and "that's just made up." Russell J. did not in the reasons address every instance where such words were used. But the evidentiary base for the reprimand was everything heard by the Court, and that appears in the transcript. The overall impression conveyed by Mr. Healey was that the Interveners were dishonest and that they were out to trick the Court on issues concerning their role and standing in these proceedings. And, after I had

heard argument, I agreed with the Interveners that the issue of their role had been dealt with to a considerable extent in previous Court orders and did not need to be argued all over again.

[481] Russell J. did not detect or record a similar animus on the part of the Interveners when they were dealing with Mr. Healey's arguments, even though he was re-arguing matters that were res judicata.

[482] It has to be kept in mind that, in paragraphs 34 and 35 of the reasons, the Court is focussed upon the issue of res judicata. As the reasons also make clear, Mr. Healey argued that the Federal Court of Appeal had directed certain things which Russell J. found that Court had not directed. The Plaintiffs cited the Federal Court of Appeal out of context, and then claimed that the Federal Court was being misled by the Interveners and that they were creating mischief.

[483] So the evidentiary base for the Court's remarks can be found in previous decisions of the Federal Court and the Federal Court of Appeal as referred to in the reasons. The Court indicates in paragraph 34, that it examined the allegations that Mr. Healey made (including those against Mr. Donaldson and Mr. Faulds) and the Court did not find that the Interveners were creating mischief or deliberately misleading the Court. If Mr. Healey has a problem with that finding he can take it up with the Federal Court of Appeal. Differences of interpretation do not require an all-out attack on the honesty of opposing counsel. That is what warranted the reprimand. Counsel can be wrong (and I'm not saying they were in this case) without being dishonest, and I

have noticed in Mr. Healey's cross-examination for this motion, when Mr. Kindrake took him through a number of inaccurate statements he has made to the Court, he was very forgiving of himself. Those inaccuracies were merely "mistakes."

[484] I believe the reasonable person would see the reprimand as an attempt to maintain courtroom decorum in a situation where disagreement between counsel resulted in one counsel resorting to ad hominem attacks in order to distract the Court from the basic issue of whether the role of the Interveners was or was not a matter of res judicata. As the reasons make clear, the full evidentiary base was examined. The response was measured and appropriate and I do not believe that the reasonable person, fully informed, would reasonably apprehend bias against Mr. Healey or the Plaintiffs.

The Fundamental Issue

[485] Mr. Shibley summed up his basic concern at several points in his oral argument:

If I had to single out one aspect of the application which, with respect, is fatal to the ongoing involvement of the Court in this case, it's that one. That circumstance of denying the right of the plaintiff to adduce all relevant evidence, the opportunity to do so is not only, as I say, in the character of a basis for an apprehension of bias, it's really a denial of natural justice.

(Transcript, vol. 2, page 47, lines 9 - 17)

[486] This sounds ominous, but what it fails to take account of is the position the Plaintiffs presently occupy in this law suit. That position can be described quite simply.

[487] After breaching Hugessen J.'s Pre-Trial Order of March 26, 2004 to produce will-say statements by September 15, 2004, the Court granted the Plaintiffs until December 14, 2004 (the date they requested) to rectify the breach. In doing so, the Court twice resisted calls from the Crown to exclude the Plaintiffs' new evidence in its entirety, and gave the Plaintiffs the time they said they needed to correct the breach. The Plaintiffs have now submitted their will says. Mr. Healey and Ms. Twinn have told the Court that they pass muster.

[488] So, apart from a handful of late arrivals, the Court has been told that the will-says are completed. So the trial will proceed on the basis of those will-says unless the Crown can convince the Court that the evidence they represent should be excluded for some reason.

[489] If the will-says are fully compliant, as Mr. Healey and Ms. Twinn have suggested, then the only reason that the Court can see at present why that evidence could be excluded is on the basis that it has no relevance to the pleadings.

[490] The Court has yet to consider the Crown's motion on relevance. So, as things sit today, the Court does not know how much of the Plaintiffs' new evidence is relevant. In fact, the Court does not even know at this stage whether it can, pre-trial, make a ruling to exclude any evidence, even if irrelevant. All of this remains to be argued, and would have been argued by now if this apprehension of bias motion had not intervened.

[491] And, as Mr. Shibley points out in the statement above, there can be no question of bias or a denial of natural justice if the excluded evidence is not "relevant." The relevancy of the evidence of any party to this law suit has yet to be determined.

[492] The only way it is possible to argue that any evidence has been excluded is to allege that the Plaintiffs were not given the time they needed to produce their will-says. I have already been over those parts of the record that show that argument to be revisionist and not in accordance with what the Plaintiffs have told the Court on previous occasions. In addition, of course, there is nothing before the Court to show that, even if such evidence had been excluded, it was in any way "relevant" to the pleadings.

[493] Mr. Shibley has told the Court, and the lay affidavits seem to bear this out, that the Plaintiffs have been told by their lawyers that the Court will not allow them to call the evidence they want to call on self-government.

[494] Lawyers for each party are responsible for drafting the pleadings. In the present case, Plaintiffs' counsel drafted the pleadings and have succeeded in securing (to my knowledge) at least two sets of amendments. One set of amendments was allowed by Hugessen J. in 1998, and another set of amendments was allowed by Russell J. in 2004. The pleading say what they say. As soon as Russell J.'s Order of June 29, 2004 issued, Plaintiffs' counsel knew exactly where

they stood on the issue of self-government in the pleadings. Plaintiffs' counsel accepted that position. They did not appeal the Order of June 29, 2004.

[495] So if the Plaintiffs are worried that they will not be able to call evidence on self-government as they wish to define it, it can only be because they believe that their concept of self-government is not encompassed by the pleadings as presently drafted. If it turns out that the pleadings do not encompass self-government as the Plaintiffs wish to argue it, then the Plaintiffs have been misinformed. But not by the Court.

THE PLAINTIFFS' WRITTEN ARGUMENT

[496] Following his oral presentation, Mr. Shibley adopted and endorsed the Plaintiffs' written argument with the exception of two important allegations which I will come to shortly.

[497] The Plaintiffs' written argument was not prepared by Mr. Shibley and it is the Court's understanding that he had very little input, if any, in putting it together. The written argument is signed by Ms. Twinn and Mr. Healey, and Mr. Healey has indicated in cross-examination that he and Ms. Twinn (together with those they supervise) are responsible for it. Mr. Healey is primarily responsible.

[498] The two allegations that were withdrawn are important. The first one is contained in paragraph (a) (xv) of the Notice of Motion and 5(j) of the Plaintiffs' Memorandum of Argument to the effect that Russell J. engaged in private conversations with the Crown to thwart the Plaintiffs' plans to call their evidence on self-government.

[499] There are clear indications here of a deep-seated hostility towards the Court and its processes. Until the day of the hearing, Plaintiffs' counsel continued to allege that Russell J. "engaged in private conversations with the Crown to schedule a summary motion filed by the Crown designed to defeat the central allegation raised by the Plaintiffs in this proceeding, namely the Plaintiffs' right of self-government ... . It was only through the inadvertence of the Crown that the Plaintiffs became aware of these conversations ... . Russell J. did not inform the Plaintiffs at the time or shortly after these discussions occurred that there were such discussions or what was discussed... . Russell J. only responded when the Plaintiffs raised it with him one week later."

[500] This sounds, and is meant to sound, absolutely appalling. It conjures up images of Russell J. picking up the phone and plotting with Mr. Kimmis to thwart the Plaintiffs' alleged claim to self-government.

[501] What really happened was that a filing date for Crown materials fell on a Saturday and the Crown contacted the Court registry to find out what it should do. The registry applied the

usual rule in these situations of allowing filing on the next business day. The registry checked with Russell J. to ensure that there was no problem in following the normal procedure in this instance. And thus, says Plaintiffs' counsel, Russell J. "engaged in private conversations with the Crown ... ."

[502] The Plaintiffs had to know immediately that they received materials on Monday and not Saturday, and as soon as Russell J. became aware that Plaintiffs' counsel was concerned, a full written explanation was provided forthwith. Yet the allegation was still made. What is more, it was sworn to under oath by counsel for the Plaintiffs.

[503] What we see happening here is Mr. Healey and Ms. Twinn abandoning all proportion and objectivity to mount a personal attack on the integrity of the trial judge, although I am not clear from the evidence of the extent to which Ms. Twinn is a participant in this approach.

[504] Fortunately, a wiser head prevailed and Mr. Shibley withdrew the allegation at the hearing. But the fact that it was made at all under the circumstances would not be lost on the reasonable person.

[505] The fact that it appeared in the Notice of Motion and the Memorandum of Argument, after full explanation was promptly provided, highlights the significant difficulties the Plaintiffs' written materials present for the Court and why argument (written or otherwise) should not be

made by someone who, in the case of Ms. Twinn, is a band member, solicitor of record and witness, and, in the case of Mr. Healey, is leading counsel, witness and personally involved with many of the issues raised.

[506] The second important item that was withdrawn is even more problematic for the Court. At the end of his presentation, and after he had endorsed and adopted the Plaintiffs' written argument, the Court drew Mr. Shibley's attention to paragraph 3 and the following sentence:

They (i.e. the Plaintiffs) do not seek a determination of actual bias. There is however some evidence to support such a finding.

[507] The Court is never told what this evidence of actual bias is, although there are allegations throughout of actual bias rather than apprehended bias. But Mr. Shibley assured the Court that this motion was based upon apprehended bias.

[508] An allegation of actual bias without evidence is nothing more than a slur. And an allegation of actual bias in a motion that claims to be about apprehended bias is irrelevant and, therefore, a gratuitous slur.

[509] To his credit, Mr. Shibley withdrew the allegation in paragraph 3 as soon as the Court brought it to his attention and I do not for one moment entertain the thought that, in endorsing the Plaintiffs' written argument, he meant to endorse that allegation.

[510] I also agree with Mr. Shibley that complaints by the Crown and/or the Interveners related to the conduct of Plaintiffs' counsel should not be dealt with as part of this motion except, of course, where Plaintiffs' counsel's conduct is specifically raised by the Plaintiffs and the Court is, therefore, obliged to deal with it, and where the materials themselves bring up conduct issues that the Court cannot ignore.

[511] However, notwithstanding its withdrawal at the hearing, the inclusion of an allegation of actual bias raises the same general concern that the Court has already expressed about the materials having been prepared by counsel for the Plaintiffs who have abandoned objectivity and any sense of proportion in what they are prepared to say. And the allegations of actual bias are so ingrained and interwoven throughout the Memorandum of Argument and the evidence of Mr. Healey that removing a sentence from paragraph 3 does not solve the problem.

[512] The Plaintiffs' Memorandum of Argument presents a litany of allegations that goes on for almost 100 pages. It is not easy to decipher and no assistance was offered to the Court at the hearing by the Plaintiffs that would help in the process. The Court is merely left to make what it can of decontextualized quotations and accusations, highly subjective and skewed interpretations, attempts to re-argue untenable positions, and a great deal of what can only be called innuendo.

