Sawridge Indian Band v. Canada, 2007 FC 657

JudgeRussell, J.
CourtFederal Court (Canada)
Case DateMay 10, 2007
JurisdictionCanada (Federal)
Citations2007 FC 657;(2007), 307 F.T.R. 163 (FC)

Sawridge Indian Band v. Can. (2007), 307 F.T.R. 163 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. JL.007

Sawridge Band (plaintiff) v. Her Majesty the Queen (defendant) and Congress of Aboriginal Peoples, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women's Association of Canada (interveners)

(T66-86A)

Tsuu T'ina First Nation (plaintiff) v. Her Majesty the Queen (defendant) and Congress of Aboriginal Peoples, Native Council of Canada (Alberta), Non-Status Indian Association of Alberta and Native Women's Association of Canada

(T-66-86-B; 2007 FC 657)

Indexed As: Sawridge Indian Band v. Canada

Federal Court

Russell, J.

June 19, 2007.

Summary:

In 1986, the Sawridge Indian Band and the Tsuu T'ina First Nation (formerly Sarcee Indian Band) (the plaintiffs) sued the Crown seeking a declaration that the 1985 amendments to the Indian Act (Bill C-31) respecting the rights of Indian bands to control membership lists were unconstitutional. The original trial decision by Muldoon, J. ((1995), 97 F.T.R. 161), was quashed on appeal on the grounds of reasonable apprehension of bias by the trial judge ((1997), 215 N.R. 133). A new trial was ordered. In June 1997, a case management judge, Hugessen, J., was assigned to the case. Hugessen, J., experienced difficulties in moving the proceedings to trial, but on March 26, 2004, issued an order that "provided a comprehensive road map to take the matter to trial on January 10, 2005", including directions regarding discovery and witnesses. In late March 2004, Russell, J., was appointed trial judge and thereafter, Hugessen, J., ceased to have any further involvement with the proceedings. Several pre-trial matters arose, including issues relating to will-say statements, pleadings, scope of matters to be decided at trial and relevance. On one such motion, on October 18, 2004, Russell, J., struck all of the plaintiffs' proposed witnesses for non-compliance with will-say requirements but gave them an opportunity to seek redemption in a later motion (261 F.T.R. 291). On November 25, 2004, Russell, J., gave instructions as to how the remaining pre-trial issues should be dealt with and adjourned the trial until the issues were resolved ([2004] F.T.R. Uned. 995). In particular, in the order of November 25, Russell, J., set out a procedure to allow the plaintiffs to complete and serve their witness list and will-say statements, and for the Crown to raise any concerns about the materials so served. The Crown moved to strike certain of the will-says served by the plaintiffs in their entirety and sought a direction that the plaintiffs not be allowed to call those witnesses at trial whose will-says were struck (the first motion). Alternatively, the Crown sought to strike portions of the will-says and a direction that the plaintiffs not be allowed to adduce evidence at trial respecting the portions struck. The Crown also requested four months to prepare for trial once the plaintiffs' final witness list and admissible will-says were determined. In a second motion the Crown moved to strike a voluminous expert report served by the plaintiffs, arguing that the report did not meet the test of relevance or necessity or, if admitted, would unduly increase the costs and extend the length of the trial for no valid purpose.

The Federal Court, in a decision reported 275 F.T.R. 1, with respect to the first motion, determined whether the will-says went beyond the court's order or the scope of the pleadings and determined what witnesses could be called at trial (i.e., the November 7, 2005 decision). The trial date was to be established later. In a decision reported 275 F.T.R. 93, the court allowed the Crown's second motion and struck the report in its entirety. The plaintiff Indian Bands appealed. The appeals were consolidated by court order - see [2006] N.R. Uned. 28.

The Federal Court of Appeal, in the decision reported 351 N.R. 144, dismissed the appeals. The trial was scheduled to proceed on January 24, 2007. The plaintiff Indian bands filed an application for leave to appeal, and moved to adjourn the trial to March 12, 2007, pending the outcome of their application for leave.

