Sawridge Band v. Canada, 2004 FC 1721

Date: 20041209

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

Citation: 2004 FC 1721

Ottawa, Ontario, this 9^th day of December, 2004

Present:           The Honourable Justice James Russell                                

BETWEEN:

                                                             SAWRIDGE BAND

                                                                                                                                        Respondent

                                                                           and

HER MAJESTY THE QUEEN

                                                                                                                                            Applicant

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

Respondent

and

HER MAJESTY THE QUEEN

Applicant

and

NATIVE COUNCIL OF CANADA,

NATIVE COUNCIL OF CANADA (ALBERTA)

NON-STATUS INDIAN ASSOCIATION OF ALBERTA

NATIVE WOMEN'S ASSOCIATION OF CANADA

Interveners

                                            REASONS FOR ORDER AND ORDER

THE ADMISSION OF DOCUMENTS

The Motion

[1]                The Crown has brought a motion seeking an order that:

1.          the documents produced by the Crown in these actions may be admitted into evidence by the Crown at the trial, without formal proof of origin and authenticity, for the purpose of constituting some evidence of the truth of their contents, subject to any rulings of the trial judge regarding relevance, reliability and weight to be attributed to such documents or statements contained therein;

2.          without expanding the scope of the direction described in paragraph 1, any document so entered will be considered a true copy of its original and is evidence that it was duly signed, attested, delivered or published according to its purport;

3.          notwithstanding paragraph 2 herein, it will be open to any participant to:

(a)         lead evidence to contradict any document or any element of any document listed therein;

(b)         lead evidence to support or supplement any document or any element of any document listed therein; and

(c)         argue the weight and relevance which should be attributed to any document listed therein;

4.          nothing shall:

(a)         limit or restrict the right of any participant to make proof of any fact by the filing of any additional document or documents otherwise permitted by the rules of evidence or by order of the Court; or

(b)         limit or restrict the right of any participant to make proof of any fact or prove any documents in any manner that might otherwise be permitted if this Order had not been made;

5.          the Crown shall serve a list of the documents intended to be entered in this manner 30 days before the trial commences;

6.          the parties shall be entitled to prepare an agreed exhibit book, with either party free to add any documents from those produced in these actions; and the documents contained in the agreed exhibit book, subject to the acceptance of any evidence or argument to the contrary, shall be accepted as authentic, and it will not be necessary to call a witness to prove such documents at trial;

7.          the Plaintiffs shall pay the costs of this motion; and

8.          the Court award such further or other relief as it directs.

[2]                This is the third motion to come out of my directive of October 28, 2004. The original intent was to hear it in Edmonton on November 18 and 19, 2004, but the parties agreed that it could usefully be dealt with by the Court on the basis of written submissions alone.

Background

[3]                Both of the Crown and the Plaintiffs have been looking for the most just, expeditious and least expensive way of introducing exhibits at trial.

[4]                This is particularly important in the context of a trial that promises to be long and complex. The Crown alone has produced approximately 8,500 documents.

[5]                The Plaintiffs documents number approximately 10,000.

[6]                The Crown says it would be a waste of valuable trial time if the Crown is required to call evidence concerning the proof of documents that are, by their age, nature and provenance, inherently reliable and necessary.

[7]                The majority of the historical documents produced by the Crown were generated by Crown officers, employees and agents. In addition, there are documents that were generated by persons or organizations and submitted to the Government of Canada for consideration in conducting the business of government, or in enacting the law that is impugned by the Plaintiffs in these actions.

[8]                The vast majority of the Crown documents (approximately 5600) will be at least 20 years old by the anticipated conclusion of the trial. They were all obtained from either government records kept in the National Archives of Canada or from files retained by departments of the government of Canada.

[9]                The process that was followed by the Crown in compiling the documents was as follows:

(a)             researchers at LMRB identified relevant files at the National Archives, as well as relevant files held by DIAND and other government departments, related to the matters raised in the litigation;

(b)            those files were pulled and reviewed, and the documents which were considered potentially relevant to the actions were copied and marked for identification purposes;

(c)             the documents were provided to Crown counsel for their review for relevance and for claims of privilege;

(d)            documents that were identified as being relevant and for which no claims of privilege were identified were listed as producible in the Crown's Affidavits of Documents; and

(e)             the Affidavits, along with copies of the documents, were provided to the Plaintiffs.

[10]            Generally speaking, the Crown's documents consist of ancient documents (i.e. more than 20 years old), prints from photographic films (microfiche) of government records, and/or copies of entries or records made in the usual and ordinary course of the Crown's business.