[513] The net effect of this approach is to force upon the Court and the other parties the job of providing the full context needed to place the Plaintiffs' arguments in a perspective that will

enable the reasonable person to assess them. The Court has to keep in mind that the onus is on the Plaintiffs to prove a reasonable apprehension bias, and it is not the role of the Court and/or the other parties to try and make clear what is obscured by the Plaintiffs' materials. But allegations of bias (actual or apprehended) are very easy to make and very difficult to dispel. They strike at the heart of our justice system and they undermine public confidence in the integrity of the judiciary. This is why they should not be made in an irresponsible way and before an objective appraisal is made of the record, the materials and the position of counsel who is making them. If undertaken irresponsibly they create alienation and estrangement from the whole justice system.

[514] The Plaintiffs were given a significant amount of time to prepare this motion and their materials. Extensions were granted when requested. All other pending matters were suspended so that they could concentrate on the task in hand. And Mr. Donaldson, who represents NSIAA, one of the Interveners, even went so far as to assist the Plaintiffs and the Court in preparing and organizing two volumes of Transcripts, Pre-Trial Orders and Directions that are essential for an understanding of the full context of this motion. Notwithstanding all of this accommodation, the end result is confused and, at times, just plain baffling.

[515] The first problem for the Court is to determine what the Plaintiffs' Memorandum of Argument actually is and how it can be used. In their affidavits, Ms. Twinn and Mr. Healey

adopt the document, or at least parts of it, as evidence. Mr. Shibley could not really help the Court much with this problem:

In any event, it's not a factum, in my view, in the normal sense of that term; its written argument, which I found to be helpful, and I hope you do too. It's comprehensive beyond what is normal. There is no question about that.

(Transcript, vol. 2, page 28: 8 - 13)

[516] So the Court is left to make of this "written argument" what it can. However, the Court was very unnerved by the following information from Mr. Shibley:

Well, I've read it more than once; I've read it a number of times. And I say with respect, I, submit to you, My Lord, that it's very worthy of reading. It is elaborate. And sometimes the reproduction of transcript is elaborate. I found it useful because I didn't have to read the transcript, get the volumes out. [Emphasis added]

(Transcript, vol. 2, page 32: 3 - 10)

[517] The Court can only say that it gains little comfort from the knowledge that Mr. Shibley did not have to read the transcript because, had he done so, he might have alerted himself to the fact that the allegations and assertions contained in the Memorandum of Argument are difficult to reconcile with the actual record.

[518] In his summary, Mr. Shibley advised the Court that "the record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties." Having now spent weeks doing just that, I am left wishing heartily that the Plaintiffs had followed their own advice.

Allegations Against the Federal Court

[519] The way the Plaintiffs choose to set the scene is indicative of their general intent and methodology:

The issue raised is apprehended bias. Regretfully, the Plaintiffs for a second time ask the Court to determine whether apprehended bias exists in these proceedings. In initiating this motion now, the Plaintiffs are following the direction of the Federal Court of Appeal when it found that the first trial judge, Muldoon J., demonstrated apprehended bias in the first trial.

Sawridge, Tsuu Tina, Ermineskin v. Canada, [1997] 3 F.C. 580 (F.C.A.)

[520] The Court is left to speculate about the relevance of invoking the Federal Court of Appeal in this way. The "direction" relied upon is not quoted, so that it is not possible to tell what reliance is intended. However, the general impression is clear: with considerable reluctance, the Plaintiffs are only doing what the Federal Court of Appeal has directed them to do.

[521] The Court is then left to try and guess which aspects of the Federal Court of Appeal's judgment should be considered and what its relevance might be for this motion.

[522] The way that Muldoon J. handled the first trial was not criticized or found to be evidence of apprehended bias by the Federal Court of Appeal, which made it clear in its reasons that "we are unable to characterize complaints by the Appellants as to the general conduct of the trial as giving rise to such an apprehension of bias." It was in the reasons for judgment provided by Muldoon J. after the first trial where the Federal Court of Appeal found a reasonable

apprehension of bias. Those reasons have played no part in the handling of the proceedings leading to the re-trial. Hence, any suggestion that something said or done by Muldoon J. might reasonably be said to have influenced either Hugessen J. or Russell J. is entirely unsubstantiated, as is any suggestion that the Federal Court of Appeal has directed the Plaintiffs in their approach to this motion. The impact of Muldoon J.'s judgment has long since spent itself and the decision of the Federal Court of Appeal is res judicata. The Plaintiffs did not ask the Federal Court of Appeal to grant the relief requested in this motion on the basis of Muldoon J.'s reasons, so it is difficult to see how that relief could be granted now, even if the Federal Court of Appeal had not made it perfectly clear in Samson Indian Band v. Canada, [1998] F.C.J. No. 688 at paragraph 11, that allowing the parties a say in the selection of a trial judge is "foreign to the practice of this Court. We do not wish to encourage it in any way."

[523] All that paragraph 1 and its assertions bring to the Court is innuendo, and no reasonable person can make an informed judgment about the Federal Court and its judges on the basis of innuendo.

[524] In the second paragraph of their written brief, the Plaintiffs say that "For the reasons set out herein, the Plaintiffs also have an apprehension about whether or not they will receive an unbiased hearing in the Federal Court."

[525] In terms of context, the important words are "For the reasons set out herein ... ." So what reasons do the Plaintiffs advance for their disquietude and the extraordinary relief they ask in order to dispel it?

[526] Apart from the allegations against Hugessen J. and Russell J., which I will come to later, the first reason given against the Federal Court itself appears at paragraph 15 of the written argument:

...

(a) Judicial Criticism of the Federal Court

15. The Federal Court was the subject of judicial criticism in the seminal case of Paulette. In that case, where First Nations of treaty 8 and treaty 11 were being allowed by a Court of the Northwest Territories to present their oral history evidence concerning the meaning of those treaties and were taking the position that the extinguishment clauses in those treaties did not provide the Crown with a legal right to the land, (i.e. the aforestated warning included in the Report of the Royal Commission on Aboriginal Peoples as set out below), a Federal Court judge attempted to assume jurisdiction of the case in the middle of the trial. The presiding judge, Morrow J., would not allow it. He criticized the Federal Court judge. He found that the actions of the Federal Court ran "the risk of throwing a cloud on the reputation of the Federal Court" in that it "may give the public the impression that the Federal Court can be made to jump whenever asked to by the federal Government".

Paulette, supra, per Morrow J.

...

[527] As already mentioned in these reasons, I have reviewed the decision of Morrow J. in Paulette. He does not criticize the Federal Court or any judge of the Federal Court.

[528] In Paulette, the Crown had contended that the Supreme Court of the Northwest Territories was without jurisdiction on a particular matter, and that the proper forum was the Federal Court, to which the Crown had made an application for a writ of prohibition to prohibit Morrow J. from continuing the proceedings. Morrow J.'s criticism was directed at the Crown's conduct, not at the Federal Court.

[529] For convenience on this issue, I will again quote what Morrow J. actually said in Re Paulette et al and Registrar of Titles (No. 2), 9 C.N.L.C. 307 (N.W.T.C.S.) at paragraph 9:

[530] By quoting words from this paragraph completely out of context, Plaintiffs' counsel have changed their meaning entirely. It was not the actions of the Federal Court that Morrow J. criticized, it was the actions of the Crown, and he does not criticize "the Federal Court judge," as the Plaintiffs assert. Morrow J. is expressing concerns in Paulette about how the actions of the Crown may impact adversely on both his Court and the Federal Court, and it is particularly telling that the Plaintiffs fail to quote Morrow J.'s assertion that the Federal Court is "manned by respected and able judges ... ."

[531] So Plaintiffs' counsel quote words entirely out of context and then ascribe to them an interpretation that the full context reveals is not apt.

[532] I am not quite sure what the reasonable person would make of this, but I am quite sure he or she would not regard it as any kind of evidence for an apprehension of bias about the Federal Court and its judges.

[533] The purpose of the truncated quotation in paragraph 15 is to suggest, by innuendo, that the Federal Court "jumps" whenever asked to do so by the federal government. This innuendo is then used to bolster an argument that Hugessen J. and Russell J. have demonstrated a reasonable apprehension that they are prone to some kind of apprehended systemic bias within the Federal Court, and that they appear to have jumped when asked to do so by the federal Crown. I do not think any reasonable person would find these connections are established by the Plaintiffs.

[534] The second justification given by the Plaintiffs for their view that they need to have a say in choosing a judge because of their fear that they will not receive an unbiased trial occurs at paragraph 16 of their written brief:

...

(b) The Struggle for Recognition of Self-Government Rights

16. The right of self-government of First Nations has been recognized internationally and domestically. Yet First Nations are forced into the Courts for recognition. In a report prepared in accordance with the Commission on Human Rights Resolution 2004-62 at the invitation of the Government of Canada Dr. Stavenhagen, after having conversations with Federal, Provincial and Territorial authorities, representatives of aboriginal peoples' organizations, members of the academic world, and members of aboriginal communities in Nova Scotia, Quebec, Manitoba, Ontario, and Nunavut stated:

"21. In recent years these issues have been brought before the Supreme Court for legal interpretation, and certain landmark cases have contributed to reaffirming aboriginal rights in various areas. It is claimed, however, that indigenous

communities must often return to the courts to obtain compliance by the Government with earlier court decisions. This has led to almost endless and costly litigation so that all parties involved appear to be eager to find other more efficient solutions. A possible alternative would be legislation on aboriginal treaty and constitutional rights. A step in this direction was taken in October 2004 with the introduction in the Senate of the First Nations Government Recognition Act (Bill S-16)."

Affidavit of Philip Healey

Dr. Rudolfo Stavenhagen, United Nations Special Rapporteur's Report on His Mission to Canada, Commission on Human Rights, December 2, 2004

...

[535] The relevance of this quotation from Dr. Stavenhagen for the Plaintiffs' allegations against the Federal Court is not clear and is not explained. As I read it, Dr. Stavenhagan's remarks appear to be a criticism of government, which refuses to countenance international recognition for a First Nations' right to self-government, and which forces indigenous communities to "return to the courts to obtain compliance by the Government with earlier court decisions."

[536] So the implication for this motion is, presumably, that the federal Crown is attempting to thwart internationally recognized rights by forcing the Plaintiffs to take legal action. This is not evidence or argument for any kind of apprehended bias in the Federal Court. As with the quotation from Paulette, Plaintiffs' counsel are equating the federal government with the Federal Court. But neither quotation does that. Dr. Stavenhagen says that the "courts" enforce "compliance by the Government with earlier court decisions." That is what courts do. Irrespective of who the parties are, they enforce recognized rights in an impartial way that is

consistent with previous decisions. This activity is not bias, apprehended or otherwise. Nor have I ever seen the enforcement of recognized rights by a "court" referred to as bias.

[537] To make sense of this paragraph, the Court has to surmise that it is connected to the Plaintiffs' unsupported assertion that Paulette is authority for the proposition that the reasonable person would apprehend that the federal government is able to make the Federal Court "jump."

[538] I am drawing out these points, not to belittle or traduce the position that First Nation's peoples have taken towards the government of Canada. And, I am well aware of what Ms. Eberts, in her submissions, refers to as the "oft-documented sense of estrangement of First Nations from the legal system of Canada." But my job in this motion is to assess what the Plaintiffs adduce to show that a reasonable person might apprehend bias either within the Federal Court generally, or with regard to Hugessen J. and Russell J. in particular. The arguments presented in paragraphs 15 and 16 of the Plaintiffs' written brief do not assist the Plaintiffs or the Court. And if it is a "sense of estrangement" that the Plaintiffs are attempting to bring to the Court's attention, that estrangement is not evidence of apprehended bias in this case.