The Federal Court, in a decision reported 301 F.T.R. 6, dismissed the motion for an adjournment. The plaintiffs brought a motion seeking reinstatement of five named witnesses who were excluded in accordance with the November 7, 2005 decision of Russell, J., and previous related decisions, including the October 18, 2004, decision where he struck all of the plaintiffs' proposed witnesses for non-compliance with will-say and other requirements and then gave them an opportunity to seek redemption in the motion that resulted in the decision of November 7, 2005.

The Federal Court, in a decision reported 307 F.T.R. 250, determined that only one of the five witnesses met the criteria for rehabilitation and could be called to give evidence, but only on the basis of the will-say that was served from him on December 15, 2004, a deadline previously established by Russell, J. The trial commenced on January 24, 2007. The plaintiffs brought a motion for a mistrial, arguing that the court had foreclosed the plaintiffs' opportunity to adequately state their case and had made rulings regarding the admissibility of evidence that rendered the trial unfair. In particular, the plaintiffs claimed that the court had created a situation where the will-says submitted by the plaintiffs in accordance with Justice Hugessen's Pre-Trial Order of March 26, 2004 and Russell, J.'s, order of November 25, 2004 had been used as a legal ground for the exclusion of relevant, admissible evidence at trial. Further, the plaintiffs claimed that rulings made by the court to this point in the trial showed that the Crown had a huge advantage over the plaintiffs because the playing field was no longer level.

The Federal Court, per Russell, J., in the decision reported below, refused to grant a mistrial. He stated that it would appear from what the plaintiffs presented on this motion, that unless they were allowed, after repeated assurances that they had complied, to now breach the will-say requirement and the standards ordered by the court, they would not be able to adequately make their case. The plaintiffs claimed that in order to have adequately made their case the court, in its rulings on admissibility based upon ambush, should have disconnected the will-says standards (which they themselves argued at trial were the "key" to notice and ambush issues) from any consideration of the admissibility of relevant evidence at trial. They wanted a mistrial because the court had not made this disconnection. The court stated that to change the system at trial to disconnect will-say disclosure from questions of the admissibility of evidence, would, after all the reassurances the plaintiffs had given concerning their will-says, condone, encourage and enhance the opportunities for the very thing that the will-says were intended to prevent: ambush at trial. Russell, J., stated that if the will-says could not be disconnected from the admissibility of evidence at trial (which he found they could not), then this left the plaintiffs' own conclusion and advice to the court that they could not adequately make their case. The court stated that these were serious issues that needed to be addressed before the trial could continue and called upon counsel to confer and advise the court as quickly as possible as to how and when these matters could be addressed.

Courts - Topic 4077.1

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Mistrials - [See second Practice - Topic 5085 ].

Evidence - Topic 4010

Witnesses - General - "Will say" statements - In 1986 two Indian bands (the plaintiffs) sued the Crown seeking a declaration that 1985 amendments to the Indian Act (Bill C-31) dealing with the rights of Indian bands to control membership lists were unconstitutional - A second trial became necessary - The case management judge and the trial judge established a procedure and standards for the use of witness lists and will-say statements - The second trial began on January 24, 2007 - The plaintiffs moved for a mistrial, arguing that the court had foreclosed the plaintiffs' opportunity to adequately state their case and had made rulings regarding the admissibility of evidence that rendered the trial unfair (i.e., the plaintiffs claimed that the court had misused the will-says by using them as a legal ground to exclude relevant evidence) - The Federal Court refused to grant a mistrial - The court stated that it would appear that from what the plaintiffs presented on this motion, unless they were allowed, after repeated assurances that they had complied, to now breach the will-say requirement and the standards ordered by the court, they would not be able to adequately make their case - The plaintiffs claimed that in order to have adequately made their case the court, in its rulings on admissibility based upon ambush, should have disconnected the will-says standards (which they themselves argued at trial were the "key" to notice and ambush issues) from any consideration of the admissibility of relevant evidence at trial - They wanted a mistrial because the court had not made this disconnection - The court stated that to change the system at trial to disconnect will-say disclosure from questions of the admissibility of evidence, would, after all the reassurances the plaintiffs had given concerning their will-says, condone, encourage and enhance the opportunities for the very thing that the will-says were intended to prevent: ambush at trial - See paragraphs 381 to 388.

