Docket: T-195-92
Citation:
2015 FC 920
Ottawa, Ontario, July 28, 2015
PRESENT: The
Honourable Mr. Justice Mandamin
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BETWEEN:
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ALDERVILLE INDIAN
BAND NOW KNOWN
AS MISSISSAUGAS OF ALDERVILLE
FIRST NATION, AND GIMAA JIM BOB
MARSDEN, SUING ON HIS OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE MISSISSAUGAS OF ALDERVILLE
FIRST NATION
BEAUSOLEIL INDIAN BAND NOW KNOWN
AS BEAUSOLEIL FIRST NATION, AND
GIMAA RODNEY MONAGUE, SUING ON
HIS OWN BEHALF AND ON BEHALF OF
THE MEMBERS OF THE BEAUSOLEIL
FIRST NATION
CHIPPEWAS OF GEORGINA ISLAND
INDIAN BAND NOW KNOWN AS
CHIPPEWAS OF GEORGINA ISLAND FIRST
NATION, AND GIMAANINIIKWE DONNA
BIG CANOE, SUING ON HER OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE CHIPPEWAS OF GEORGINA ISLAND
FIRST NATION
CHIPPEWAS OF RAMA INDIAN BAND NOW
KNOWN AS MNJIKANING FIRST NATION,
AND GIMAANINIIKWE SHARON STINSON-
HENRY, SUING ON HER OWN BEHALF
AND ON BEHALF OF THE MEMBERS OF
THE MNJIKANING FIRST NATION
CURVE LAKE INDIAN BAND NOW KNOWN
AS CURVE LAKE FIRST NATION, AND
GIMAA KEITH KNOTT, SUING ON HIS
OWN BEHALF AND ON BEHALF OF THE
MEMBERS OF THE CURVE LAKE FIRST
NATION
HIAWATHA INDIAN BAND NOW KNOWN
AS HIAWATHA FIRST NATION, AND
GIMAANINIIKWE LAURIE CARR, SUING
ON HER OWN BEHALF AND ON BEHALF
OF THE MEMBERS OF THE HIAWATHA
FIRST NATION
MISSISSAUGAS OF SCUGOG INDIAN BAND
NOW KNOWN AS MISSISSAUGAS OF
SCUGOG ISLAND FIRST NATION, AND
GIMAANINIIKWE TRACY GAUTHIER,
SUING ON HER OWN BEHALF AND ON
BEHALF OF THE MEMBERS OF THE
MISSISSAUGAS OF SCUGOG ISLAND
FIRST NATION
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN
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Defendant
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and
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HER MAJESTY THE
QUEEN IN
RIGHT OF
ONTARIO
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Third Party
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ORDER AND REASONS
I.
Introduction
[1]
The Plaintiff First Nations apply for leave to
file the expert report of Dr. Darrel Manitowabi and call him as an expert
witness. Dr. Manitowabi's report is titled "An
Anishinaabeg Oral Narrative of the Williams Treaties Based on 174 Interviews
with Members of the Williams Treaties First Nations collected by the late Dr. Krystyna
Sieciechowicz in the Years 2001-2002, and Related Materials" [Manitowabi
Report]. The Plaintiffs submit this evidence provides the Aboriginal
perspective on events surrounding the making of the 1923 Williams Treaties, and
impact of those Treaties on the Plaintiff First Nations.
[2]
The Defendant Canada filed a cross‑motion
for an order denying the Plaintiffs’ request for leave to file the Manitowabi
Report or, in the alternative, granting an adjournment to mitigate prejudice
arising from the late filing of the Manitowabi Report, as well as other
measures.
[3]
The Third Party Ontario also filed a cross‑motion.
They seek an order dismissing the Plaintiffs' motion and, in the alternative,
an order for mitigative measures.
[4]
Having regard for the importance of considering
the Aboriginal perspective in this trial, the circumstances which gave rise to
the late introduction of the Manitowabi Report, and the mitigative measures
available to alleviate any prejudice caused, I have decided the Plaintiffs may
file the Manitowabi Report and call Dr. Manitowabi as an expert witness.
[5]
I have also decided that further orders and
directions are necessary to satisfy the adequacy of the trial record, mitigate
prejudice arising from the late filing, and ensure fairness for all Parties in
this proceeding.
[6]
My reasons are set out in the following
discussion and analysis.
II.
Background
[7]
In 1992, the Plaintiff First Nations [Plaintiffs
or First Nations] filed their claim that the Crown breached its fiduciary duty
in the making of the 1923 Williams Treaties. Negotiation between the First
Nations and Canada and Ontario ended in July 2000, when Canada informed the First
Nations that it would not negotiate hunting, fishing and trapping rights as
treaty rights. Canada suspended negotiations and Ontario followed suit.
[8]
In 2000, the Plaintiffs asked an anthropologist,
Dr. Krystyna Sieciechowicz, to interview First Nations members to assist
in identifying potential witnesses. From 2001 to 2002, Dr. Sieciechowicz
interviewed 174 members of the First Nations. In 2005, Plaintiffs' legal
counsel requested Dr. Sieciechowicz prepare an expert report on the First
Nations' oral history of the Williams Treaties based on the interviews she had
conducted. Dr. Sieciechowicz began drafting the report in 2006 but was not
able to complete her report prior to the close of pleadings in 2007. On March
26, 2007, the Plaintiffs advised the Defendant and Third Party that they would
not make use of an expert report from Dr. Sieciechowicz.
[9]
The Plaintiffs explored taking de bene esse
evidence prior to trial. This proposal was not realized but, according to
Plaintiffs' counsel, evolved into community testimony by First Nations members
in Phase 1 of this trial.
[10]
The trial was scheduled to commence May 9, 2009
but was adjourned to allow for further negotiations, which were also
unsuccessful.
[11]
Dr. Sieciechowicz had produced an
incomplete draft report profiling her methodology and summary conclusions and
had left voluminous materials including semi-structured questionnaires, 174
completed interviews, notes and other materials [Draft Report]. Dr. Sieciechowicz
died on March 22, 2012.
[12]
The trial subsequently commenced May 2012,
beginning with testimony by community members from each of the seven First
Nations.