[539] I think it has to be made clear that, in this motion, I am not here to defend the Federal Court or Justices Hugessen and Russell against the allegations of apprehended bias raised by the Plaintiffs. A judge carries no brief. But I do need evidence and tenable arguments that I can assess in accordance with the governing jurisprudence. To leave the Court struggling with vague

allegations does nothing to assist the Court in resolving the issues raised in the motion. And it certainly does not assist the Court in assuaging any sense of "estrangement" that the Plaintiffs might feel with the legal process.

[540] Similar problems arise in relation to paragraph 17 of the written brief:

...

Mitchell, supra, (S.C.C.) McLachlin C.J. (Gonthier, Iacobucci, Arbour, and Lebel JJ. concurring) at paras. 125 to 130

...

[541] There is no explanation of what this has to do with apprehended bias. Plaintiffs' counsel are well aware that the Crown intends to raise with the Court this very issue and that the Court will be asked to examine the pleadings in conjunction with the will-says after full argument, and decide what aspects of self-government have actually been pleaded. This paragraph looks like an assertion that the Court must accept the Plaintiffs' views on that issue before the Court has even had the opportunity to hear argument on point. It is not evidence of apprehended bias, either within the Federal Court or on the part of particular judges, that the court cannot commit itself to the Plaintiffs' viewpoint before it has been presented with evidence and argument. And this motion has delayed the Court's consideration of that very issue. If this case is significant for the

Plaintiffs, it is also, presumably, significant for the Crown and the Interveners. For the Court to embrace the Plaintiffs' position at this stage would not be appropriate, and the Court's refusal to do so is not evidence and/or argument for apprehended bias, and no reasonable person would think it was.

[542] In order to support their case for apprehended bias within the Federal Court, the Plaintiffs then direct the Court to consider the following:

...

(d) Allegations of Apprehended Bias by First Nations in the Federal Court

18. Recently, in significant Indian rights cases in the Federal Court, allegations of apprehended bias have been raised.

Sawridge, Tsuu T'ina, Ermineskin, supra, (F.C.A.)

Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) (2001) 201 D.L.R. (4^th) 35 (F.C.A.)

Samson Indian Band and Nation v. Canada, [1998] F.C.J. No. 688 (F.C.A.)

...

[543] Once again, the Court is left to make of this what it will. The suggestion appears to be that allegations of bias would, in the mind of a fully-informed, reasonable person, give rise to or support a reasonable apprehension of bias in this case. Plaintiffs' counsel do not even bother to address the results in these particular cases. But I suspect a reasonable person would be

interested in what the outcome was. For example, I think the reasonable person would be

interested in the following words from the Federal Court of Appeal when it considered Teitlebaum J.'s decision not to recuse himself in the Samson case:

Samson Indian Band v. Canada, [1998] F.C.J. No. 688 at paras. 8, 10 and 11

[544] I mention these words here because the Plaintiffs argue that, in this motion, they are "following the direction of the Federal Court of Appeal" and they place significant emphasis upon the Federal Court of Appeal's decision after the first trial. But they do not appear to think that the directions of the Federal Court of Appeal in Samson are relevant. In fact, the relief requested in this motion suggests that the Plaintiffs believe that the conclusions in Samson are entirely irrelevant, which is why the Court finds it difficult to understand why Plaintiffs' counsel cites Samson in support of the motion. Like Paulette, Samson stands for something that does not support the Plaintiffs' position and, in my view, that is how the reasonable person would see it.

[545] The Plaintiffs then attempt to show how the Federal Court of Appeal's findings in relation to the decision of Muldoon J. in the first trial can be connected to the decisions and actions of Hugessen J. and Russell J. to create an apprehension of systemic bias in the Federal Court in this case. In paragraph 19 of their written brief they set out the following:

...

(e) First Nation Complaints About Federal Court Judges

19. Following the finding by the Federal Court of Appeal that Muldoon J. demonstrated apprehended bias, a complaint was registered with the Canadian Judicial Counsel by one of the co-plaintiffs of the Plaintiffs, the Ermineskin Indian Band. It was referred by Chief Justice Clarke to a Panel of the Canadian Judicial Council consisting of Chief Justice R. Roy McMurtry, Chief Justice of Ontario; Chief Justice Bryan Williams, Chief Justice of the Supreme Court of British Columbia; and Chief Justice Richard Scott, Chief Justice of Manitoba, who acted as Chair. The decision of that Panel is relied upon by the Plaintiffs. The issues of concern raised by the Panel are present in this process and are relevant to the present apprehension of the Plaintiffs. They include issues about: "appropriate judicial speech"; "the need for judges to be judicious in hearing cases"; "going beyond what was actually necessary to decide the issues before you and in so doing invoking unnecessarily disparaging and offensive language"; "use of needless inflammatory, derogatory language, sometimes on matters of little or no relevance"; "inappropriate use of judicial office". As examples:

(a) Muldoon J. - "highly fascist and racist notion"; "ancestor advocacy or ancestor worship"; "Indian reserve apartheid"; "perpetual dependence on Canadian taxpayers"; "their state of development might be likened by analogy to 'adolescent' compared with the others (non-Indians) 'adult' state of development;

(b) Hugessen J. - "that, in my view, is an absurd proposition"; it is "radical"; "I note the Plaintiff for the show of bravado which inspires at least astonishment on my part"; "this is argument is a simple "red herring""; "this extraordinary submission"; "I attempted to extract from counsel for the Plaintiffs some kind of useful suggestion as to how this might be done but, no doubt due to inability on my own part to make myself clear, I was unsuccessful"; and

(c) Russell J. - "the arguments are spurious and disingenuous"; "tailoring some of its evidence"; "exercise in rank opportunism that is dismissive of the rights of other parties"; "any problem is no where near the magnitude of what the Plaintiffs have caused by their naming 150 potential witnesses"; "their inadequate excuses"; "there is no way for anyone to judge whether their purpose is genuine or obstructive"; "the Plaintiffs - simply cannot be trusted"; "the barrage of witnesses"; "this matter is of extreme concern to me because, not only does it raise professional conduct issues, but it impacts negatively upon the administration of justice in this dispute"; "the Plaintiff's invitation to put its head in the sand"; "used by the Plaintiffs as an opportunity to try, yet again, to neuter the Interveners"; "appear to think they can do merely as they wish".

Affidavit of Philip Healey

...

[546] I have already explained why the decision of Muldoon J. has no relevance for these proceedings. But over and above this, it is apparent that the intent of Plaintiffs' counsel in this paragraph is to find some way of yoking Hugessen J. and Russell J. to the finding of apprehended bias against Muldoon J.. The method chosen is a juxtaposition and comparison of a plethora of out-of-context remarks. But even at this level, it is immediately apparent that the quotations attributed to Muldoon J. are of a totally different order from those attributed to Hugessen J. and Russell J..

[547] The remarks attributed to Muldoon J. are obviously politically charged and directed at public debate and polemic. The remarks attributed to Hugessen J. and Russell J. are obviously not politically charged, do not refer to polemic, and are directed at arguments and conduct advanced and engaged in by Plaintiffs' counsel during these proceedings. They are very much of a kind with the remarks I am making in these reasons concerning irrelevant and untenable assertions made in the written materials. They do not connect Hugessen J. and Russell J. to the Federal Court of Appeal's criticism of Muldoon J. in any way, and no reasonable person would see such a link. As for the issues of concern raised by the Panel of the Canadian Judicial Council, I have already dealt with what appear to be the Plaintiffs' principal concerns about the language used by Hugessen J. and Russell J. in this case.

[548] The Plaintiffs then single out another judge for censure and evidence of a general reasonable apprehension of bias within the Federal Court:

...

21. There is a pending complaint from a First Nation about the Associate Chief Justice of the Federal Court (Trial Division) because of a statement made by Him (sic) that He (sic) would not assign an aboriginal person to act as a judge on a significant Indian rights case, which is a complaint with which the Plaintiffs are aware of and agree with. In fact, in the context of that complaint, the Plaintiffs note that Federal Court judges are required by law to live within a radius of Ottawa.

Complaint against the Associate Chief Justice of the Federal Court (Trial Division)

...

[549] I can see that having to reside in Ottawa might not be an entirely happy imposition for some Federal Court judges, but I do not think a reasonable person would see such a requirement as a ground for a reasonable apprehension of bias, either against the Federal Court, or the individual judges involved in this case. It is something which the Federal Court of Appeal and the Supreme Court of Canada appear to accept without, as the Plaintiffs' confirm, appearing to be biassed. So I see no inherent reason why Federal Court judges should be seen as any more inclined to bias by reason of proximity to the federal government than judges of the Federal Court of Appeal or judges of the Supreme Court of Canada. However, it is the "complaint" concerning the former Associate Chief Justice of the Federal Court that is most telling here.

[550] The Plaintiffs appear to think that the mere association of the word "complaint" with "Associate Chief Justice" is sufficient evidence and/or argument. I know no rule of evidence

(and the Plaintiffs do not cite one) and no convention of argument that would make the innuendo apparent in this paragraph a factor for the reasonable person to take into account.

[551] My review of the materials filed reveals that the only evidence in support of this allegation is found at exhibit "G" to the affidavit of Mr. Healey, who is a witness in this application, as well as one of the lawyers who prepared the written brief. Exhibit G is an excerpt from the "Written Argument of the Applicants, Chief Victor Buffalo and the Samson Indian Band and Nation" and is, in fact, paragraphs 15 and 16 of that argument.

[552] Paragraph 15 is hearsay but is purported to be based on the Affidavit of Chief Florence Buffalo, which is not attached to Mr. Healey's affidavit. Paragraph 15 alleges that the Associate Chief Justice said certain things during the course of a telephone conference. Paragraph 16 says that no court reporter was present and that no transcript or other court record is available to show what the Associate Chief Justice actually said. However, there are, apparently, summary minutes of the telephone conference prepared by a registry officer. Those summary minutes are not attached to Mr. Healey's affidavit.

[553] Hence, in his affidavit and his written argument, Mr. Healey has chosen to make what he obviously regards as a serious allegation against the former Associate Chief Justice of the Federal Court, but has not produced anything in the way of evidence that this Court can use to review the matter. It is mere innuendo and hearsay. No reasonable person would accept such evidence

and/or argument as indicating any inherent bias on the part of the Federal Court or Justices Hugessen and Russell.

[554] Finally, and apart from the specific allegations, made against Hugessen J. and Russell J., Plaintiffs' counsel invites the Court to consider the following:

...

20. Counsel for the Plaintiffs has indicated that although he has had the pleasure of making submissions in the Supreme Court, all of the Courts of Ontario, the Alberta Court (Queen's Bench), and various administrative tribunals, he has never been treated or had his arguments described in such a way. He has had the good fortune of receiving complimentary judicial remark in other Courts. His acting on behalf of the Plaintiffs as counsel in this case is the exception.