Evidence - Topic 4010

Witnesses - General - "Will say" statements - In 1986 two Indian bands (the plaintiffs) sued the Crown seeking a declaration that 1985 amendments to the Indian Act (Bill C-31) dealing with the rights of Indian bands to control membership lists were unconstitutional - A second trial became necessary - In November 2004, with the second trial still not underway, the trial judge (Russell, J.), set out a procedure to allow the plaintiffs to complete and serve their witness list and will-say statements and for the Crown to raise any related concerns - Russell, J., in a decision dated November 7, 2005, examined the will-say statements, excluded any will-says revealed as obvious attempts to go beyond the pleadings and determined which witnesses could be called - The second trial began on January 24, 2007 - The plaintiffs moved for a mistrial, arguing that the court had foreclosed the plaintiffs' opportunity to adequately state their case and had made rulings regarding the admissibility of evidence that rendered the trial unfair - In particular, the plaintiffs claimed that the court had misused the will-says by using them as a legal ground to exclude relevant evidence - The Federal Court refused to grant a mistrial, stating that the motion was an abuse of process - The court stated that in reality, the way the will-says were used was clearly an inevitable consequence of the whole pre-trial disclosure system devised to solve the particular problems and demands to which the actions gave rise - The court opined that the plaintiffs were attempting to reargue the whole will-say issue again at trial, a matter that had been settled in earlier proceedings - See paragraphs 1 to 321.

Evidence - Topic 4010

Witnesses - General - "Will say" statements - In 1986 two Indian bands (the plaintiffs) sued the Crown seeking a declaration that 1985 amendments to the Indian Act (Bill C-31) dealing with the rights of Indian bands to control membership lists were unconstitutional - A second trial became necessary - In November 2004, with the second trial still not underway, the trial judge (Russell, J.), set out a procedure to allow the plaintiffs to complete and serve their witness list and will-say statements and for the Crown to raise any related concerns - Russell, J., in a decision dated November 7, 2005, examined the will-say statements, excluded any will-says revealed as obvious attempts to go beyond the pleadings and determined which witnesses could be called - The second trial began on January 24, 2007 - The plaintiffs moved for a mistrial, arguing that the court had foreclosed the plaintiffs' opportunity to adequately state their case and had made rulings regarding the admissibility of evidence that rendered the trial unfair - In particular, the plaintiffs argued that the court's rulings with respect to testimony of their eight lay witnesses called to date, had caused an imbalance in the conduct of the proceedings - The Federal Court refused to grant a mistrial on this basis - The court stated that the plaintiffs were re-arguing rulings made during trial and any such matter regarding those rulings was an issue for any appeal that might be taken and not an issue for mistrial - See paragraphs 321 to 334.

Evidence - Topic 4010

Witnesses - General - "Will say" statements - In 1986 two Indian bands (the plaintiffs) sued the Crown seeking a declaration that 1985 amendments to the Indian Act (Bill C-31) dealing with the rights of Indian bands to control membership lists were unconstitutional - A second trial became necessary - In November 2004, with the second trial still not underway, the trial judge (Russell, J.), set out a procedure to allow the plaintiffs to complete and serve their witness list and will-say statements and for the Crown to raise any related concerns - Russell, J., in a decision dated November 7, 2005, examined the will-say statements, excluded any will-says revealed as obvious attempts to go beyond the pleadings and determined which witnesses could be called - The second trial began on January 24, 2007 - The plaintiffs moved for a mistrial, arguing that the court had foreclosed the plaintiffs' opportunity to adequately state their case and had made rulings regarding the admissibility of evidence that rendered the trial unfair - In particular, the plaintiffs argued that an imbalance had occurred which gave the Crown a huge advantage over the plaintiffs - The Federal Court refused to grant a mistrial on this basis - The court stated that no unfairness had occurred and the Crown did not enjoy some advantage in cross-examination or otherwise that would render the proceedings unfair - See paragraphs 335 to 380.

Practice - Topic 5085

Conduct of trial - Mistrials - Circumstances when ordered - [See all Evidence - Topic 4010 ].