[13]
On March 27, 2013, the Plaintiffs' expert
witness, Dr. Janet Armstrong, examined the original engrossed Williams
Treaties at Library and Archives Canada, and detected possible anomalies in the
text of the original documents. The subsequent forensic reports of the
engrossed Williams Treaties confirmed the anomalies which raised questions
about the events and documentation during the final negotiation and signing of
the Williams Treaties in 1923. In her testimony on January 28, 2015 concerning
the significance of the anomalies, Dr. Armstrong suggested that one should
have regard for the First Nations' oral history of the events.
[14]
Chief Greg Cowie of the Hiawatha First Nation
deposed that Plaintiffs’ legal counsel informed him Professor Sieciechowicz had
kept the interview and research materials in her possession until she passed
away. Her estate then transferred the materials to the University of Toronto
archives; however, the estate trustee retained control over these documents and
was initially unwilling to grant access to the First Nations.
[15]
In 2013, Plaintiffs' legal counsel retained Dr. Darrel
Manitowabi to prepare an expert report based on Dr. Sieciechowicz's Draft
Report. Dr. Manitowabi, an anthropologist and a professor at Laurentian
University, has studied the south-central Anishinaabeg and is familiar with Dr. Sieciechowicz's
work as she was his Ph.D. supervisor in the Department of Anthropology at the
University of Toronto in 2001 – 2007.
[16]
Dr. Manitowabi was able to gain approval from
the estate trustee and examined Dr. Sieciechowicz’s research in July 2013
and September 2014. He arranged the scanning of the Draft Report in the fall of
2014.
[17]
Dr. Manitowabi completed his expert report
based on Dr. Sieciechowicz’s Draft Report on March 1, 2015. In his report,
Dr. Manitowabi states that sociocultural anthropology is qualitative and
many studies follows a "grounded theory" approach. He explains that
this research method is increasingly popular in a variety of disciplines
including social science and health research:
In grounded theory oral narrative research,
the objective is look for patterns of meaning and consistent themes in oral
narratives. While an anthropologist is collecting oral narratives, a pattern
emerges and saturation is reached when the themes and oral narratives of in
[sic] interviews becomes repetitive. The focus of grounded theory is the main
themes found in consistent responses. There are certainly instances where an
interview may contradict another, but these are typically only taken into
consideration if there is a pattern of contradictions, and the contradictions
become part of the thematic analysis. ... If a patterned contradiction exists,
it becomes a meaningful point of analysis. Once patterns are observed
consistently, saturation is reached, and the anthropologist arrives at an
understanding of a people's oral narrative of the issue at hand.
Manitowabi Report, p. 12
[18]
Dr. Manitowabi says that grounded theory
served as the basis for Dr. Sieciechowicz's theoretical framework and
concludes that his report encompasses a unique aspect being the integration of
two expert opinions on a data set which examines the impact of the Williams
Treaties on the First Nations.
[19]
Dr. Manitowabi identified three main themes
that arose from the collective oral narratives on the Williams Treaties, which Dr. Manitowabi
termed the First Nations' "grand narrative of the Williams Treaties".
These three main themes are:
i.
the way of life at the time of the Treaties,
ii.
the Treaties signings, and
iii.
the impact of the Treaties.
[20]
In response to the cross-motions, the Plaintiffs
filed the affidavit of Dr. Edward J. Hedican, a professor of
anthropology at the University of Guelph. Dr. Hedican is familiar with the
grounded theory research approach in anthropological and Aboriginal studies. He
says Dr. Manitowabi's approach is soundly based on the generally accepted
guidelines for research employing the grounded theory paradigm. Dr. Hedican
also observed that the themes in the report seem to reasonably focus on the
First Nations’ understanding of the Williams Treaties.
[21]
On January 23, 2015, the Chiefs of the Plaintiff
First Nations approved submitting the Manitowabi Report to the Court. On March
27, 2015, the Plaintiffs filed a motion seeking to vary Prothonotary Milczynski's
July 7, 2009 Order which limited the Plaintiffs to eight expert witnesses. In
this motion, they seek leave to call an additional expert witness, Dr. Manitowabi,
and to file his expert report.
III.
Legislation
[22]
The Federal Court Rules, SOR/98-106, as
amended [the Rules] provide:
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52.4 (1) A party intending to call more than five expert witnesses
in a proceeding shall seek leave of the Court in accordance with section 7 of
the Canada Evidence Act.
…
53. (1) In making an order under these Rules, the Court may impose
such conditions and give such directions as it considers just.
…
58. (1) A party may by motion challenge any step taken by another
party for non-compliance with these Rules.
…
59. Subject to rule 57, where, on a motion brought under rule 58,
the Court finds that a party has not complied with these Rules, the Court
may, by order,
(a) dismiss the motion, where the motion was not brought within a
sufficient time after the moving party became aware of the irregularity to
avoid prejudice to the respondent in the motion;
(b) grant any amendments required to address the irregularity; or
(c) set aside the proceeding, in whole or in part.
…
227. On motion, where the Court is satisfied that an affidavit of
documents is inaccurate or deficient, the Court may inspect any document that
may be relevant and may order that
(a) the deponent of the affidavit be cross-examined;
(b) an accurate or complete affidavit be served and filed;
(c) all or part of the pleadings of the party on behalf of whom
the affidavit was made be struck out; or
(d) that the party on behalf of whom the affidavit was made pay
costs.
…
279. Unless the Court orders otherwise, no expert witness’s
evidence is admissible at the trial of an action in respect of any issue
unless
(a) the issue has been defined by the pleadings or in an order
made under rule 265;
(b) an affidavit or statement of the expert witness prepared in
accordance with rule 52.2 has been served in accordance with subsection
258(1), rule 262 or an order made under rule 265; and
(c) the expert witness is available at the trial for
cross-examination.
…
399. (2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent
to the making of the order; or
(b) where the order was obtained by fraud.
(3) Unless the Court orders otherwise, the setting aside or
variance of an order under subsection (1) or (2) does not affect the validity
or character of anything done or not done before the order was set aside or
varied.
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52.4 (1) La partie qui compte produire plus de cinq témoins
experts dans une instance en demande l’autorisation à la Cour conformément à
l’article 7 de la Loi sur la preuve au Canada.
…
53. (1) La Cour peut assortir toute ordonnance qu’elle rend en
vertu des présentes règles des conditions et des directives qu’elle juge
équitables.
…
58. (1) Une partie peut, par requête, contester toute mesure prise
par une autre partie en invoquant l’inobservation d’une disposition des
présentes règles.