Affidavit of Philip Healey

...

[555] I believe this paragraph has to be connected with paragraph 19 and that Mr. Healey is referring to remarks made by Justices Hugessen and Russell as part of their decisions and other duties in these proceedings. Some of those remarks have already been addressed.

[556] Mr. Shibley has asked that opposing counsels' criticism of Mr. Healey's conduct in these proceedings not be made the focus of this motion, and I have agreed with him in a general sense. But to totally neglect Mr. Healey's conduct would be to neglect a fundamental part of his own argument, because he squarely places his conduct before the Court and invites the Court to address it as part of the apprehended bias allegations. He also reveals quite clearly in paragraph

20 quoted above that there is a significant personal dimension to this motion, and I will address the implications of that later.

[557] Suffice it to say in relation to paragraphs 19 and 20 that the comparison that Mr. Healey invites the Court to draw would only be meaningful if the Court had before it evidence that he has conducted himself before other courts, and made the same kinds of arguments, that he has made before Justices Hugessen and Russell, and that are very much in evidence in the written submissions I am presently discussing. Mr. Faulds tried to draw my attention to the fact that there is evidence to suggest that, perhaps, Mr. Healey has not faired quite as well before other courts as he suggests in his written brief, but I do not want this motion to go in that direction.

[558] Mr. Healey has presented no evidence of his experience before other courts that could justify any meaningful comparison with his experiences before Hugessen J. and Russell J., and no reasonable person could draw any conclusions about apprehended bias based upon what he says, particularly when it is borne in mind that Mr. Healey is a witness, the principal author of the written argument, and the lawyer whose treatment by Hugessen J. and Russell J. the Court is being asked to examine.

[559] So, apart from the specific allegations against Justices Hugessen and Russell, what have the Plaintiffs provided to the Court for consideration from the perspective of the reasonable person? They have presented elliptical quotations taken out of context, skewed interpretations,

much that is simply irrelevant, quotations that do not stand for what the Plaintiffs say they stand for, hearsay and innuendo.

[560] There is nothing here that a reasonable person would consider as giving rise to a reasonable apprehension of bias within the Federal Court. As for the Plaintiffs' apprehensions about receiving an unbiased hearing in the Federal Court and what I surmise to be a suggestion of "estrangement" from the processes of this Court, my view is that the arguments put forward in the written brief do not assist in alleviating that feeling. In fact, quite the reverse; they appear to me to build and exacerbate alienation and estrangement.

[561] Against all of this, however, there is, in fact, a clear message in the materials about what the Plaintiffs' real apprehensions are concerning the Federal Court. With exemplary candour, Chief Roland Twinn, during cross-examination on his affidavit for this motion, came directly to the point:

Q. Okay. Now one of the other pieces of relief that's asked for here in this case is that the possibility that the matter could be transferred to - in your Affidavit, paragraph 4, it says: the Provincial Court. So which Court is that?

A. The Court of Queen's Bench.

Q. Any do you have any specific judge in mind in the Court of Queen's Bench?

A. No, I do not.

Q. Can you tell me why you say the Court of Queen's Bench might be more inclined to be fair to your case than the Federal Court?

A. It is my belief that the Provincial Court has had some more favourable rulings towards First Nations.

(Roland Twinn cross-examination, page 11: 10 - 23)

[562] Chief Twinn cannot be faulted for wanting a judge who will see matters as he sees them and give him the relief he wants. That is his job and it is what all plaintiffs want. But a judge who does not see things the Plaintiffs' way, on some particular procedural decision such as has occurred in this case, does not, for that reason, create a reasonable apprehension of bias, and decisions against the Plaintiffs on procedural matters do not, per se, give rise to a reasonable apprehension of bias. By asking the Court for a say in picking the judge who will hear this case (even as modified at the hearing to a request that I recommend to the Chief Justice of the Federal Court that they have a say), the Plaintiffs are clearly concerned to find someone who will be more disposed to their case than they believe Russell J. to be. The problem with this is that the Federal Court of Appeal, who the Plaintiffs appear to trust, has said in Samson that it cannot be:

In our view, what the Appellants seek in these appeals is the removal of Teitlebaum J. as trial judge and his replacement by a judge of their own preference to preside over what are admittedly two important trials. This approach to the selection of a trial judge is foreign to the practice of this Court. We do not wish to encourage it in any way.

Allegations Against Hugessen J.

[563] Besides making unsubstantiated allegations that Hugessen J. acted "in a very unusual way" and was "aggressive" towards the Plaintiffs during the case management process, the written argument adds very little to Mr. Shibley's oral argument.

[564] The Plaintiffs appear to suggest that, throughout the whole period of Hugessen J.'s involvement, their actions were entirely reasonable and they met all deadlines. Hence, Hugessen J.'s "unusual" and "aggressive" approach was unwarranted and suggests a reasonable apprehension of some kind of pre-disposition to forestall the Plaintiffs' right to raise and argue self-government.

[565] The record itself shows that matters were entirely otherwise. The actions of the parties required considerable intervention by the case management judge to ensure that the proceedings moved forward. The record also shows that the Plaintiffs were hardly the paragons of reasonableness on all occasions they now profess to have been.

[566] The Plaintiffs appear to expect the Court to somehow re-assess what occurred during the case management phase and then connect it with the Federal Court of Appeal decision in 1997 to order a new trial. Quite apart from issues of res judicata, there is no meaningful way that this can be done after such a lapse of time. I cannot pronounce upon matters that were not brought to the attention of Hugessen J. in the way that the law demands.

[567] Their main ground of complaint once again is that, after allowing the 1998 amendments, Hugessen J. then gives a reasonable apprehension that he went on to try and dictate what the re-trial should be about, and said that the issues were "fundamentally the same as they were at the first trial" and that the changes in the law brought about by the relevant Supreme Court of

Canada decisions "do not have the effect of changing the factual matrix upon which the case must be decided."

[568] This is intended to show that Hugessen J. reasonably appears to have made a decision concerning the case "before all of the evidence from all the parties has been heard" and "appears to have given His (sic) unsolicited view concerning how He (sic) would apply the first part of the Van der Peet test" and that he "would decide it against the Plaintiffs."

[569] I have already pointed out that these remarks, taken entirely out of context, were not made in a decision where Hugessen J. was asked to interpret the pleadings. Also, when the Plaintiffs appealed his Order of December 7, 2000, they did not assert that Hugessen J. appeared to be biassed or had mischaracterized their claims and their appeal was dismissed.

[570] But it is also worth bearing in mind that when the Plaintiffs sought amendments to their pleadings in 1998, and relied upon the Van der Peet, Pamajewon and Delgamuukw cases, they made the following submission:

We are saying, as a government, we have the right to determine who our citizens are ... we are not saying we have a right to self-government at large. That is not what this case is about. We are saying we have a right to this fundamental aspect of self-government.

(Transcript of September 23, 1998, Motion at 37: 3-5 and 37: 19-22)

[571] So given the kind of language the Plaintiffs themselves were using at that time, Hugessen J.'s characterization is entirely understandable. Just because the Plaintiffs now assert that this case is about "self-government at large" does not mean that Hugessen J. mischaracterized the issues in December, 2000, or even gives the reasonable appearance of having done so.

[572] In any event, the amendments were allowed in 1998 and the pleadings mean what they say. Hugessen J. did not change the pleadings after 1998 and their scope has yet to be determined by the Court. There can be no allegation of bias in any form unless and until the Court does interpret the scope of the pleadings and the Plaintiffs can show that they do encompass "self-government at large," or self-government as they now wish to define it.

[573] The Plaintiffs argue that Hugessen J.'s statements in his December 7, 2000 Order "had the effect of assisting the Crown and the Interveners in their efforts to strike the self-government claim. It appears that Russell J. adopted the same approach."

[574] But no self-government claim has been struck. If, contrary to the Plaintiffs' representations to the Court in 1998, this case is about "a right to self-government at large," then the pleadings as amended in 1998 will show this; they have not been struck. When Russell J. denied some of the Plaintiffs' proposed amendments in 2004, he did not strike any claim that was already in the pleadings. He disallowed proposed amendments for the reasons he gave in his decision, and the Plaintiffs accepted the result and did not appeal it.

[575] There is no evidence before the Court or the reasonable person in this motion that Russell J. made the June 29, 2004 decision on the basis of anything more than the materials that were placed before him as part of the application or that there is a reasonable apprehension he might have done so. But, even if he had, his decision would have been entirely consistent with the Plaintiffs' own assurances in 1998 that this case is not about "self-government at large."

[576] And Russell J.'s decisions concerning the Plaintiffs' will-say statements to date have been aimed at nothing more than ensuring that the Plaintiffs comply with those parts of Hugessen J.'s Pre-Trial Order of March 26, 2004 that dealt with will-says. Russell J. has made no decision to date on whether or not the will-says submitted by the Plaintiffs are relevant to the pleadings or are inadmissible on any other ground.

Allegations Against Russell J.

[577] The remaining 65 pages of the Plaintiffs' Memorandum of Argument are a, sometimes vitriolic, attack upon the role played by Russell J. since his appointment as trial judge in 2004.

[578] Much of it is an attempt to drag the Court back over old arguments that the Court has rejected in its decisions: the implication being that the Court got it so wrong that any reasonable person would apprehend bias.

[579] Quotations are taken out of context and/or most of the context that a reasonable person would need to judge the allegations is just not provided. Elliptical quotations are occasionally used. Unsupported assertions are made that are just plain wrong. Plaintiffs' counsel have culled the whole record for words and passages that can be assembled into a revisionist collage of what has transpired.

[580] Any attempt to cite in full relevant portions of the record to provide the complete context for the positions put forward by the Plaintiffs would require a gargantuan effort on the part of the Court. In a motion for apprehended bias, where context is everything, Plaintiffs' counsel have gone out of their way to provide a very unbalanced account of what has taken place. As I mentioned earlier, this seems to be the inevitable consequence of counsel wearing so many hats at the same time. Objectivity and a sense of proportion are lost.

[581] On the other hand, the allegations made are so serious (some of them amounting to actual bias) that the Court is compelled to make some effort to come to terms with this material, lest it be thought that silence is concurrence and the Plaintiffs' people are left with the impression that the Court just doesn't care about such matters and they lose their confidence in the integrity of the proceedings.

[582] Much of what appears in the written argument has already been addressed in the Court's response to Mr. Shibley's oral argument and I do not intend to repeat what I have already said. However, I believe the following examples reveal why this material cannot form the basis for a reasonable apprehension of bias:

1. There is an allegation at paragraph 77 that the reasons of Russell J. dated June 29, 2004 were "unusual because there was nothing in the motion records filed with Russell J. which could account for such conclusions and findings."

I have already pointed out that this is simply not the case. The reasons make quite clear what the points of reference for that decision were and the Plaintiffs had no problem with it because they did not appeal it.

Raising these issues now is an example of a retroactive, revisionist approach to the record that the reasonable person would not find persuasive.

2. The following allegation appears at paragraph 79:

It appeared that Russell J. was prejudging the self-government issue and taking a prejudgmental position concerning the evidence, just as it appeared that Hugessen J. had done on December 7, 2000 (two years after he allowed the amendments). Put otherwise, Russell J., like Hugessen J. before Him (sic) appears to have indicated an intention to decide the first part of the Van der Peet test against the Plaintiffs, and thereby dispose of the Plaintiffs' claim to self-government.

