Date: 20091001
Docket: T-195-92
Citation: 2009 FC 994
Toronto,
October 1, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ALDERVILLE INDIAN BAND now know as
Mississaugas of Alderville First Nation, and Gimma Jim Bob Marsden, suing on
his own behalf and on behalf of the members of the Mississaugas of Alderville
First Nation
BEAUSOLIEL INDIAN BAND now know as Beausoliel First
Nation, and Gimaaniniikwe Valerie Monague, suing on her own behalf and on
behalf of the members of the Beausoleil First Nation
CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND now know as
Chippewas of Georgina Island First Nation, and Gimaa William McCue, suing on
his own behalf and on behalf of the members of the Chippewas of Georgina Island First Nation
CHIPPEWAS OF RAMA INDIAN BAND now know 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 Gimaa Greg Cowie, suing on his own behalf and on behalf of the
members of the Hiawatha First Nation
MISSISSAUGAS OF SCUGOG INDIAN BAND now know 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
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
and
HER MAJESTY THE QUEEN IN RIGHT OF ONTATIO
Third Party
REASONS FOR ORDER AND ORDER
[1]
The
Plaintiffs apply for this Court to hear the testimony of community profile
witnesses of the seven Plaintiff First Nations in one or more of the Williams
Treaties First Nations. The Plaintiffs also apply to have the Court view each
of the Plaintiffs’ communities prior to the testimony of the community profile
witnesses.
[2]
The
Plaintiffs have seven community profile witnesses to represent each of the
seven First Nations. Each witness is to provide evidence on the past and
present economic and social structure of his or her respective First Nation.
[3]
The
Plaintiffs originally presented this in the form of a proposal which was
subsequently set down for hearing as a Motion. Subsequent to the adjournment
of the hearing, I ordered this Motion to proceed under Rule 369 of the Federal
Court Rules SOR/98-106 (the “Rules”). I have now reviewed the
submissions of the Plaintiff First Nations and the Defendant Canada (Her
Majesty in Right of Canada) on this subject. The Third Party Ontario (Her
Majesty in Right of Ontario) has chosen not to make any submission.
Relevant Legislation
[4]
Section
15 of the Federal Courts Act, R.S., 1985, c. F-7 (“FCA”) concerns
sittings of the Federal Court.
15. (1) Subject to the
Rules, any judge of the Federal Court may sit and act at any time and at any
place in Canada for the transaction of the business of the court or any part of
it and, when a judge so sits or acts, the judge constitutes the court.
[5]
Rule 28 of the Rules
states:
The Court may sit
at any time and at any place.
In
addition, Rule 29 of the Rules states:
(1) Subject to
subsection (2) and rule 30, hearings of the Court, other than pre-trial or
dispute resolution conferences, shall be open and accessible to the public.
While
the Court may sit in camera by application, this is not an issue here.
The request is for public sittings in the respective First Nation communities.
Analysis
[6]
In Canada (AG)
v. Hennelly, [1995] F.C.J. No. 320, Justice Muldoon expanded on s. 15 of
the FCA.
“The Federal Court is a national, trans-provincial institution
with registry offices established in certain populous centres across Canada and
itinerant judges travelling across Canada in order to adjudicate cases
instituted in those various registry offices… adjudication hearings may (not
must) be held in any place where there are available basic court facilities.”
[7]
Where
the Court sits is a matter to be decided at the Court’s discretion.
[8]
The
Plaintiffs’ community witnesses wish to testify in the Williams Treaty First
Nations communities. It will facilitate the testimony of the community
witnesses who are testifying about communities they are either on or near. The
sittings in the First Nation communities advance the openness and accessibility
of this Court to the members of the First Nations who have an interest in this
proceeding. This will also allow the members of those communities to observe
and understand the court process.
[9]
I have
decided to grant the Plaintiffs’ application in part.
[10]
The
evidence of the Plaintiffs’ community profile witnesses for the Mississaugas of
Alderville First Nation, Hiawatha First Nation and Curve Lake First Nation will
be heard in the Curve Lake First Nation. The evidence of the community profile
witnesses for Beausoleil First Nation, the Chippewas of Georgina Island First
Nation, Mnjikaning First Nation and the Mississaugas of Scugog Island First
Nation will be heard in the Mnjikaning First Nation.
[11]
The
Court sittings in the First Nations should observe the following:
a.
The
court sitting will be in a room suitable for the hearing of the testimony of
the community witnesses;
b.
No
objects capable of being relevant demonstrative evidence shall be in the court
room save what will be introduced in the course of the testimony of the
community witnesses;
c.
The
commencement of court may be preceded by a First Nations ceremony or protocol
in keeping with the custom of the First Nation where the court is sitting and
the role of the Court; and
d.
Translation
facilities should be available as necessary.
[12]
On the question
of viewing, it seems to me the jurisprudence in Canada points to one function of viewings, and that is to gain a
better understanding of evidence. Viewings meant to provide a judge with a way
of collecting evidence is frowned upon. Justice Rothstein, while sitting on
this Court, canvassed jurisprudence considering both streams in Jaworski v. Canada (Attorney General), [1990] 2 F.C. 106 (F.C.T.D). He
concluded, and I agree, that a viewing is not an evidence gathering exercise,
so much as an opportunity for the trial judge to test what he hears against
what he sees. And this is what I take to be a way a judge may gain a better
understanding of all the evidence heard before or after a viewing.
[13]
I
adjourn the hearing of the Plaintiffs’ application for a viewing of the First
Nations community until after hearing all of the seven community witnesses. I
am satisfied that the viewing should take place after there is evidence that
provides a framework for the viewing. In addition, the parties should have the opportunity to consider
co-operatively what the arrangements for a viewing should be and agree on a
process. If the parties are unable to agree, then they may make submissions to
the Court after which the Court may set out the terms for the viewing if it
decides viewings are appropriate.
[14]
I direct the
parties make their further submissions concerning viewings after the sittings
in Curve Lake and Mnjikaning First Nations.
ORDER
THIS COURT ORDERS that:
1.
The
evidence of the Plaintiff’s community profile witnesses for the Mississaugas of
Alderville First Nation, Hiawatha First Nation and Curve Lake First Nation will
be heard in the Curve Lake First Nation.
2.
The
evidence of the community profile witnesses for Beausoleil First Nation, the
Chippewas of Georgina Island First Nation, Mnjikaning First Nation and the
Mississaugas of Scugog Island First Nation will be heard in the Mnjikaning
First Nation.
3.
The
parties are to attend to arrangements for the Court sittings in the Curve Lake
First Nation and Mnjikaming First Nation communities keeping in mind the
direction I have set out above.
4.
The
hearing of the Plaintiffs’ application for a viewing of the seven Plaintiff
First Nations will occur after hearing the seven community witnesses. That
application therefore will be heard at the close of testimony on the Curve Lake
First Nation and Mnjikaming First Nations.
"Leonard S. Mandamin"
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