…
59. Sous réserve de la règle 57, si la Cour, sur requête présentée
en vertu de la règle 58, conclut à l’inobservation des présentes règles par
une partie, elle peut, par ordonnance :
a) rejeter la requête dans le cas où le requérant ne l’a pas
présentée dans un délai suffisant — après avoir pris connaissance de
l’irrégularité — pour éviter tout préjudice à l’intimé;
b) autoriser les modifications nécessaires pour corriger
l’irrégularité;
c) annuler l’instance en tout ou en partie.
…
227. La Cour peut, sur requête, si elle est convaincue qu’un
affidavit de documents est inexact ou insuffisant, examiner tout document
susceptible d’être pertinent et ordonner :
a) que l’auteur de l’affidavit soit contre-interrogé;
b) qu’un affidavit exact ou complet soit signifié et déposé;
c) que les actes de procédure de la partie pour le compte de
laquelle l’affidavit a été établi soient radiés en totalité ou en partie;
d) que la partie pour le compte de laquelle l’affidavit a été
établi paie les dépens.
…
279. Sauf ordonnance contraire de la Cour, le témoignage d’un
témoin expert n’est admissible en preuve, à l’instruction d’une action, à
l’égard d’une question en litige que si les conditions suivantes sont réunies
:
a) cette question a été définie dans les actes de procédure ou
dans une ordonnance rendue en vertu de la règle 265;
b) un affidavit ou une déclaration du témoin expert a été établi
conformément à la règle 52.2 et signifié conformément au paragraphe 258(1) ou
à la règle 262 ou à une ordonnance rendue en application de la règle 265;
c) le témoin expert est disponible à l’instruction pour être
contre-interrogé.
…
399. (2) La Cour peut, sur requête, annuler ou modifier une
ordonnance dans l’un ou l’autre des cas suivants :
a) des faits nouveaux sont survenus ou ont été découverts après
que l’ordonnance a été rendue;
b) l’ordonnance a été obtenue par fraude.
(3) Sauf ordonnance contraire de la Cour, l’annulation ou la
modification d’une ordonnance en vertu des paragraphes (1) ou (2) ne porte
pas atteinte à la validité ou à la nature des actes ou omissions antérieurs à
cette annulation ou modification
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IV.
Previous Orders and Directions
[23]
The motion and cross-motions address questions
about variation of prior orders and directions, which are:
i.
the July 10, 2009 Prothonotary Milczynski Order
that the Plaintiffs may examine eight expert witnesses and may examine up to a
further three additional expert witnesses in order to respond to Canada’s and/or
Ontario’s experts’ evidence;
ii.
the July 17, 2013 Order where I ruled that the
video recording of the community viewings fell short of being evidence at trial
and ordered the video recordings be marked as exhibits for identification; and
iii.
the February 20, 2015 Direction where I directed
that the trial be organized into three phases, a liability phase, a remedies
phase and a third party action.
V.
Parties' Submissions
A.
Plaintiff First Nations
[24]
The Plaintiffs submit that their collective narrative
on the Williams Treaties is set out in the Manitowabi Report. They say the Manitowabi
Report would provide the Court with the Aboriginal perspective on the Williams
Treaties.
[25]
The Plaintiffs acknowledge the interview
statements to be hearsay as there are no living witnesses to the making of the
Williams Treaties. Further, the Chiefs of the First Nations do not want their elders
subjected to the trial witness process, which can be very difficult and tiring.
[26]
The Plaintiffs submit that Dr. Manitowabi's
report would allow them to relate their collective oral history about community
conditions in 1923, the making of the Williams Treaties, and the impact of the
Williams Treaties had in the years following. The Plaintiffs emphasize the
difficulties in obtaining an expert report on the collective oral history prior
to the close of pleadings, explaining that Dr. Sieciechowicz's work had
not been completed when pleadings closed in 2007 and that they had focused on
negotiations between 2007 and 2011.
[27]
The Plaintiffs say that Dr. Armstrong's
discovery of anomalies in the engrossed Williams Treaties raises serious
questions about what occurred in 1923, specifically what were the First Nations
expectations regarding the Treaties and what was the state of the documents at
the time the Treaties were signed. Since learning of these issues, the
Plaintiffs say they have moved as quickly as possible to obtain and submit the
Manitowabi Report.
[28]
The Plaintiffs submit that circumstances
surrounding the Manitowabi Report satisfies the requirement under Rule
399(2)(a) for variation given the discovery subsequent to the making of the Prothonotary
Milczynski's July 27, 2009 Order. The Plaintiffs ask the Court to vary the
Order and allow them to call Dr. Manitowabi as an additional expert
witness.
[29]
The Plaintiffs further submit appropriate
mitigative measures are available to cure any prejudice incurred by Canada and
Ontario through trial management measures, such as conferencing and panelling
and their offer to schedule Dr. Manitowabi's evidence later in the trial
to allow Canada and Ontario sufficient time to respond to the Manitowabi Report.
B.
Defendant Canada
[30]
Canada submits that presenting Dr. Manitowabi's
report along with Dr. Sieciechowicz's Draft Report this late in the trial
essentially amounts to “trial by ambush”. The
Defendant Canada notes that the Plaintiffs have almost completed calling all
their liability evidence. Canada states its defence to date had been
constructed on the basis of the existing record, which did not contain the
Manitowabi Report or the oral history interviews it relies on.
[31]
Canada submits it is prejudiced by the late
introduction of the Manitowabi Report and that the prejudice is compounded by
the Plaintiffs' failure to previously disclose Dr. Sieciechowicz's Draft
Report under the Court's rules governing production and discovery.
[32]
Canada says that the Plaintiffs’ motion calls
into question issues of fundamental fairness, the integrity of the trial
process and the administration of justice, and that the Court should not
sanction the failure to disclose material documents. However, if the Court
allows the report, the Court must fully and completely address the prejudice.
[33]
Canada says irremediable prejudice is caused by
the lost opportunity to question the Plaintiffs' ethnohistorians about the
contents of Dr. Manitowabi's report during cross‑examination and
that prejudice outweighs the probative value of the Manitowabi Report. Although
Canada requests the opportunity to recall these three witnesses in its
cross-motion, Canada submits that the inability to retrofit new issues into
already completed cross-examinations means some of the prejudice cannot be
cured.