This statement is untrue for reasons already given; however, behind it lies the following logic: Hugessen J. and Russell J. have demonstrated a reasonable apprehension that they have a pre-disposition not to allow the Plaintiffs to call evidence on an issue (self-government at large) that the Plaintiffs have yet to establish is raised by the pleadings.

Quite apart from the fact that Russell J. has made no final decision yet about what evidence the Plaintiffs can call, or when they can call it, there can be no allegation of apprehended bias on these grounds unless and until the Plaintiffs have established that "self-government at large," as they called it in 1998, or self-government as they wish to define it now, is encompassed by the pleadings.

All they do is assert that it is, and insist that the Court accept that position as an established fact. But the Court has yet to hear argument on this very issue.

3. In paragraph 80(b), in a context where the Plaintiffs attempt to re-argue the whole will-say issue again, they say "It should be noted that the PTO did not require that they [the will-says] be individualized. It only required that a witness list be provided."

Paragraph 9 of Hugessen J.'s Pre-Trial Order of March 6, 2004 reads as follows:

All persons intending to lead evidence at trial (including oral history evidence) shall serve witness lists and "will-say" statements (including language if other than English and name of interpreter if known) on or before September 15, 2004.

It is difficult to see how anyone can provide a "will-say" unless they have interviewed individual witnesses to find out what a witness will say. Individualisation is inherent in the concept of "will-say." A will-say is not a list of topics put together before witnesses have been interviewed.

In any event, the Plaintiffs accepted Russell J.'s Order and the format for will-says and did not appeal. Consequently, it is simply not the case that "the Plaintiffs continue to meet all Court set deadlines to have the case ready for trial," as the Plaintiffs now assert.

The Plaintiffs are now asking the Court to reconsider its own will-say Order and find, from the perspective of the reasonable person, that there is a reasonable apprehension they were not in breach of the Pre-Trial Order.

These matters are all res judicata. The Plaintiffs could not convince the Court the first time; and they produce nothing that would convince the reasonable person now.

4. In paragraph 89, the Plaintiffs point out:

In His (sic) determination of the motion [this was the Crown motion asking that Dr. von Gernet be allowed to comment upon credibility issues]. Russell J. agreed with the position of the Plaintiffs. He adopted trite jurisprudence from the Supreme Court of Canada that "the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact and it is not the proper subject of expert opinion."

At this point, one wonders what apprehended bias Russell J. can be said to have shown by deciding an issue in favour of the Plaintiffs. The suggestion is, of course, that the jurisprudence was so "trite" that Russell J. just couldn't find for the Crown, as was his natural inclination. But then the Plaintiffs continue:

Despite the fact that He (sic) found that there was no support for the Crown's submission, and that this was not the endorsed approach in Benoit, He (sic) did not attribute any improper motive to the Crown in seeking the relief.

So, in order not to raise an apprehension of bias, it is not sufficient that this Court find for the Plaintiffs; the Court must also attribute an improper motive to the Crown.

The Plaintiffs' concern here appears to be that the Court has been critical of some of the positions that the Plaintiffs have taken and has not been hard enough on the Crown when it has found against the Crown. What this fails to take into account is that the Court's criticism of the Plaintiffs' arguments has occurred when Plaintiffs' counsel has attempted to re-argue matters that are res judicata, or when Plaintiffs' counsel insists the Plaintiffs are not in breach of the Pre-Trial Order when they obviously are. The Crown's position in Benoit was not in the same

category and did not take up a disproportionate amount of Court time. There was no need to correct the conduct of the Crown in the same way that the Court has had to correct Plaintiffs' counsel.

Further, the Plaintiffs are quite inaccurate in conveying the Court's treatment of the Crown. The Court, in fact, criticized the Crown in the motion referred to for trying "to introduce expert evidence on the appropriate treatment of oral history evidence ... under the pretext [emphasis added] that it was intended that this should be done as part of the expert rebuttal reports referred to in paragraph 6 of Justice Hugessen's Order."

These are minor issues, but they are indicative of the lengths to which Plaintiffs' counsel is prepared to go to build a picture of apprehended bias.

Paragraph 91 of the Memorandum of Argument is a prime example of the same kind of skewed interpretation of an order that, if read in context, gives no impression of the Court appearing to favour either side or of trying to encourage any party to the detriment of the other. The Court is trying to make clear to both sides what Hugessen J.'s Pre-Trial Order allows and what it does not allow.

5. In paragraph 95, the Plaintiffs offer the following speculation about what was going on in Russell J.'s mind:

What appears to have been troubling Russell J. however is the Crown's inconsistent position.

Based upon this speculation, the Plaintiffs then go on to make the following allegation in paragraph 96:

In these circumstances, it appears that Russell J. may have been actively assisting the Crown. A reasonable person could easily perceive that He (sic) was trying to relieve against problems He (sic) saw the Crown would be facing.

Vague musings about the inner workings of Russell J.'s mind are neither evidence or argument, and no reasonable person would regard them as such. This approach occurs throughout the Plaintiffs' materials. Bold assertions about what Russell J. must have been thinking, or appeared to be thinking, are offered by legal counsel whose distortions of the actual record are evident enough, and whose perspective on Russell J.'s thoughts is far from objective.

6. An example of a gratuitous slur and an allegation of actual bias occurs at paragraph 101:

He then invited the Crown and the Interveners to provide Him (sic) with jurisprudence to support the positions they were taking. Although one might argue it was not clear what Russell J. was asking for, it is submitted, became clear as submissions were being made in this hearing, that He (sic) was looking for authority that would preclude the Plaintiffs from calling evidence.

A reading of the full context reveals that Russell J. asked both sides for guidance. But, by this point, Plaintiffs' counsel have abandoned all pretense that they are not alleging actual bias, and they depict Russell J. actively looking for ways to preclude their evidence.

7. Paragraph 103 is a good example of the Plaintiffs lifting statements made by the Crown totally out of context, and claiming that they support the proposition that the Crown has already agreed that self-government at large is "in play," and then alleging that the Court refuses to accept what both sides have, in fact, agreed in the case:

Accordingly, once again, the parties are telling the Court that the right to self-government is in play. The question raised on this motion is why is the Court repeatedly saying otherwise?

What the record actually shows is that the Crown has consistently taken the position that the pleadings do not encompass self-government at large and the Court has repeatedly said that it wants to hear full argument on the dispute between the parties on this issue. The Crown has not attempted to argue that all evidence on self-government issues is irrelevant. The bone of contention is self-government at large.

8. Paragraph 110 is a typical example of the Plaintiffs' approach to using a quotation out of context and then attaching a slur to it that is, in reality, an allegation of actual bias:

Despite the obvious problems with the motion, Russell J. returned to his area of concern. He actually started talking about whether or not there would even be a need for a trial. It was becoming clear, if not perfectly clear, that the authority which He was seeking was to preclude the Plaintiffs from calling any evidence. The Plaintiffs wish to stress that this was the first time that they argued a motion in person before Russell J. and that he had not yet heard from the Plaintiffs. Russell J. stated:

"No, I don't think there are any questions. I think both sides have agreed on the importance of these oral histories at the trial, and let's face it, I mean, there isn't going to be much of a trial, is there, without the oral histories?" (emphasis added)

The full context reveals that Russell J. was questioning Crown counsel on the implications of acceding to the Crown's request to exclude the Plaintiffs' witnesses. In other words, Russell J. was resisting what the Crown was urging him to do and was looking for a way to ensure the Plaintiffs could remedy their default and produce their evidence.

Yet the Plaintiffs have it that it was becoming "perfectly clear" that Russell J. was actively seeking the legal authority he needed to support a decision he had already made to prevent the Plaintiffs from calling evidence.

The same occurs in paragraph 114.

9. Here is an example of a distortive statement that is attached to nothing. It occurs in paragraph 115:

Hugessen J. and Russell J. were of course aware at the time of making these statements [i.e. about the central issue in the proceedings] of the substantial amendments and the fact that there was a complete trial record on the right to determine membership, which did not address the present pleaded right to self-government.

The distortion is the implicit suggestion that Hugessen J. and Russell J. knew that the pleadings encompass self-government at large; but the Plaintiffs know that what the Crown disputes is this very issue. And they also know what representations they made to the Court at the time of the 1998 amendments and what Russell J. said about some of their proposed amendments in 2004.

So the logic, once again, is that Hugessen J. and Russell J. have raised a reasonable apprehension of bias by refusing to allow the Plaintiffs to call evidence on an issue that the Plaintiffs have yet to demonstrate is contained in the pleadings, and in a situation where the Court has yet to consider either the scope of the pleadings or the relevance of the Plaintiffs' evidence to the pleadings.

10. Paragraph 119 is another de-contextualised quotation to which a clearly untenable and skewed interpretation is attached: "Then in a clear attempt to convince the Court to impose an unfair timetable on the Plaintiffs, which Russell J. did, (emphasis added) Mr. Faulds repeated the submissions of the Crown."

The same occurs in paragraphs 121 and 124.

11. An example of revisionism occurs in paragraph 128(g):

by adopting the position He (sic) did adopt, Russell J. did indirectly what He (sic) could not do directly. There was, it is submitted no authority for Him (sic) to do what He (sic) proposed. He adopted an approach with a similar result. He ordered the Plaintiffs to write out all of the evidence from Elders and others before trial in a short time frame. The Plaintiffs were not able to do that in the time frame allowed and lost evidence;

As discussed earlier, this is the first time the Court has heard the assertion that the Plaintiffs were not able to do something within a time frame they asked the Court to set (December 14, 2004), or that they "lost evidence." The record reveals an entirely contrary situation, as already discussed.

12. In relation to paragraph 143 and the Court's remark about Mr. Henderson's "hint," the Court was recalling the exchange between Ms. Kohlman and Mr. Henderson that occurred at the September 7, 2004 Pre-Trial Management Meeting. Ms. Kohlman was complaining about the materials the Plaintiffs had provided as will-says and she stated, at page 153, lines 8 - 13 of the transcript as follows:

We would like a more general statement about what that evidence is, who will be giving it, and who will be giving it about each witness. It is not a difficult thing to provide. We simply ask for that to be provided well in advance of trial. I don't understand the resistance.

Mr. Henderson then replied as follows at lines 14 - 21:

If that is all that is being asked for, I think we can definitely do that, but I can't do it in a few days. It is going to have to be weeks of work to do that. That's the first time I have heard someone say that, no, it is not in effect an outline of the evidence. It is a connection of the person to the evidence. That's really what you are asking.

Although Mr. Henderson is saying that he did not understand that more than an "outline" was required, he is acknowledging that what was provided did not connect "the person to the evidence" and that he was willing to provide what the Crown said it needed. In the Court's view, a "will-say" is something that connects the person to the evidence. Also, Mr. Henderson is hinting that, if the person is to be attached to the evidence, some time will be needed ("weeks of work") to do that. What he is not revealing, and what has only been made clear in the cross-examinations of Mr. Healey and Ms. Twinn for this motion, is that the reason the person has not been attached to the evidence is because the Plaintiffs had not interviewed their (we don't know how many) proposed witnesses. Mr. Healey, of course, went on to argue at the "will-say" motion hearing that the Plaintiffs' will-says were compliant even though, the Court assumes, he must have known that witnesses had not been interviewed.