[11]            The Crown intends to create a list of key documents that will be produced as exhibits at trial. This list will contain a substantially smaller number of documents than has been produced by the Crown to date.

[12]            The parties have been able to agree that all documents entered as exhibits at trial as part of an agreed exhibit book should be considered authentic and will not require formal proof by a witness.

[13]            Where they disagree is over whether documents should also be accepted as some kind of evidence of the truth of their contents.

[14]            The Plaintiffs say that they won't agree to the Crown's proposal in this regard until they have seen the documents. They also say it is unnecessary for the Crown to seek an order that the documents should constitute some evidence for the truth of their contents.

[15]            The Plaintiffs principal objection is that it is not appropriate for this Court to order at this time that documents, as yet unspecified and unidentified, should be admissible at trial for some truth of their contents.

[16]            The Crown says that the Plaintiffs have already seen the documents because only documents that have been produced during the course of the actions are included in the proposal.

[17]            The Crown also says that the ancient documents rule and the business records exception to the hearsay rule can be relied upon to accept the documents in this case as being inherently reliable. The kinds of documents at issue give rise to a circumstantial guarantee of trustworthiness as to their content.

[18]            As well as resisting the Crown's proposals regarding the truth as to content of the documents, the Plaintiffs have brought a cross-motion requesting that any order the Court may make in relation to the Crown's motion should also apply to all documents produced.

[19]            The Crown says such a cross-motion is unnecessary because the Crown is willing to agree that its proposal will apply to documents in the Plaintiffs' production that are identified for inclusion in an agreed exhibit book.

[20]            The Plaintiffs point out that, for the first trial of this matter, Mr. Justice Muldoon directed that authenticity and formal proof of documents was waived, and that the truth of the contents of the documents was left to be determined by the Court at trial or admitted by counsel. The Plaintiffs urge the Court to follow Mr. Justice Muldoon's approach and to decline to make a pre-trial order regarding the truth of documents and to leave the matter to be determined at trial or through agreement by counsel.

Analysis

[21]            I have looked closely at the two approaches suggested by the parties and at what Mr. Justice Muldoon did in relation to the first trial. In the final analysis, I do not think it will make a great deal of difference in the end which approach is adopted. The important thing to ensure is that the trial does not become snarled by witnesses called to give evidence concerning documentation that, by its nature, is the best evidence regarding the truth of its contents.

[22]            The Plaintiffs agree it is appropriate to waive authenticity and formal proof of documents. This is presumably because the nature of the documents in question makes them inherently reliable and gives them a circumstantial guarantee of trustworthiness. The same considerations suggest they should constitute prima facie evidence of the truth of their content, with issues of reliability, relevance and admissibility still open to argument at trial.

[23]            The Plaintiffs admit that it may be possible for them to agree to the truth of the contents of some of the documents once they have had a chance to review the specific documents that the Crown proposes. This suggests that it is the intention of the Plaintiffs to review each of the approximately 8,500 documents in question. They do not say, however, how and when they will do this, or why they need to see documents that have already been produced.

[24]            Nor is it clear to the Court what the Plaintiffs envisage happening at trial if Mr. Justice Muldoon's approach is followed in this matter. His Pre-Trial Conference Minutes and Reasons For The Consequential Order of July 16, 1993, at paragraph 4, reveal the following:

The parties and interveners agree that the Canada Evidence Act's provisions with respect to formal proof of origin and authenticity of documents is and shall be waived, meaning all documents (except the most grossly irrelevant) which are produced by the parties may be received (as for identification) and so exhibited, but not necessarily for truth of contents which will be determined by the Court or admitted by respective counsel, however, documents produced by or from the defendant may be admitted and exhibited for the most part as being, or being closely akin to business records, when they are Government records and, so, with Indian band records made in the ordinary course of band operations.

[25]            It seems to me that Mr. Justice Muldoon decided that "formal proof of origin and authenticity" could be waived, so that all documents (unless grossly irrelevant) could be received and exhibited, "but not necessarily for truth of contents ... ." However, he goes on to say that Crown documents "may be admitted and exhibited for the most part as being, or being closely akin to business records, when they are Government records," and the same should apply to "Indian band records made in the ordinary course of band operations."

[26]            I understand this as meaning that Crown documents and records would be admitted and treated as being akin to business records for evidentiary purposes.