[34]
Canada notes that the Plaintiffs have had access
to Dr. Sieciechowicz's Draft Report since 2013 and Dr. Manitowabi
himself has had more than a year to review and consider the materials to
develop his opinion. Canada accepts that Dr. Manitowabi is a trained
anthropologist who is qualified to testify on the opinions expressed in his
report. In making this concession however, Canada does not waive its right to
challenge Dr. Manitowabi's qualifications, and cross-examine Dr. Manitowabi
should he be called as an expert witness in trial.
[35]
For purposes of the Plaintiffs' motion and
Canada's cross‑motion, Canada also accepts that the subject matter of Dr. Manitowabi's
report is relevant. However, Canada does not waive any right to challenge at
trial the admissibility of evidence on matters extraneous to the making of the
Williams Treaties or outside the scope of the pleadings in the action.
[36]
Canada accepts Dr. Sieciechowicz's
statements, as to her own observations, are admissible for purposes of the
leave and cross-motions only, but does not waive its right to challenge the
admissibility of such statements should leave be granted and Dr. Manitowabi
called to testify. Canada acknowledges that Dr. Sieciechowicz is no longer
living and that her statements regarding her own observations may meet the
hearsay test of necessity. It also reserves the right to challenge the
admissibility of the interviewees’ statements should leave be granted and Dr. Manitowabi
testify.
[37]
Canada says it requires an expert critical
analysis of Dr. Manitowabi and Dr. Sieciechowicz’s methodologies in
order to assess the reliability of the statements underlying their respective
reports.
[38]
Although Canada initially opposed granting leave
to file Dr. Manitowabi's report, Canada ultimately takes the position that
the Court may grant leave for filing Dr. Manitowabi's report but with
mitigative orders and directions:
a.
affording the Defendant a 15 month adjournment
to obtain an expert anthropological and ethnohistorical report responding to
the Manitowabi Report;
b.
confirming the Defendant has preserved the right
to challenge the qualifications of Dr. Manitowabi and its without
prejudice concessions made for the purposes of the Plaintiff's motion and
Defendant 's cross‑motion;
c.
providing for future adjournments to accommodate
any reasonably required additional Defendant reports including such future
adjournment necessary for receipt of the anticipated Plaintiffs' reply report;
d.
granting leave for the Defendant to renew its cross‑examination
of the Plaintiffs' ethnohistorical experts who already testified as the
Defendant may elect;
e.
granting leave for the Defendant to cross‑examine
such First Nations interviewees identified in the Sieciechowicz/Manitowabi
materials as the Defendant may elect;
f.
providing directions through trial management
necessary adjustments to the scope and length of the trial;
g.
providing directions concerning use by experts
of past recordings of oral accounts by members of the First Nations concerning
the 1923 Williams Treaties;
h.
providing directions for use at trial of oral
history accounts or other historical records that form part of the evidentiary
record in R v Howard; and
i.
directing the Plaintiffs to amend their
affidavit of documents to include the additional documents as required by the
Federal Court Rules governing production in civil proceedings.
[39]
In its cross-motion, Canada also submits that
there are other audio recordings, some of which appear to be duplicative
copies, made by First Nations members which are at issue in this cross‑motion:
i.
four oral history audio recordings that were
located Indian Commission of Ontario (ICO) storage in 2009 (three of which are
also in the Christian Island recording listed below);
ii.
other oral history audio recordings, including:
1.
Christian Island audio recording;
2.
John Loucks' audio recording
3.
Curve Lake audio recording
4.
other oral history audio recordings of the
elders of Scugog and Christian Island recorded by Ian Johnson
[40]
Canada submits these additional oral history
recordings reference the making and impacts of the 1923 Williams Treaties and
are therefore relevant. Canada submits there is no claim of privilege in
respect of those recordings.
[41]
Also in its cross-motion, Canada also requests
the Ralph Loucks' testimony in the R v Howard trial (Reasons for
Judgement, January 10, 1986) be admitted as an exhibit. Canada acknowledges
this Court has already ruled the evidence in Howard is subject to
restricted use but specifically requests that the transcript of Mr. Loucks’ testimony
be included since it is part of an archive of statements made by First Nations
members about the Williams Treaties. Canada submits there is no basis to treat
it differently from other archival sources.
[42]
Finally, Canada submits costs of the Plaintiffs'
motion for leave and its cross-motion should be granted to the Defendant on a
substantial indemnity basis.
C.
Ontario Submissions
[43]
Ontario submits admitting the Manitowabi Report
would constitute a palatable error for many of the same reasons as Canada emphasizing
that:
a)
the Manitowabi Report and information it is
based upon are inadmissible hearsay;
b)
the Plaintiffs advised they would not file a
report by Dr. Sieciechowicz and are now filing her Draft Report when she
is unavailable for cross-examination;
c)
the material on which the Manitowabi Report is
based existed since 2000-2002 but was not produced until March 2, 2015
notwithstanding disclosure requirements for affidavits of documents, negative
answers to written interrogatories in the discovery process, and assurances by
Plaintiffs' legal counsel that any relevant material that existed would be
disclosed.
[44]
Ontario asserts it suffered significant
prejudice by the late disclosure of the Manitowabi Report and the interviews.
It says it was deprived of the opportunity to use the information to cross-examine
the Plaintiffs’ community witnesses who testified in Phase 1 of the trial, and
the Plaintiff's experts who testified in Phase 2 of the trial. In addition
Ontario was deprived of the opportunity to engage expert assistance on Aboriginal
oral history evidence when preparing its case prior to trial which impacted its
litigation strategy.
[45]
Ontario also submits that portions of the Manitowabi
Report address issues that are not defined by the pleadings.
[46]
Ontario also submits introducing the Manitowabi
Report will delay the trial, require significant expenditures by the parties,
necessitate recalling witnesses, and could result in the Plaintiffs splitting
their case.
[47]
Ontario further submits that calling Dr. Manitowabi
would violate Prothonotary Milczynski's July 10, 2009 Order which limits the
Plaintiffs to calling eight expert witnesses.
[48]
Ontario seeks an order dismissing the Plaintiff's
motion. Ontario submits that, although there should be a flexible approach to
the introduction of evidence in Aboriginal trials, the requirement of a fair
trial and the rules of evidence continue to apply.