The Plaintiffs are correct that Mr. Henderson did not explicitly concede that the Plaintiffs had deliberately breached the Pre-Trial Order, but the Court interpreted this as an indication that the Plaintiffs knew well enough that what they had provided did not disclose what any witness would say, and that, combined with

other evidence the Court heard on October 7, 2004, suggested to the Court that the Plaintiffs knew that their approach had not been sanctioned by Hugessen J. and that it was bound to give rise to problems. That other evidence included the fact that the Plaintiffs did not reveal until September 15, 2004 - the deadline for the will-says - that their witness list was in excess of 140 people. It also included the fact that they did not disclose the language that each witness would testify in. It is clearly of no use to anyone to be told that a large pool of people will testify "in their indigenous language." The Court was not questioning the Plaintiffs' credibility. They had an approach and a scheme for witnesses that they did not want to change. They disclosed it belatedly to see if the other parties and the Court would go for it. But the full context led the Court to the conclusion that they knew their scheme would give rise to problems when viewed in the light of the Pre-Trial Order and the way it was sprung upon the Court and the other parties. And Mr. Healey's approach was not to concede there were problems and look for a mutually acceptable solution, but to try and force upon the Court and the other parties the obviously deficient materials that had been produced that referred to what were obviously controversial areas of evidence. That unaccommodating stridency was the cause of all that has occurred since in relation to the will-says and relevance issues.

And, once again, following the Court's Order, there was no appeal, no indication that the Plaintiffs disagreed with this finding, and a demonstrated willingness by the Plaintiffs to live by the standards set.

There was also the subsequent revelation that the Plaintiffs had not even interviewed their witnesses (we don't know how many) before they submitted materials on September 15, 2004. So the Plaintiffs were suggesting at the September 17, 2004 meeting that it was the intention of Hugessen J. in his March 26, 2004 Pre-Trial Order, that they could submit will-says before they had interviewed witnesses.

13. In paragraph 146, the Plaintiffs say that, in his reasons of October 18, 2004, Russell J. "repeatedly referred to what He (sic) found to be the Plaintiffs' dishonesty and what He (sic) inferred was the reason the Plaintiffs were being dishonest."

A review of the reasons reveals that the word "dishonest" never appears. Russell J.'s complaint is not that the Plaintiffs are dishonest, but that they merely insist that the proceeding be run their way. Russell J. has not, in previous orders, said that the Plaintiffs are dishonest. They have tried to impose their approach on the

Court, and the Court, for the reasons given, has refused to capitulate. That does not carry an implication of dishonesty.

14. Paragraph 152 is revisionist and does not accord with the record which clearly shows that the December 14, 2004 date was requested by the Plaintiffs and that the Plaintiffs resisted any suggestion that the trial date be postponed.

15. In paragraph 153, the Plaintiffs appear to be asking the Court to consider an appeal of its own decision on will-say standards, or at least they want to argue the issue again. They bring up the Order of McKay J. in the Chief Victor Buffalo case as authority for the appropriate standard in this case. I have reviewed that Order. It does not deal with general standards for will-says. The relevant portions of that Order read as follows:

...

2. The plaintiffs shall advise the Crown of the names of Elders expected to be called as witnesses, and of the essence of their expected testimony of oral history and traditions, on the same basis and schedule, if any, as the parties may agree upon or the Court may direct, in relation to all expected witnesses who are not to be qualified as expert witnesses.

...

So the form and content of the expected testimony of "Elders" is to be "as the parties may agree upon or the Court may direct" for other non-expert witnesses. Then McKay J. goes on to order as follows:

...

6. In providing information contemplated by this Order, the plaintiffs need not provide "will say" statements on the essence of testimony expected to be adduced from individual elders.

...

Chief Victor Buffalo acting on his own behalf and on behalf of all the other members of the Samson Indian Nation and Band and the Samson Indian Band and Nation v. Her Majesty the Queen in Right of Canada, The Minister of Indian Affairs and Northern Development, and the Minister of Finance 11 Jan. 2000, docket T-2022-89.

Quite apart from the fact that the Plaintiffs accepted the will-say standards imposed by Russell J. in this case, they have suggested for their present purposes that Russell J. was well out of line with the will-say standards established by McKay J. in the Chief Victor Buffalo case. But in that case, McKay J. specifically says that the plaintiffs need not provide "will-say" statements for individual elders. In other words, even though he is only dealing with "Elders," he is saying that will-says are not needed.

In the present case, the Plaintiffs' witness list contained the names of many people who were not "Elders," and the Pre-Trial Order of Hugessen J. says all persons intending to lead evidence "shall serve witness lists and "will-say" statements ... on or before September 15, 2004.

So the Plaintiffs do not provide an accurate characterization of the Chief Victor Buffalo case, and they do not explain how it can be equated with the present case where Hugessen J. ordered that "will-says" be provided.

16. In paragraph 154, the Plaintiffs allege a "concerted effort to overload the Plaintiffs." As the Court agreed with the Plaintiffs that the Interveners should bring the motion, it is hard to infer that the Court was any part of "an obvious attempt to overload the Plaintiffs."

However, in paragraph 158, the Plaintiffs say that "Russell J. of course was aware that the Plaintiffs were being forced to respond to these motions in this period."

Once again, without any evidence, the Plaintiffs merely assert an intimate knowledge of the contents of Russell J.' s mind at a particular time. They do not even say he should have been aware; they merely say he "was aware." Surely the reasonable person would need to know whether any of these matters were brought to Russell J.'s attention and whether the Plaintiffs ever asked for relief. The reasonable person would also see from the record that it was the Plaintiffs who pushed to retain the January 10, 2005 trial date and that Russell J. merely imposed a schedule that would allow both sides to do what they wanted to do in the time they said they could do it. The trial date was adjourned by the Court with an

indication that the new date would not be set without counsel's advice on the time they needed to prepare.

17. The conclusions that the Plaintiffs draw from the quotations referred to in paragraphs 160 -170 are not conclusions any reasonable person would reach:

Accordingly, it appeared as if Russell J. was telling the Plaintiffs that He (sic) would decide the case upon the first trial record (i.e. a trial record which had nothing to do with self-government). This is another one of many statements from Russell J. which appeared to confirm His (sic) view about the Plaintiffs' alleged right of self-government.

For example, not only does the full context reveal that, on this occasion, Russell J. had not made a decision about the scope of the pleadings and the extent to which self-government comes into the pleadings, the actual Order that Russell J. made after the "workable solution" hearing specifically rejected the Crown's request that the Plaintiffs' witnesses be excluded and gave the Plaintiffs the time they had requested to complete their will-says.

18. The Plaintiffs go to considerable trouble throughout their Memorandum of Argument to try and show that Russell J. has created a reasonable apprehension that he favours the Crown and the Interveners because he uses a different "tone" with them. This is considerably belied by the Plaintiffs' own evidence on cross-examination that Russell J. is invariably polite and courteous with Plaintiffs' counsel. It is also belied by the reasons, if they are read objectively. Russell J. only adopts a firm tone when the occasion requires it. Yet the Plaintiffs constantly make the kind of complaint that is found in paragraph 179(c):

Russell J. has never addressed a position put to the Court by the Crown or the Interveners with the same tone he has the Plaintiffs, despite these kinds of disingenuous submissions. He has been extremely complimentary to them. (emphasis added)

There is that word "disingenuous" again.

The impression that the Plaintiffs try to give is that Russell J. and Hugessen J. reasonably appear to aggressively berate an ever-reasonable and increasingly beleaguered Mr. Healey, while showering compliments on the Crown.

The record, of course, reveals a very different picture and shows two judges engaged in a constant struggle to move the proceeding forward in the face of, sometimes, less than cooperative counsel. And their stern tone has not been exclusively reserved for Plaintiffs' counsel.

19. The sequence between paragraphs 181 and 193 of the Memorandum of Argument paints a picture of Mr. Healey attempting to come to the rescue of a Court that has succumbed to the machinations of the Crown and the Interveners. Here is the basic outline (edited down):

181. The issue had evolved to the point now where the Court and counsel opposite the Plaintiffs were having open discussion in Court about how the Plaintiffs should not be entitled to call any evidence.

...

185. It is also apt to note that in this motion the position of the Crown and the Interveners was based almost entirely on statements made by Russell J.

186. Mr. Healey then responded. In what now appears in hindsight as a hopeless effort, Mr. Healey attempted to convince Russell J. to treat the Plaintiffs fairly. He was obviously struggling to respond to the complaints he believed were unwarranted, but which the Court appeared to accept.

187. Mr. Healey tried to remind the Court of its obligations to have regard for the Plaintiffs' rights and how the Plaintiffs have been fair in their dealing with the opposite side.

188. To convince Russell J. to be fair, he told Russell J. about what had happened at the last trial.

189. Mr. Healey again corrected the submissions of opposite counsel who were misquoting past orders, hoping that Russell J. would have regard for the real history.

190. Mr. Healey tried to comfort the Court with concern it expressed about Dr. von Gernet ...

I quote this sequence, not to mock its self-regarding distortions, but to highlight the difficulties of dealing with material where the lawyer is providing the evidence, the argument and the gloss on past occasions where he lost before the Court, and now wants the Court to re-assess the situation from his perspective alone. All objectivity is abandoned in the process. Is it evidence? Is it argument? Is it anything the Court or the reasonable person can take notice of? I don't think so.

This is precisely the kind of problem the Court had in mind when it sought Mr. Shibley's assistance:

THE COURT: The principle of the application itself is there can't be double standards in this case. And if I run into evidentiary problems and start making allowances for those problems, I'm committing the sin you tell me I can't commit. And I don't know what that German word of Ms. Eberts was, but it occurs to me once again now. That's why - and, you know, that's why I'm being as up front as I can about that with you.

MR. SHIBLEY: Well, may I put it to you this way: If opinions are being expressed, as I've said already, there have to be reasons. Now, if the reasons are there to support that opinion, I think it's properly before you. But if the reasons aren't there, then, you know, you can't have an opinion at large. I've criticized Ms. Ebert's argument on that footing, and I think the same thing applies to any opinion, even opinions of judges. You always give reasons.

THE COURT: But you don't think it matters whether we call it argument, fact, or whether it qualifies as both?

MR. SHIBLEY: No, I don't say that at all, My Lord, not a bit. And that's one - I was just going to come to that.

THE COURT: Okay.

MR. SHIBLEY: The difficulty with what's gone on here is paragraphs in the memorandum are a mix. It's a mix of argument. Almost invariably there is an element of argument throughout it, because that's why there is a reference to evidence for - or the record of what's gone on. So you get a mix of argument. It's not always expressed, in terms of a submission, but that's the nature of what's gone on.

And then you get some things that are factual in that, and some facts are known to one or other of the deponents. I'm not sure. But the point I'm driving at is no, you can't look at those as though they are uniformly one or the other.

And it is a problem. It is a problem on that account. (emphasis added)

THE COURT: Okay. So I'm going to have to muddle through that on my own I can see.