[27]            I also see no reason why, as the Crown argues, the ancient documents rule and business records and public documents exceptions to the hearsay rule should not apply to those documents the Crown intends to produce as exhibits at trial. The Crown's proposal allows for any participant in the trial to lead contrary evidence to rebut the prima facie truth of the contents. And all parties will be able to argue relevance and weight.

[28]            In the end, it seems to me that what the Crown is proposing does not go that far beyond what Mr. Justice Muldoon ordered for the first trial and, in my view, it would certainly be a waste of time at the trial if the Plaintiffs and the Crown were required to call evidence concerning proof of documents that are, by their age, nature and provenance, inherently reliable and necessary.

[29]            However, the Plaintiffs continue to have reservations about the proposal, although it is difficult to surmise from their submissions what their real fears are, given the fact that the documentation in question has already been produced.

[30]            The Court would obviously like to see an agreement between the parties on how to handle a voluminous documentary record at trial where the nature of the evidence suggests there would be little to gain from calling witnesses on either side to speak to truth of contents issues.

[31]            Obviously, where the documents deal with early government policy and treaty making, there is no one who can speak to such matters, given that the makers and recipients died long ago.

[32]            And even more recent historical documents present problems because authors and recipients may no longer be employed by the Crown or the Plaintiffs, or may be elderly, or unreachable for some other reason.

[33]            From what has been placed before the Court so far, it would appear that the documents themselves will likely be the best evidence of what they contain because of the circumstantial guarantees they carry with them.

[34]            But the Court has not seen the documents in question and the Plaintiffs remain uneasy about the proposal. The Court feels at this point that the Plaintiffs should not, in effect, have an agreement thrust upon them when there appears to be an alternative, but the Plaintiffs should, in accordance with their own suggestions, do whatever it is they feel is necessary to satisfy themselves on truth of content issues and provide their position to the Crown.

[35]            My feeling is that, given the parties failure to reach a mutual agreement on the truth in content issue, the safest way to proceed for the time being is along the lines suggested in Mr. Justice Muldoon's order, but taking into account that Crown document will include ancient documents.

[36]            The parties should continue to work towards an agreement that will avoid as much viva voce evidence as possible when dealing with documentary evidence at trial. If it becomes apparent that the differences between the parties on this matter will result in witnesses having to be called to deal with truth of content issues for ancient documents and business records in a way that will be inefficient at trial, then the matter should be brought back to the trial judge for further consideration.

ORDER

THIS COURT ORDERS THAT:

1.          The documents produced in these actions may be admitted into evidence at the trial without formal proof of origin and authenticity, but not necessarily for truth of content, which will be admitted by respective counsel or determined by the Court. However, documents produced by the Defendant may be admitted and exhibited for the most part as being ancient documents and/or as being - or being closely akin - to business records, when they are government records, and likewise, from the Plaintiffs' perspective, with band records made in the ordinary course of band operations.

2.          The Court confirms the agreement of the parties that they may prepare an agreed exhibit book, with either party free to add any documents already produced in these actions, and the documents contained in the agreed exhibit book, subject to acceptance of any evidence in agreement to the contrary, and subject to paragraph 1 above, shall be accepted as authentic and without formal proof of origin.

      "James Russell"

     JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-66-86 A & T-66-86 B

STYLE OF CAUSE: SAWRIGDGE 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

PLACE OF HEARING:                                 EDMONTON, ALBERTA

DATE OF HEARING:                                   NOVEMBER 18 AND 19, 2004

REASONS FOR [ORDER or JUDGMENT] : RUSSELL, J.

DATED:                     December 9, 2004

APPEARANCES:

Catherine Twinn                                          FOR PLAINTIFF

Twinn Barristers and Solicitors                                      

Slave Lake, Alberta

Philp P. Healey

Aird & Berlis LLP                                          FOR PLAINTIFF

Kevin Kimmis / James Kindrake                              FOR DEFENDANT

Department of Justice                                              

Edmonton                                          

Mary Eberts                                                                FOR NATIVE WOMENS

Eberts Symes Street Pinto & Jull                                         ASSOCIATION OF CANADA

Toronto, Ontario                                                          AND NATIVE COUNCIL OF

             CANADA

P. Jon Faulds / Derek Cranna                                                   FOR NATIVE COUNCIL OF

Field LLP                                                                       CANADA (ALBERTA)

Edmonton, Alberta                                                                            

Michael J. Donaldson                                                                FOR NON STATUS INDIAN

Burnet, Duckworth & Paulmer LLP

Calgary, Alberta