[49]
If the Manitowabi Report is introduced into
evidence, Ontario submits that mitigative steps should be taken to lessen the
prejudice. Ontario proposes the following:
a)
Dr. Sieciechowicz draft report should be
redacted from Dr. Manitowabi's report because it is outside the scope of
the trial, unsigned, incomplete, fails to meet Rule 279 and does not comply
with the Code of Conduct for expert witnesses;
b)
adjourn the trial for at least one year to give
Ontario time to locate and retain an appropriate expert to review the Manitowabi
Report and prepare a response;
c)
Dr. Manitowabi should not be permitted to
testify after Ontario's experts as this would allow the Plaintiffs to split
their case and would be contrary to fair hearing rights;
d)
Ontario should have the opportunity to recall
the Plaintiffs' community witnesses and ethnohistorians who have given evidence
on the Aboriginal perspective;
e)
the ICO and other oral history recordings should
also be admitted into evidence, so all material that is relevant to either
understanding or challenging the Manitowabi Report and its underlying materials
must be available to the parties;
f)
Ralph Loucks' evidence before the Ontario Provincial
Court (Criminal Division) on October 1, 1985 in the Howard trial should
be admitted;
g)
the Ian Johnson's reports which Dr. Sieciechowicz
reviewed during the course of her research should also be produced;
h)
the Plaintiffs should file an accurate and
complete supplementary affidavit of documents listing all relevant documents
including all recordings or transcriptions of statements made by the members of
the Plaintiff First Nations in relation to the making of the Williams Treaties.
[50]
Finally, Ontario seeks an award of costs for additional
trial preparation and attendance as a result of the filing of the Manitowabi
Report.
[51]
During the course of the motion and
cross-motions, I asked the parties to provide submissions on whether the video
recordings of the First Nations community witnesses' statements during the
viewings ought to be considered as part of completing the First Nations oral
history record given the witnesses not only spoke about their communities but also
of their oral history. The First Nations were in agreement while Canada was
opposed but, in the alternative, submitted only the statements made by the
community witnesses be entered as evidence. Ontario did not oppose inclusion.
VI.
Analysis
[52]
I am satisfied that the Manitowabi Report should
be admitted notwithstanding the prejudice that arises from its late filing in
this trial involving the First Nations’ claim of breach of fiduciary duty and
failure to uphold the honour of the Crown in the making of the Williams
Treaties.
[53]
The First Nations say that the Manitowabi Report
will provide the First Nations' collective Aboriginal perspective on the making
of the Williams Treaties and that it is essential for the Court to hear the
voice of the First Nations. The First Nations say the Manitowabi Report would
provide the Court with oral history evidence on the conditions in the communities
at the time of the Treaties, the making of the Treaties, and the impact of the
Treaties in the years after.
[54]
The Manitowabi Report is a new way of
introducing oral history evidence in Court. It applies a grounded theory
research approach to discern themes that emerge from interviews. This means
that evidence will be presented in Court by an expert witness, an
anthropologist, rather than by either an individual Aboriginal witness or by a
number of Aboriginal witnesses.
[55]
A review of previous court cases involving of
oral history evidence reveals a number of ways in which Courts receive oral
history evidence:
a.
in Delgamuukw, above, a total of 61 lay
witnesses gave evidence, many using translators of the Gitksan and Wet'su
wet'en languages, while another 15 gave evidence on commission;
b.
in Badger, above, an elder, Dan Maclean,
testified about the Indians’ understanding of Treaty No. 8; his capacity to do
so was not challenged and his testimony was corroborated by a text documenting oral
history recounted by other Treaty No. 8 elders;
c.
in Mitchell, above, Grand Chief Michael Mitchell
testified about the Mohawks' oral history as it related to trade. His capacity
to do so was because of his training form an early age in the history of his
community.
[56]
In his report, Dr. Manitowabi describes two
types of Anishinaabeg oral stories: ‘aadsookan’, mythic stories of the past and
‘dbaajmowin’, stories of past events. The oral narratives of Dr. Sieciechowicz’s
interviewees are ‘dbaajmowin’, historic stories told to the interviewees mixed
with some personal stories from the interviewees themselves.
[57]
Since I consider the First Nations oral
narratives recorded by Dr. Sieciechowicz and subsequently analyzed by Dr. Manitowabi
to be handed down stories of past events, they constitute both oral history evidence
and hearsay evidence on the Williams Treaties.
[58]
In R v Khan [1990] 2 S.C.R. 531, the
Supreme Court of Canada set out a principled approach for admitting hearsay
evidence. The first question is whether the hearsay statement is “reasonably
necessary”. The second question is whether the evidence is reliable. The
Supreme Court reviewed and clarified the law of hearsay in R v Khelawon,
[2006] 2 S.C.R. 787. It acknowledged that hearsay evidence is presumptively
inadmissible because it is an out of court statement adduced to prove the truth
of its contents without affording an opportunity to cross-examine the declarant
to test the reliability of the statement, but provided that hearsay evidence is
presumptively admissible if it meets the indicia of necessity and reliability
required by the principled approach: see also R v Mapara, 2005 SCC 23
at para. 15.
[59]
Dr. Manitowabi is an anthropologist who can
be expected to provide expert evidence in his field of expertise. He is being
called to provide the Court with expert evidence on grounded theory methodology
and thematic assessment as applied to the oral history of the First Nations
about the Williams Treaties. The data upon which his expert report is based is
the 174 interviews of First Nations members conducted by Dr. Siechiechowicz
on their collective oral history about the Williams Treaties. The interviews
may be hearsay but the Manitowabi Report is not. To the extent it is like a
survey, it is no different from expert reports that include survey groups as part
of the data set considered.
[60]
The Manitowabi Report is relevant in that it
focusses on the First Nations oral history of the Williams Treaties which is
central to the issues in this trial. It is necessary in that it deals with grounded
theory methodology and analysis outside of the ordinary experience of the
Court. It is being presents by Dr. Manitowabi who is an anthropologist
and, for the purposes of these motions, is qualified to give evidence on the
subject matter of his Report. R v Spence 2005 SCC 71, at para 68.
[61]
The substantive issues are the hearsay nature of
the oral history interviews and Dr. Sieciechowicz’s Draft Report. The
admission of the oral history evidence in this case involves threshold
questions of usefulness and reliability.
[62]
The Supreme Court of Canada has considered the question
of hearing the Aboriginal perspective. In R v Sparrow, [1990] 1 S.C.R.