(Transcript, vol. 4, page 198: 14 to page 200: 12)

Having "muddled through" as best it can, the Court encounters the same problem time and again. Even where evidence and argument are not completely conflated,

the same person providing the argument refers to evidence that is either his or her own affidavit, or his or her own de-contextualized selection from the record, for which he or she then provides a gloss that is little more than a retrospective account of that person's inner thoughts, or an attempt to show that, when hearings took place, Plaintiffs' counsel were obviously right and the Court was obviously wrong.

In the context of this motion for apprehended bias, this kind of revisionist, re-hashing of the past can be of little or no evidentiary or discursive value, and the Court is basically left to just read the whole record on its own.

According to Mr. Healey's account in the Memorandum of Argument, he never puts a foot wrong before the Court, and it is everyone else who is in breach of Hugessen J.'s Pre-Trial Order: "Put otherwise the only party that had met deadlines and not sought extensions was at fault. That, it is submitted, is quite unfair." (para. 195)

[583] The same problems occur after the Plaintiffs appealed the November 25, 2004 decision of Russell J. and raised apprehended bias as a ground of appeal. After this occurred, the Court conducted the de bene esse hearing in Calgary and took evidence from Ms. Florence Peshee, a witness for NSIAA, on December 13, 2004.

[584] At paragraph 224 of the Plaintiffs' Memorandum of Argument, Mr. Healey provides the following subjective musings for the Court to consider:

...

224. Plaintiffs' counsel noticed a difference in the manner in which the Court was responding to submissions made by the Plaintiffs. Some of the position (sic) put to Russell J. were being accepted. It is also apt to note, it is submitted, that this was a further distraction which the Plaintiffs had to contend with to (sic) while attempting to comply with previous orders of the Court.

[585] The evidentiary authority for this observation is given as "Affidavit of Philip Healey."

[586] I do not think that by "distraction" here, Mr. Healey means that Russell J. was now responding positively to some of his submissions. I believe he means that the hearing itself was a distraction imposed upon him by a Court colluding with the Crown and the Interveners to make sure he did not have the time to prepare adequately for trial.

[587] He neglects to mention that, by this time, the trial date had been adjourned by the Order of November 25, 2004 "to a new date to be set by the Court following the resolution of the matters referred to in this Order and any further representation from the parties concerning required preparation time following the motion and any decision made concerning the motion."

[588] But the important point is that Mr. Healey is, once again, alleging actual bias by Russell J. and is also saying that the Court has been intimidated by his appeal of the November 25, 2004 Order into, at last, giving him a fair hearing, thus confirming its own earlier bias.

[589] He relies upon his own affidavit for this assertion, notwithstanding that he has also given evidence that Russell J. always treats him with respect in Court and that it is the decisions of Russell J. he believes show an apprehension of bias against the Plaintiffs' position. So he appears to be suggesting that the evidence for a change of approach by the Court is that Russell J., on this occasion, accepted "some of the position" he was putting to the Court.

[590] I believe that, in assessing Mr. Healey's observations in this regard, the reasonable person would take account of the fact that the Court has accepted some of the "position" that Mr. Healey has put forward on previous occasions, and even before the November 25, 2004 Order was made or appealed, and that the issues on which the Court accepted Mr. Healey's arguments on December 13, 2004 were to the effect of "no ambush at trial" and "no double standards" when it comes to will-says.

[591] The Court's position on these issues at the de bene esse hearing was consistent with the position taken by the Court when it set the standards for the Plaintiffs' will-says and invited the Plaintiffs to approach the Court again in the event they changed their mind and had problems with the will-says of the Crown and the Interveners.

[592] In other words, the reasonable person would see that Russell J. appears to have something of a soft spot for fair play and consistency and, in this regard, he is probably not too unlike other judges of the Federal Court, or any other court in Canada.

Conclusions on the Plaintiffs' Memorandum of Argument

[593] It is just not possible for the Court to address separately in these reasons every allegation and every quotation that appears in the Plaintiffs' Memorandum of Argument.

[594] The Court has tried to "muddle through" as best it can, but the evidentiary and discursive problems in the materials mean that the positions put forward are highly suspect and, even if the document were acceptable on formal grounds, the reasonable person could hardly give it any real weight in terms of the allegations advanced.

[595] There is one respect, however, in which the Plaintiffs' written materials have a very solid evidentiary value that would not be lost on the reasonable person.

[596] The problems that the Court has been attempting to resolve since this matter was returned for re-trial in 1997, have had less to do with the underlying issues in the dispute than they have

with the procedure and conduct of counsel. And these materials are evidence for the reasonable person who needs to understand what some of those problems have been, and continue to be.

[597] Also, strongly on display in the Memorandum of Argument is Plaintiffs' counsel's insistence upon re-arguing issues that have already been decided and which are res judicata. That problem was very much at the heart of the Court's decision of December 6, 2004 dealing with the role of the Interveners. In this motion on apprehended bias, for instance, we see Plaintiffs' counsel again going through the will-say standard issues in an attempt to show that the Court obviously got that decision wrong, so the reasonable person would apprehend bias. Yet, this is a decision that the Plaintiffs (who are not shy of appealing Court orders) did not appeal, and in relation to which Plaintiffs' counsel has indicated to the Court that the Plaintiffs accept the standards set by the Court, and according to Ms. Twinn's correspondence, have actually completed will-says that meet those standards.

[598] Judges are not infallible. They can make mistakes. When they do, the Federal Court of Appeal is there to correct them. If the Plaintiffs cannot accept a Federal Court decision, they can appeal it. Alleging apprehended bias after the appeal period has expired is just a way of avoiding the Federal Court of Appeal and trying to have the issue argued all over again before another trial level judge.

[599] We also see in these materials how unhelpful the elliptical quotation can be. I have already mentioned an egregious example of this device in paragraph 15 of the Plaintiffs' Memorandum of Argument, but it is not the only one.

[600] And, of course, there is the general tendency prevalent throughout in this motion of using selective quotation, de-contextualizing the record, and a reliance upon innuendo and revisionist statements.

[601] Elliptical quotation, innuendo and revisionism are neither evidence nor argument. They contribute nothing to the matter in hand.

[602] In the context of a single motion, these practices might not seem like much of a hindrance, but in the context of a long dispute (that has been going on since 1986, and where it was as long ago as 1997 when the matter was returned for re-trial, and where the trial looks like being lengthy), these things are a major concern because their deployment impedes the efficient administration of justice. The whole written production of the Plaintiffs in this motion lacks objectivity and balance, and the credibility that can only come from objectivity and balance. It attempts to present its targets in the most discreditable light possible, and for this reason is not a reliable basis for the judgment of the reasonable person, fully informed, who has thought the matter through.

[603] I believe that the reasonable person would take note of these additional factors when assessing some of stern language that Hugessen J. and Russell J. have felt compelled to use in order to curb attitudes, practices and arguments that they have felt were not assisting progress towards trial.

[604] I raise these matters here with some reluctance because of the already over-charged atmosphere of these proceedings, but the nature of the allegations made in this motion requires the Court to say something about them, and Plaintiffs' counsel, Mr. Healey, has chosen to put his own conduct directly at issue. Finally, it also has to be stated clearly that the questionable practices, excesses and prolixities on full display in these materials necessitate an inordinate amount of time and effort on the part of other counsel and the Court to correct them, and seriously impede the progress of these proceedings. These matters will obviously have to be taken into account when costs are considered.

GENERAL CONCLUSIONS

[605] Mr. Shibley and Mr. Kindrake concurred in giving the Court one piece of advice that I believe was absolutely sound and which I have attempted to follow throughout my review of the submissions and the written materials: it is the record itself that matters most and which should carry the day.

[606] I particularly appreciated Mr. Shibley's assertions in this regard because of his candid acknowledgment that he had not been able to familiarize himself with the full record and was dependent upon the Plaintiffs' Memorandum of Argument for his presentation.

[607] I have followed that advice to the best of my ability and, from the perspective of the reasonable and right minded person, informed of the context, and viewing the matter realistically and practically, and having thought the matter through, I cannot find any ground for a reasonable apprehension of bias in this case, against either the Federal Court, or individual judges.

[608] In fact, I believe the reasonable person so informed would see this motion as groundless and unwarranted. It has impeded the progress towards trial by almost four months. It has diverted the Court from the consideration of other important motions. It has put the other parties and the Court to a great deal of time and effort to counter allegations that are often no more than assertions based upon innuendo, or revisionist accounts that run directly against the grain of the record reviewed in its entirety.

[609] That does not, however, end my concerns. I take very seriously Mr. Shibley's advice that the Plaintiffs' people are worried about the way this trial is evolving and I am also indebted to Ms. Eberts for reminding the Court of the "oft-documented sense of estrangement of First Nations from the legal system of Canada ... ."

[610] But the only answer I can give to these concerns at the present time is to point out that the pleadings govern the issues that are before the Court, and it is the parties themselves, on the advice of their lawyers, who draft those pleadings and who choose the time and the grounds for seeking amendments. It also has to be said that, as regards the Plaintiffs' worries that the Court has prevented them from marshalling all of their evidence on self-government, those concerns have not been brought to the attention of the Court, except to the extent that Ms. Twinn, in her December 14, 2004 letter, referred to specific witnesses for whom she is seeking a brief extension.

[611] In the present case the parties disagree in a fundamental way over the extent to which one aspect of the self-government concept (referred to in various ways) is encompassed by the present pleadings. It is important to have that disagreement resolved as quickly as possible because the scope of the pleadings governs the crucial issue of relevance when it comes to the calling of evidence. It also has to be remembered that, because this is a re-trial, there are Court orders that deal in some ways with how evidence from the first trial should be used.

[612] So far in these proceedings the trial judge has not decided such scope and relevancy issues. He has attempted to set up a process so that they can be examined and determined efficiently in a way that will least impede the progress of the trial. The trial judge has not made a decision about the Plaintiffs' case, self-government or otherwise, on the merits. When the time

comes to do that, if either side believes that the trial judge has made the wrong decision, they can take the matter to the Federal Court of Appeal.

[613] In exercising this trial management power, I take some comfort in the following words of the Ontario Court of Appeal in R. v. Felderhof 68 O.R. (3d) 481 (C.A.) at paragraph 40:

Whatever may have been the case in the past, it is no longer possible to view the trial judge as little more than a referee who must sit passively while counsel call the case in any fashion they please. Until relatively recently a long trial lasted for one week, possibly tow. Now, it is not unusual for trials to last for many months, if not years. Early in the trial or in the course of a trial, counsel may make decisions that unduly lengthen the trial or lead to a proceeding that is almost unmanageable. It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.

[614] Obviously, it is not pleasant for any judge to be told that one of the parties would like him to recuse himself. But there are numerous cases to remind me of where my duty lies in such a situation:

Although it is important that justice must be seen to be done, it is equally important that judicial officer's discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they will have their case tried by someone thought to be more likely to decide in their favour. Re J.R.L (1986), 161 C.L.R. 342 (H.C.) per Mason J. at para. 5.

[615] And even more recently, the Federal court of Appeal, in Samson Indian Band v. Canada, [1998] F.C.J. 688 (C.A.) at paragraph 11, has made it clear that what the Plaintiffs ask in this case is "foreign to the practice of this Court. We do not wish to encourage it in any way."