Practice - Topic 5085

Conduct of trial - Mistrials - Circumstances when ordered - The Federal Court, per Russell, J., reviewed the general principles relating to mistrials in civil cases - He stated that there was some case law to suggest that a court could consider a mistrial motion in a civil context where evidence had been improperly admitted - Russell, J., however, questioned whether he, as a judge of the Federal Court, had jurisdiction to declare a mistrial - Assuming he had such jurisdiction, he stated that in considering a mistrial in the case at bar, the following principles were applicable: (1) the decision to grant a mistrial was discretionary; (2) in exercising that discretion, he should consider whether, in all of the circumstances of the case, a mistrial was needed to prevent a miscarriage of justice and whether the facts and arguments placed before the court disclosed a real danger of prejudice or miscarriage of justice or, at the very least, a reasonable possibility of prejudice to the plaintiffs; and (3) he should bear in mind that a mistrial was extraordinary relief and that, even if he thought that prejudice had occurred, before granting the remedy, he should allow other options to be canvassed to see if the trial could be saved in a way that was just and fair in the circumstances - See paragraphs 389 to 419.

Cases Noticed:

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 390].

R. v. Taillefer and Duguay (1995), 40 C.R.(4th) 287 (Que. C.A.), refd to. [para. 392].

R. v. Bertucci (1984), 31 Sask.R. 1; 11 C.C.C.(3d) 83 (C.A.), refd to. [para. 394].

R. v. Emkeit (1972), 6 C.C.C.(2d) 1 (S.C.C.), refd to. [para. 395].

R. v. Woods (1989), 32 O.A.C. 122; 49 C.C.C.(3d) 20 (C.A.), leave to appeal refused [1990] 2 S.C.R. xii; 127 N.R. 239; 44 O.A.C. 80, refd to. [para. 395].

R. v. Khan (M.A.) (2001), 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 395].

R. v. Bernard, [1999] 4 C.N.L.R. 133 (N.S. Prov. Ct.), refd to. [para. 398].

Schick v. Canada (Attorney General) et al. (1986), 5 F.T.R. 82 (T.D.), refd to. [para. 400].

Canada (Minister of Citizenship and Immigration) v. Seifert, [2006] F.T.R. Uned. 111; 2006 FC 223, refd to. [para. 401].

Spiring et al. v. Young et al. (2005), 193 Man.R.(2d) 223 (Q.B.), refd to. [para. 402].

Spartan Developments Ltd. v. Capital City Savings and Credit Union Ltd. - see Spartan Developments Ltd. et al. v. 206559 Developments Ltd. et al.

Spartan Developments Ltd. et al. v. 206559 Developments Ltd. et al. (2003), 346 A.R. 124; 320 W.A.C. 124 (C.A.), refd to. [para. 405].

Carey v. Ontario, [1991] O.J. No. 1819 (C.A.), refd to. [para. 405].

Tupper v. Van Rody (2006), 214 O.A.C. 19 (Div. Ct.), refd to. [para. 405].

De Groote et al. v. Canadian Imperial Bank of Commerce et al. (1998), 71 O.T.C. 252 (Gen. Div.), refd to. [para. 405].

R. v. Marroquin-Pineda, [2002] O.J. No. 2249 (C.J.), refd to. [para. 405].

R. v. Cipriano, [1999] Q.J. No. 3006 (Que. Mun. Ct.), refd to. [para. 405].

de Araujo v. Read (2004), 196 B.C.A.C. 271; 322 W.A.C. 271 (C.A.), refd to. [para. 405].

Kralz v. Murray, [1954] 1 D.L.R. 781 (Ont. C.A.), refd to. [para. 405].

Burgess v. Taylor, 44 S.W.3d 806, refd to. [para. 405].

Skaggs v. Commonwealth, 694 S.W.2d 672, refd to. [para. 405].

Counsel:

Edward H. Molstad, Marco S. Poretti, David Sharko, Nathan Whitling and Catherine Twinn, for the plaintiffs;

E. James Kindrake, Kathleen Kohlman, Wayne M. Schafer, Dale Slaferek and Janell Koch, for the defendant;

Janet Hutchison, for the intervener, Congress of Aboriginal Peoples;

Jon Faulds, Derek Cranna and Jeremy L. Taylor, for the intervener, Native Council of Canada (Alberta);

Mary Eberts and Kasari Govender, for the intervener, Native Women's Association of Canada;

Laura C. Snowball and Michael Donaldson, for the intervener, Non-Status Indian Association of Alberta.