1075. Chief Justice Dickson and Justice La Forest wrote: "it is possible, and, indeed, crucial, to be sensitive
to the aboriginal perspective itself on the meaning of the rights at stake."
[63]
In Delgamuukw v British Columbia,
[1997] 3 S.C.R. 1010 at paras. 81-82, Chief Justice Lamer explained that an
understanding of the Aboriginal perspective assists in achieving reconciliation,
and that “aboriginal rights are truly sui generis,
and demand a unique approach to the treatment of evidence which accords due
weight to the perspective of aboriginal peoples.”
[64]
In Mitchell v Minister of National Revenue
2001 SCC 33 at paras. 31-33, Chief Justice McLachlin explained that the rules
of evidence must be applied flexibly in a manner commensurate with the inherent
difficulty posed by such claims and the promise of reconciliation embodied in
s. 35(1) of the Constitution Act 1982. In particular, Chief Justice McLachlin
discussed the admissibility of Aboriginal oral histories stating:
In Delgamuukw, mindful of these
principles, the majority of this Court held that the rules of evidence must be
adapted to accommodate oral histories, but did not mandate the blanket
admissibility of such evidence or the weight it should be accorded by the trier
of fact; rather, it emphasized that admissibility must be determined on a
case-by-case basis (para. 87). Oral histories are admissible as evidence where
they are both useful and reasonably reliable, subject always to the
exclusionary discretion of the trial judge.
Aboriginal oral histories may meet the
test of usefulness on two grounds. First, they may offer evidence of ancestral
practices and their significance that would not otherwise be available. No
other means of obtaining the same evidence may exist, even in the absence of
contemporaneous records. Second, oral histories may provide the aboriginal
perspective on the right claimed. Without such evidence, it might be impossible
to gain a true picture of the aboriginal practice relied on or its significance
to the society in question....
The second factor that must be considered
in determining the admissibility of evidence in aboriginal cases is
reliability: does the witness represent the reasonably reliable source of a
particular people's history? The trial judge need
not go so far as to find a special guarantee of reliability. However,
inquiries as the witness's ability to know and testify to orally transmitted
aboriginal traditions and history may be appropriate both on the question of
admissibility and the weight to be assigned the evidence if it meant it.
[Emphasis added]
[65]
Although the Supreme Court was considering
Aboriginal oral histories in respect of Aboriginal rights and titles claims in Sparrow,
Delgamuukw and Mitchell, the same principles apply in matters
involving Indian treaties. In R v Badger, [1996] 1 S.C.R. 771 at para.
54, Justice Cory wrote:
An interpretation of the Treaty properly
founded upon the Indians' understanding of its terms leads to the conclusion
that the geographical limitation on the existing hunting right should be based
upon a concept of visible, incompatible land use. This approach is consistent with the oral promises made to the Indians at the time the Treaty
was signed, and with the oral history of Treaty No. 8 Indians, with
earlier case law and with the provisions of the Alberta wildlife act itself.
Justice Cory went on to consider the oral
history evidence led in that case stating at para. 57:
The oral history of the Treaty No. 8
Indians reveals a similar understanding of the treaty promises. Dan McLean, an
elder from the Sturgeon Lake Indian Reserve, gave evidence in this trial. He
indicated that the understanding of the treaty promise was that the Indians
were allowed to hunt any time for food to feed their families. They could hunt
on unoccupied Crown land and on abandoned land. If there was no fence on the
land they could hunt, but if there was a fence, they could not hunt there. This
testimony is consistent with the oral histories presented by other Treaty No. 8
elders whose stories have been recorded by historians. The Indians understood that land would be taken up for homesteads,
farming, prospecting and mining and that they would not be able to hunt in
these areas or shoot at the settlers' farm animals or buildings. No doubt the
Indians believed that most of the Treaty No. 8 land would remain unoccupied and
so would be available to them for hunting, fishing and trapping. Citation
omitted
[Emphasis added]
[66]
In Tsilhqot’in Nation v British Columbia,
2004 BCSC 148, Justice Vickers had to decide whether to admit the oral
histories of the Tsilhqot’in and Xeni Gwet’in in evidence. He had before him
the affidavit evidence of John Dewhirst, an anthropologist and archaeologist
who was to be later called as a witness as well as the oral evidence of Chief
Roger Williams and two elders. Justice Vickers noted Dewhirst said the oral
history of the Tsilhqot’in is maintained by repetition and the Tsilhqot’in are generally
reluctant to give oral history unless they are confident they are able to
accurately recount an event. Justice Vickers reached a similar conclusion but
cautioned such a preliminary observation was not to be seen as a finding of
fact that would be made at the conclusion of the trial. Justice Vickers then
set out a process for ascertaining personal information about the witnesses’
ability to recount oral history and their sources of knowledge.
[67]
Given the foregoing, oral histories about the
making of an Indian treaty are admissible subject to the guidance provided by
the Supreme Court of Canada, namely that such oral histories must be considered
on a case-by-case basis to determine if the oral histories satisfy the
threshold requirements of being useful and reasonably reliable. Further, preliminary
findings about admissibility are not findings of fact, which are not only made when
the evidence is complete at the end of a trial.
[68]
Ontario submits that the Manitowabi Report
addresses issues that are not defined in the pleadings. However, Aboriginal
oral histories have their own structure, one that is not necessarily in
conformity with pleadings in an action. Chief Justice Lamer addressed this
difference in Delgamuukw, above, at para. 85 when he drew from the Report of the Royal Commission on Aboriginal Peoples
(1996) vol. 1 (Looking Forward, Looking Back), at p. 133:
The aboriginal tradition in the recording of
history is neither linear nor steeped in the same notions of social progress
and evolution [as in the non-aboriginal tradition]. ...
In the Aboriginal traditions the purpose of
repeating oral accounts from the past is broader than the role of written
history in Western societies. It may be to educate the listener, to communicate
aspects of the culture, to socialize people into a cultural tradition, or to
validate the claims of a particular family to authority and prestige. ...
Oral accounts of the past included good deal
of subjective experience. They are not simply in a detached recounting of
factual events but, rather, are "facts enmeshed in the stories of a
lifetime". …
[69]
Although the First Nations’ interviewee oral
histories upon which Dr. Manitowabi's report is based do not come in a
tidy package in accordance with legal sensibilities or the Rules, they
are about the making of the Williams Treaties, a subject central to these
proceedings. Dr. Manitowabi describes, and, indeed, titles his report as
an oral narrative of the Williams Treaties.