CONDUCT ISSUES

[616] There are conduct issues on the periphery of this motion and, at times, they have become part of the discussion because they were raised by the Plaintiffs in their materials and oral presentation.

[617] I agreed with Mr. Shibley at the hearing that this is not the place to address complaints made by opposing counsel and directed at Mr. Healey.

[618] However, I would like to correct a misleading impression that the Court created at the hearing in Edmonton when it attempted to discuss with Mr. Shibley in a neutral and colloquial way that, perhaps, written reasons which, on their face, appear to be firm and somewhat pointed, really need to be viewed in the context of the courtroom and the exchanges that take place between counsel.

[619] The word I used to describe those exchanges was "growling." This was not the right word. It created the wrong impression. No legal counsel in this case "growls" and the Court apologizes to all counsel for the inept language that it used. It also misled Mr. Shibley somewhat because I think he believed that counsel were constantly at each others throats and that all counsel were equally culpable. This is not the case.

[620] I have detected strong antipathy between counsel in this case, but bearing in mind the longevity of the proceedings and what is at stake on both sides, that is hardly surprising. Counsel do not have to like each other. It only becomes a problem when it translates into conduct that inhibits the efficient and fair administration of justice or threatens to breach professional decorum by becoming too personal. Where this has occurred, I have dealt with it and the record shows what has taken place. It is the remainder of the record that should be looked at if this matter becomes an issue, and not my clumsy attempts to engage Mr. Shibley at the hearing about "growling."

[621] Notwithstanding the Court's general feeling that this is not the appropriate time to address conduct issues head-on, the problem that the Court now faces is that, having reviewed the written materials submitted for this motion at considerable length, there is a significant issue that cannot be ignored. And this is now the time for plain speaking from the Court which, as I mentioned earlier, is absolutely essential, in my view, in this kind of motion to avoid bias (apprehended or otherwise) being raised merely as a matter of course. The jurisprudence is replete with warnings that allegations of bias (apprehended or otherwise) should not be made lightly and that they should only be made if supported by sufficient material. This is because such allegations strike at the heart of our judicial system and undermine public confidence in the impartiality and integrity of the judiciary. At a personal level, of course, there can be no greater

criticism of an individual judge than that she or he is in breach of the oath of office. As this motion has shown, such allegations are easy to make, but difficult to repel.

[622] Having reviewed the oral and written submissions of Plaintiffs' counsel against the record, I have been driven to certain conclusions that are deeply troubling but which, on the basis of what I now see before me, it is my duty to address in some way.

[623] Mr. Healey is the architect of this motion. His affidavit is the principal evidence offered against Hugessen J. and Russell J. and he is an author of the Memorandum of Argument that details the Plaintiffs' complaints about the Court and the judges it names. He is the one responsible for the lay affidavits that are formulaic and identical in nature and that do little more that repeat opinions he has provided. Those witnesses are not objective observers of the situation who can speak to material issues that have not been filtered through Mr. Healey and Ms. Twinn. Ms. Twinn says she has read the affidavit of Philip Healey and she agrees with its content. So, in the end, just about everything comes back to Mr. Healey.

[624] Mr. Healey has said clearly that, as regards Russell J., he has been treated at all times with appropriate courtesy in his appearances before the Court. He has also said that he does not believe that Russell J. has acted or spoken in any way that would suggest personal animus or bias towards him as a lawyer.

[625] The gravamen of his complaint is that he believes Russell J. is pre-disposed against the position of his clients on the self-government issue and he does not like the "tone" used by the Court in some of its decisions. Presumably, he has no complaint against the Court where its decisions show an acceptance of positions he has advanced, although, even here, he appears to suggest that acceptance only occurs when the jurisprudence is so "trite" that the Court cannot follow its natural inclinations and favour the Crown. But what he truly does not like is the "tone" evident in some of the reasons where his arguments have not been accepted by the Court.

[626] It is apparent to me from my review of the materials that Mr. Healey does not like being told that certain arguments he has brought to the Court are untenable. He does not like being told that he should not use his clients' breach of a Pre-Trial Order as an opportunity to discount the rights of other parties. He does not like being told that ad hominem attacks upon opposing counsel are not acceptable to the Court. He does not like being told that the Court does not appreciate his re-arguing issues before the Court that the Court feels are clearly res judicata.

[627] Of course, if he disagrees with decisions of the Court, he can advise his clients to appeal. But in this motion a collateral attack is made on several decisions that were not appealed, and the mechanism used is apprehended and, sometimes, actual bias.

[628] The written materials submitted for this motion reveal that Mr. Healey, rather than correct the matters of concern drawn to his attention by the Court, and rather than appeal certain

decisions, has chosen instead to question the impartiality of various judges of the Federal Court in a way that is, at times, personal.

[629] Mr. Healey's evidence and the Memorandum of Argument are imbued with language and methodologies that suggest that he seeks to impugn the integrity the trial judge in particular, and this factor cannot be eradicated by simply removing the allegation that Russell J. "engaged in private conversations with the Crown... ." The personal attack is deeply ingrained in the written materials and accounts for their excesses, their skewed interpretations, and their inaccuracies. There can be no mistaking the implications: "and he was putting pressure on us and he knew he was putting pressure on us, and he knew that you and opposite counsel were putting pressure on us." And there can be no doubt about who Mr. Healey thinks he is defending: "he has never been treated or had his arguments described in such a way."

[630] The message in the materials is loud and clear: Mr. Healey not only sees these proceedings as a personal battle with opposing counsel, he has also placed himself in personal confrontation with the Court.

[631] This confrontational approach, and the willingness to impugn in a personal way the integrity of named judges, has no place in a Court of Law. It has no place because it impedes the fair and efficient administration of justice and is a direct threat to the rights of all parties involved. And the Court has a duty to ensure that the rights of all parties do not become

trammelled in what one legal counsel has come to see as his own personal confrontation. What I see in these materials is clear evidence of a breakdown of legal process in this case. Mr. Healey in this motion is not fulfilling his duties to the Court from a position of detachment, and he is not conducting himself with the objectivity required by our adversary system.

[632] The Plaintiffs and the Crown have reached a point in these proceedings where an extremely important matter needs to be determined before the trial begins: to what extent is self-government an issue raised by the pleadings? The answer to this question will have a direct impact upon preparation for trial and the nature of the evidence that both sides decide to call.

[633] The Court is being hampered from resolving this impasse by the present motion. It is extremely unfair to all parties to have decisions on important issues delayed because Mr. Healey does not like the "tone" used by the Court from time to time, unless, of course, that tone is evidence of some kind of bias against the rights of the Plaintiffs. My review of the record has convinced me that, from the perspective of the reasonable person test, there are no grounds whatsoever for suggesting that the Court is not fully alive to the Plaintiffs' rights or that it has not taken active steps to protect them, sometimes in the face of inconsistent and extremely discouraging behaviour on the part of Mr. Healey. That "tone" has not jeopardized the respective rights of the parties and has, in fact, been part of the Court's attempts to ensure those rights are not undermined by personal confrontation.

[634] Mr. Healey also appears to believe that Russell J. can be made to change his position and to favour his arguments if Mr. Healey alleges an apprehension of bias in a notice of appeal. In other words, after first being manipulated by the Crown and the Interveners into excluding evidence relevant to the Plaintiffs' claim, Russell J. can then be made to come over to the Plaintiffs' side and be fair for a change.

[635] These are direct attacks upon the integrity of a judge and his attitude towards his oath of office. Needless to say, they are not particularly pleasant views to hear, but that is not my real concern.

[636] What they tell the Court at this stage, and this is my concern, is that conduct the Court has attempted to correct as a prelude to moving into a long trial is not going to be corrected, and that Mr. Healey remains unrepentant and is prepared to confront the Court in a personal way rather than follow the procedures and directions embodied in the Court's decisions.

[637] I do not believe that the rights of the parties can be fully protected if the proceedings are conducted at this level. There is, first of all, the enormous waste of resources to consider that can be somewhat compensated for in costs, but not entirely. There is also the unnecessary confrontation that results if legal counsel decides it is acceptable to engage in personal attacks against opposing counsel and to attack the integrity of the trial judge. And, of course, there is a terrible disservice to the parties when their rights are lost sight of, and the Court becomes

embroiled in deciding issues that have no real reason to be before the Court and finds itself sidetracked by personal confrontation.

[638] Mr. Shibley's impeccable handling of the argument at the hearing of this motion cannot be used to mask the real problems that beset these proceedings. As I said at the time, he was more help to the Court that he realized because, although he did not know the record and was dependent for his arguments and his view of the facts upon Ms. Twinn and Mr. Healey, he reminded the Court of just how cooperative and efficient opposing counsel can be, even when they appear as adversaries in a highly-charged and contentious motion.

[639] I said at the hearing that something constructive needs to come out of this motion for the sake of the parties involved. I cannot withdraw because, in my view, the law is very clear that it is my duty not to stand aside in these circumstances. At the same time, however, I do not see how these proceedings can continue if detachment and objectivity are abandoned and personal confrontation is allowed to hold sway.

[640] I will need advice from all counsel on this issue. I had hoped to avoid this conclusion, and that the problem would correct itself, but a careful review of the materials placed before me in this motion has convinced me that turning a blind eye to it now is not commensurate with protecting the rights of all parties and ensuring a fair and efficient trial on the merits.

ORDER

THIS COURT ORDERS THAT:

1. The Plaintiffs' motion is dismissed.

2. The parties are at liberty to address the Court on the issue of costs.

"James Russell"

JFC

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 NA FIRST NATION (formerly the Sarcee Indian Band) v. HER MAJESTY THE QUEEN

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: March 29, 2005 to April 1, 2005

REASONS FOR ORDER: RUSSELL J.

DATED: May 3, 2005

APPEARANCES:

Richard E. Shibley, Q.C FOR PLAINTIFFS

E. James Kindrake FOR DEFENDANT

Kathleen Kohlman

Mary Eberts FOR INTERVENER(S),

NATIVE WOMEN ASSOCIATION OF CANADA

Jon Faulds NATIVE COUNCIL OF CANADA (ALBERTA)

Derek A. Cranna

Karen E. Gawne

Paul Fitzgerald NATIVE COUNCIL OF CANADA

Ryan Flemming

Michael Donaldson NON-STATUS INDIAN

Robert O. Millard ASSOCIATION OF CANADA

SOLICITORS OF RECORD:

Shibley Righton LLP FOR PLAINTIFFS

Toronto, Ontario

John Sims FOR DEFENDANT

Deputy Attorney General of Canada

Eberts Syms Street & Corbett FOR INTERVENER,

NATIVE WOMEN ASSOCIATION OF CANADA

Field Atkinson Perraton LLP FOR INTERVENER,

NATIVE COUNCIL OF CANADA (ALBERTA)

Lang Michener FOR INTERVENER,

NATIVE COUNCIL OF CANADA

Burnet Duckworth & Palmer LLP FOR INTERVENER,

NON-STATUS INDIAN ASSOCIATION OF CANADA

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Sawridge Band v. Canada, 2005 FC 607

Citations2005 FC 607

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2005 FC 607