Wolf v. Canada, 2002 FCT 838

Date: 20020801

Docket: T-705-97

Neutral citation: 2002 FCT 838

BETWEEN:

                                                 CHIEF LIZA WOLF on her own behalf

                                                   and on behalf of the members of the

                                                        DENE TSAA FIRST NATION,

                                                               otherwise known as the

                                                   PROPHET RIVER INDIAN BAND

                                                                                                                                                        Plaintiffs

                                                                              - and -

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                                            REASONS FOR ORDER

                                  (Delivered from the Bench at a teleconference hearing held at

                                      Ottawa, Ontario, Vancouver, B.C. and Priddis, Alberta,

                                                          on Wednesday, July 31, 2002.)

HUGESSEN J.

[1]                 This is a motion brought by the defendant Crown seeking to examine a potential witness, Mr. Harry Dickie on commission, out of Court prior to trial, pursuant to the provisions of Rule 271 of the Federal Court Rules, 1998 which reads as follows :

[2]                 Mr. Dickie is a former Chief of the Fort Nelson Band and held that position in the 1970s at the time when the Fort Nelson Band and the plaintiff band, the Prophet River Band separated. They had previously amalgamated in the late 1950s. The action itself is brought by the Prophet River Band against the Crown and alleges various items of breach of trust by the Crown in the process, as I understand it, of both the amalgamation in 1957 and of the subsequent separation of the two bands in 1974.

[3]                 The primary factors to be considered in my view in considering a motion of this sort are firstly, the health and the availability of the proposed witness and secondly, the likelihood that his or her evidence will be important at the trial and that therefore, justice would be defeated if the trial were to take place and the witness was no longer available.

[4]                 Mr. Dickie is 89 years old. He has a history of heart troubles, has had apparently at least one heart by-pass and open-heart surgery. I do not, of course, say that the mere fact that a proposed witness or potential witness is of advanced years is by itself enough to justify making an order of this sort but clearly, I think, when one adds to that the fact that he has a history of serious medical condition even though he now appears to be in good health, this is sufficient to tip the balance in favour of making an order of the type sought. I would only add in this regard that with great respect, I am in disagreement with an obiter comment that was made in the Sawridge Band case (Sawridge Band v. Canada, [1994] 109 D.L.R. (4^th) 364 (F.C.T.D.) where Justice Muldoon indicated that he felt that medical evidence was necessary on a motion of this sort. In my view, it is enough that the Court should have evidence which it finds convincing that the proposed witness suffers from a medical condition. Here, I have hearsay evidence, and that is permissible on a motion, from Mr. Dickie himself that he suffers from the medical conditions that I have described and I would have thought that on a simple common sense basis, evidence of a person's age and condition of health is properly, and indeed often, best, obtained from the person, him or herself.

[5]                 There are other grounds raised, with respect, in the plaintiffs' argument as to why I should not order this commission. I can only say that in my view, I do not think that they are valid. It may be that Mr. Dickie has an interest, real or perceived, in the outcome of the case ; that is not and has never been grounds for refusing to hear a witness' testimony although it may, of course, go to the appreciation of that evidence which would be made by the trial judge. It may equally be that Mr. Dickie's memory is failing ; that too is not a ground for rejecting a priori the witness, qua witness. Again, it would be a matter for the judge to appreciate on the question of credibility. It may be, and indeed is, on the material I have before me, that Mr. Dickie has previously given an account of the matters as to which he is going to be asked to testify or at least some of them, in the course of an interview given, I believe, in the early 1990s. That interview was apparently videotaped and a partial transcript of it is available to the Crown and it may be that a full transcript and indeed, the videotape itself are available to other parties in this case. But that is not a reason why Mr. Dickie's evidence should not be heard by the judge who is going to hear the trial. It is clear that that videotape and that that transcript would not be admissible as evidence, although they may be admissible or may be made use of in cross-examination of Mr. Dickie to the extent that the ordinary rules of evidence permit that to be done. It may be, and there appears to be some dispute about this, that the circumstances in which Mr. Dickie was interviewed a few months ago by counsel for the Crown are or were improper. I make no finding on that but that suggestion has been implicit in some of the representations that were made before me today. That again is not a ground for refusing to hear a witness although it may go to the witness' credibility.