[70]
While the oral histories also contain subject
matter not directly related to the issues set out in the pleadings, some being
contextual and some clearly unrelated, they are, nevertheless, useful for
understanding the Aboriginal perspective on the making of the Williams Treaties
in a more holistic way.
[71]
Ontario also submits that the report is not
reliable because it is based on Dr. Sieciechowicz's Draft Report. Since she
is not available for cross‑examination, and the Plaintiffs had not proposed
to put forward the interviewees as witnesses in this trial, Ontario says the
recorded interviews have no circumstantial guarantee of reliability or
trustworthiness.
[72]
Given that Dr. Sieciechowicz is no longer
living, her statements regarding her observations meet the hearsay test of
necessity. Courts have admitted reports by deceased experts when the admission
of the report was necessary, the expert did not have a motive to fabricate the
findings, and another expert witness with the same qualifications could testify
to the reports reliability. Tulshi v Ioannou, [1994] O.J. No. 1472 (Gen.
Div.) at paras. 16-18.; Colley v Travellers Insurance Co., [1998] N.S.J.
No. 405 (N.S.S.C.) at paras. 15-17; Scime v Guardian Insurance Company of
Canada, [1988] O.J. No. 2878, Augustine v Inco Limited, 2006 CanLII
21783 (Ont. S.C.) at para. 21.
[73]
Dr. Manitowabi would be available for cross‑examination.
He reports Dr. Sieciechowicz followed the grounded theory research
approach, which he himself also used and which is accepted among the academic
community, as further confirmed by Dr. Hedican. Since Dr. Sieciechowicz
engaged in research using an academically accepted approach and Dr. Manitowabi
is available for cross‑examination, I am satisfied that the reliability
and trustworthiness of Dr. Sieciechowicz's work may be assessed through Dr. Manitowabi's
expert testimony.
[74]
Ontario's other concern, that the First Nations
interviewees would not be available for cross‑examination, has been dealt
with as the Plaintiffs have modified their position and now say that some of
the First Nation interviewees would be available to testify and be cross-examined.
[75]
The advantage of receiving expert testimony on
Aboriginal oral history is that it obviates the need to hear a very large
number of witnesses. It also has the advantage of discerning themes that emerge
from the oral histories recounted by a large number of First Nation members across‑seven
different First Nations. In this way, it is, both a survey and a socio-anthropological
thematic analysis of the collective First Nations' oral history. The
disadvantage is that it is one step removed, and in this case two steps
removed, from hearing the Aboriginal voice, which could lead to evidence of the
Aboriginal perspective being overtaken by experts.
[76]
Having said that, in this case, the Plaintiffs
have indicated that there are First Nation witnesses who gave interviews
available to testify. In addition, Canada and Ontario have identified archival oral
history recordings that are also available for comparison. These two different
avenues are thus available to cross‑check the reliability and
trustworthiness of the interviews upon which Dr. Sieciechowicz’s and Dr. Manitowabi's
report are based.
[77]
With the foregoing methods available to assess
the reliability of the oral history interviews, I am satisfied that, Dr. Manitowabi's
report, meets the requirements for admissibility. Questions regarding relevance
of extraneous parts of the report, or the weight to be afforded the oral history
evidence will be determined at trial.
[78]
Finally, there remains the question of
prejudicial impact of the late filing of the Manitowabi Report and the
accompanying oral history interviews. Both Canada and Ontario emphasize the
very late provision of the Manitowabi Report but also propose a number of
mitigative measures.
[79]
Both Canada and Ontario say they require an
adjournment of at least one year, if not more, in order to engage experts, who
can both advise and prepare reports on Dr. Manitowabi’s Report and Aboriginal
oral history, prior to any cross-examination of Dr. Manitowabi. Canada
also takes the position that if Dr. Manitowabi's report is admitted and
its own expert produces a responding report, it must see the Plaintiffs' reply
report to that response before Dr. Manitowabi testifies. Canada does not
offer any substantial reason why this should be so. I need not address this
further since Canada would have the opportunity to have its expert provide a
further response to any reply report provided by the Plaintiffs and it remains
to be seen whether events unfold in this manner.
[80]
The Plaintiffs say the parties had agreed that
documents attached to expert reports need not be included in the affidavits of
documents. This process was observed with respect to the filed expert reports
by all parties. The Plaintiffs’ clear intention was that the First Nations
interviews were to be part of an expert report by Dr. Sieciechowicz. While
Canada and Ontario say they requested disclosure of the First Nations oral
history recordings, they do not respond to the Plaintiffs' submission that
these interviews were part of an expert report which was much delayed by the circumstances.
[81]
In my view it was reasonable for the parties to
await the closing of pleadings prior to initiating settlement discussions. I
also think it was reasonable for the Plaintiffs to focus on negotiations during
that time. The Plaintiffs' had advised they would not be putting forth Dr. Sieciechowicz’s
expert report in 2007. Pleadings closed that year and the parties attempted to
negotiate a settlement but were unsuccessful. When the trial was about to
commence in in 2009, the parties again sought an adjournment to attempt
negotiating a settlement. That effort was similarly unsuccessful and the trial
commenced in 2012.
[82]
While I accept the Plaintiffs' explanation for
not advancing their efforts to obtain an expert report on the oral history of
the Williams Treaties between 2007 and 2012, the situation for the Plaintiffs
changed once the trial began in 2012. Although the Plaintiffs struggled to gain
access to Dr. Sieciechowicz's Draft Report, it was open for them to seek
the assistance of the Court in that endeavour. At the very least, they should
have put Canada and Ontario on notice that they were making this effort. The
Plaintiffs say they did not determine the need for the oral history evidence
until they learned of the irregularities in the engrossed Williams Treaties. I
find the Plaintiffs’ explanation to be insufficient.
[83]
Ontario has submitted that
Dr. Sieciechowicz's report ought to be redacted from Dr. Manitowabi's
report. I disagree. Dr. Sieciechowicz's methodology was considered by
Dr. Manitowabi and is a necessary element of Dr. Manitowabi's
analysis. Dr. Manitowabi describes his report as a being a unique blend of
the two expert research reports.
[84]
I am also satisfied that a more complete
collection of the First Nations oral history on the 1923 Williams treaties
would assist the Court in addressing the question of reliability of the oral
history narratives upon which Dr. Manitowabi's report is based.