Solicitors of Record:

Parlee McLaws LLP, Edmonton, Alberta and Twinn Law Office, Slave Lake, Alberta, for the plaintiffs;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant;

Chamberlain Hutchison, Edmonton, Alberta and Law Office of Mary Eberts, Toronto, Ontario, for the intervener, Native Women's Association of Canada;

Field LLP, Edmonton, Alberta, for the intervener, Native Council of Canada (Alberta);

Burnet Duckworth & Palmer LLP, Calgary, Alberta,   for   the   intervener,    Non-Status Indian Association of Alberta.

This motion was heard at Edmonton, Alberta, on May 10, 2007, by Russell, J., of the Federal Court, who delivered the following decision on June 19, 2007.

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12 practice notes
  • The constitution's peoples: approaching community in the context of section 35 of the Constitution Act, 1982.
    • Canada
    • McGill Law Journal Vol. 54 No. 1, March 2009
    • March 22, 2009
    ...The new trial, it appears, did not proceed smoothly. The Band, after calling eight lay witnesses, brought an unsuccessful mistrial motion: 2007 FC 657, 307 F.T.R. 163 . The Band then chose to close its case. The trial judge, apparently with the agreement of the parties, granted the Crown's......
  • McDermott v. McDermott, 2013 BCSC 534
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 21, 2013
    ...is the appropriate remedy in this case, Ms. Harrington has referred me to Sawridge First Nation v. Congress of Aboriginal Peoples , 2007 FC 657, which provides a correct statement of the law. In that case, after considering several authorities, the court summarized the general principles re......
  • Sawridge Indian Band v. Canada, 2009 FCA 123
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • April 21, 2009
    ...failed to comply with will-say rules set by the court giving rise to allegations of trial by ambush. The plaintiffs moved for a mistrial (307 F.T.R. 163). The court refused and ordered the plaintiffs to comply with the will-say rules or have their witnesses struck. Rather than submit to the......
  • Padda v. Lalli, 2020 BCSC 1272
    • Canada
    • Supreme Court of British Columbia (Canada)
    • February 4, 2020
    ...procedural tool to ensure fairness, efficiency, and preparedness and to prevent ambush at trial", citing Sawridge Band v. Canada, 2007 FC 657. With regard to their content, Mr. Justice Weatherill said they must provide a summary of the substance of a witness's evidence, citing Ton......
  • Request a trial to view additional results
11 cases
  • McDermott v. McDermott, 2013 BCSC 534
    • Canada
    • Supreme Court of British Columbia (Canada)
    • March 21, 2013
    ...is the appropriate remedy in this case, Ms. Harrington has referred me to Sawridge First Nation v. Congress of Aboriginal Peoples , 2007 FC 657, which provides a correct statement of the law. In that case, after considering several authorities, the court summarized the general principles re......
  • Sawridge Indian Band v. Canada, 2009 FCA 123
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • April 21, 2009
    ...failed to comply with will-say rules set by the court giving rise to allegations of trial by ambush. The plaintiffs moved for a mistrial (307 F.T.R. 163). The court refused and ordered the plaintiffs to comply with the will-say rules or have their witnesses struck. Rather than submit to the......
  • Padda v. Lalli, 2020 BCSC 1272
    • Canada
    • Supreme Court of British Columbia (Canada)
    • February 4, 2020
    ...procedural tool to ensure fairness, efficiency, and preparedness and to prevent ambush at trial", citing Sawridge Band v. Canada, 2007 FC 657. With regard to their content, Mr. Justice Weatherill said they must provide a summary of the substance of a witness's evidence, citing Ton......
  • Nova Scotia Power Inc. v. AMCI Export Corp., 2009 NSSC 62
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • October 23, 2008
    ...(S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 29]. Sawridge Indian Band v. Canada (2007), 307 F.T.R. 163; 2007 FC 657, refd to. [para. David Coles, Q.C., for the plaintiff with Rebecca Hiltz-LeBlanc; Craig Garson, Q.C., for the defendant. This ......
  • Request a trial to view additional results
1 books & journal articles

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