[6]                 Here, in my view, all the circumstances are in place such as to permit the making of an order of the type sought. Mr. Dickie was obviously present and involved in the events surrounding the separation of the Bands in 1974 and his evidence may be crucial.

[7]                 It has been suggested that the witness' evidence should be videotaped and I agree that that is desirable. It has been suggested that the witness should be heard at Fort Nelson where he presently lives. I agree with that as well. Fort Nelson is about a thousand kilometres away from both Calgary and Vancouver which are the two nearest centres where the Federal Court would normally sit. For a person of Mr. Dickie's age, that is a long trip and I think that it is entirely appropriate that he should be examined in the first instance at Fort Nelson. Let me add this. An order for the out of Court examination of a witness who is in Canada is always made, as we, lawyers, use to say, de bene esse, that is to say, for what it may be worth. If the witness is still alive and still available at the time the case comes on for trial, even if he cannot travel from Fort Nelson, the Court will, I have no doubt, accommodate that and make arrangements to go to Fort Nelson to take his evidence. But if, heaven forbid, Mr. Dickie should be no longer available or able to give evidence when this case finally comes on for trial, and that is likely to be several years hence, the ends of justice would be better served by having what we can of his evidence made available in such form as we can make it rather than depriving the Court of that evidence.

[8]                 There is one final point. The plaintiffs have argued that there are other witnesses who may be in the same position as Mr. Dickie. That may well be so. I know nothing of that because I do not have a motion before me relating to such other witnesses but if such a motion is brought, if there is evidence that they have a medical condition, that they have difficulty travelling and that they are of advanced age, I will be inclined to view a motion made to have those witnesses examined on commission and out of Court with the same sympathy with which I have heard this motion.

[9]                 An order will go which will be largely in the form sought. I will not include, however, the suggested paragraphs relating to the presence of a judge or prothonotary at the examination. As I indicated to counsel during argument, I see no purpose to be served by having a judicial officer present at the hearing. If there are objections to evidence, they should be noted on the record and the questions should be answered under reserve of the objection. If, and it seems to me to be unlikely, but if there should be any objections which are of the type which would be defeated by obliging the witness to answer the question under reserve of objection, (I have in mind of course an objection based on privilege, or something of that sort,) I will make myself available as quickly as I possibly can for a telephone conference and a resolution of that issue preferably while Mr. Dickie and counsel are still in Fort Nelson and available to comply with the ruling when it is made but if not, then, if necessary, they will have to go back at some later time.

[10]            Finally, the Crown has sought that I make an order for costs forthwith and in any event of the cause. I do not think that that is appropriate. While I am allowing the motion because I am not in agreement with any of the arguments that have been put forward by plaintiffs in opposing the motion, that does not mean that the motion should not have been opposed and the order for costs will simply be as is usually the case, costs in the cause.

                                                                                                                                                               Judge                       

Ottawa, Ontario

August 1^st, 2002

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:     T-705-97

STYLE OF CAUSE:   

                               CHIEF LIZA WOLF ET AL

                                       v.

                               HER MAJESTY THE QUEEN

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: July 31, 2002

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN

DATED: August 1st, 2002

APPEARANCES:

Mrs. Julie Rupert FOR THE PLAINTIFFS

Ms. Allisun Taylor Rana FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

RATH & COMPANY

PRIDDIS, ALBERTA         FOR PLAINTIFFS

MR. MORRIS ROSENBERGFOR THE DEFENDANT

DEPUTY ATTORNEY GENERAL OF CANADA