[85]
While the Plaintiffs did not provide the
Manitowabi Report until this late stage in the proceedings, it seems to me that
Canada and Ontario were not entirely unaware of oral history accounts of the
First Nations' perspectives about the Williams Treaties. I note the ICO oral
history recordings were made with the involvement of all three parties: the
First Nations (through the agency of the Union of Ontario Indians), Canada, and
Ontario. Additionally, the audio recordings of elders made at Christian Island
were done with a representative of Canada present. As matters stand, the
Plaintiffs do not disagree that the recordings should become part of the trial
record. I am satisfied the First Nations Aboriginal perspective should be heard
and that includes the other oral history recordings which are a further expression
of the First Nations oral history.
[86]
This Court has resisted re-examining the
evidence in the Howard trial since it is impermissible for a trial court
to adopt the fact finding of another trial court. Howard dealt with the
question of treaty fishing rights. Canada, which earlier denied any such right
existed in its Second Amended Statement of Defence, now submits that the
Supreme Court of Canada did not fully address this issue in Howard. In
result, the testimony of Ralph Loucks in Howard should be a relevant
part of the larger narrative of the First Nations' Aboriginal perspective on
the 1923 Williams Treaties.
[87]
There have been instances where courts have
accepted testimony in a prior proceeding in a subsequent proceeding, the most
common example being witness testimony in a preliminary inquiry where that
witness is not available to testify at trial. I also note section 23 of the Canada
Evidence Act, R.S.C. 1985, c. C-5, provides that evidence of any preceding
or record in a court in the province may be given in an action by
exemplification or a certified copy of the preceding.
[88]
If one is to look at a complete record of the
oral history of the First Nations about the Williams Treaties, it seems to me
necessary to consider the testimony of Ralph Loucks in the Howard trial.
That does not include all the evidence in the Howard trial, but rather only
the Ralph Loucks’ testimony. While the trial judge preferred Ralph Loucks'
testimony in Howard that does not govern how this Court is to treat that
testimony. Rather, this Court must decide the significance of Ralph Loucks'
testimony in the context of all other evidence presented in this trial
including the oral narratives provided by other First Nations members, through expert
testimony, recorded interviews, audio recordings or live testimony. In this
way, Ralph Loucks’ voice is added to the First Nations’ collective Aboriginal
perspective on the Williams Treaties.
[89]
The First Nations were in favour of including
the community witnesses’ statements during the viewing as part of the oral
history record, on the condition that the video recording take precedence over
any transcript of the testimony. If the viewing were included in the court
record, Ontario proposed that the viewing videos be entered as exhibits.
[90]
Given that six of the seven community witnesses
who testified at the start of this trial in 2012 were interviewed by Dr. Sieciechowicz
and also provided sworn statements during the course of the viewing, I am
satisfied that the seven statements taken during the viewings ought to be
included in order to complete the First Nations oral history record of the
Williams Treaties.
[91]
Ontario also seeks to have reports by Ian Johnson
produced since Dr. Sieciechowicz said she reviewed Ian Johnson's reports.
Without more I do not see any basis for requiring Ian Johnson's report to be
produced given Dr. Sieciechowicz does not specify which reports she
reviewed nor cites from any specific Ian Johnson report in her Draft Report.
However, the Plaintiffs no longer raise an objection to the Ian Johnson reports
and I leave that question to the parties.
[92]
Finally, I find there are mitigative measures
which can be taken would adequately address much of the prejudice arising from
the late filing of the Manitowabi Report. The mitigative measures include:
a.
the Direction made February 10, 2015 organizing
the trial order into three phases being liability, remedies and the third-party
action, is set aside; the trial organization will revert to usual order: the
Plaintiff will put their entire case on both liability and remedies; followed
by the Defendant's case and then the Third Party’s case; all of which is
followed by the third-party action between the Defendant and Third Party;
b.
the Order made July 10, 2009 permitting the
Plaintiffs to examine eight expert witnesses is varied to permit the Plaintiffs
to examine nine expert witnesses; and the Plaintiffs may call their Aboriginal
perspective evidence through the testimony of Dr. Manitowabi and file his
expert report;
c.
those First Nations members who were interviewed
by Dr. Sieciechowicz, as selected by the Plaintiffs, are to testify and be
available for cross-examination; Canada and Ontario may apply to the Court to
have called other First Nations witnesses who participated in the oral history
interviews but were not selected by the Plaintiffs to testify;
d.
the video recordings made of the statements made
by the community witnesses during the viewings are to be entered as exhibits; Canada
and Ontario may also recall the First Nations' community witnesses for cross‑examination
with respect to their statements during the viewings;
e.
all of the Aboriginal perspective witnesses and
the community witnesses will testify in the First Nations’ communities of Rama
and Curve Lake; they will be available for cross-examination by Canada and
Ontario in accordance with a protocol similar that that previously adopted as
may be modified through consultation among the parties having regard to the
Federal Court Aboriginal Litigation Practice Guidelines and the approval of
this Court;
f.
Dr. Manitowabi's testimony is to be called later
in the Plaintiffs’ case; in addition, he should have an opportunity to review
the additional oral history recordings and transcripts prior to testifying;
g.
Canada and Ontario may defer cross-examination
of Dr. Manitowabi until after they have retained their own expert and obtained
an expert report responding to Dr. Manitowabi's report; however, they must
be prepared to proceed with their evidence within the time constraints for this
trial;
h.
the oral history audio recordings identified by
the parties including:
i.
the ICO audio recordings, and
ii.
the Christian Island, John Loucks’, Scugog and
Curve Lake recordings
shall
be entered into the record as exhibits by the parties in possession of those
recordings;
i.
the transcript of Ralph Loucks’ testimony in R
v Howard is to be introduced into evidence by Canada;
j.
for greater certainty the Plaintiffs are not
required to provide an amended affidavit of documents for the interviews and
documents that are included as appendices to Dr. Manitowabi’s expert
report.
[93]
Additional mitigative matters to those set out
in this order can be addressed in the course of trial management.
[94]
There will be no adjournment of the trial. The
Plaintiff will proceed with calling evidence on both liability and remedies
after which the Defendant will call its evidence and then the Third Party.
[95]
Costs are awarded against the Plaintiff First
Nation in any event.
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