Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2007-06-19
Neutral citation
2007 FC 657
File numbers
T-66-86
Decision Content
Federal Court
CANADA
Cour fédérale
Date: 20070619
Docket: T-66-86
Citation: 2007 FC 657
Edmonton, Alberta, this 19th day of June, 2007
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
- and -
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
Docket: T-66-86-B
BETWEEN:
TSUU T=INA FIRST NATION
Plaintiff
- and -
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
Table of Contents
Page No.
THE MOTION……………………………………………… 5
THE RECORD……………………………………………… 6
THE POSITION OF THE PARTIES
The Plaintiffs 6
The Use of Will-Says at Trial……………………….. 7
The Peshee Hearing…………………………………. 7
Post Peshee ………………………………………….. 8
Compliant Will-Says………………………………… 8
Lessons from the Testimony of Elder Starlight……. 9
Conclusions about Rulings………………………….. 9
The Crown 11
General………………………………………………. 11
Plaintiffs’ Failure to Explain……………………….. 11
The Real Issue……………………………………….. 11
Inadequate Substantiation………………………….. 12
Opportunities to Lead Relevant Evidence…………. 12
Endorsement by Federal Court of Appeal…………. 13
Pre-Trial Decisions…………………………………… 13
Rulings to Date at Trial……………………………… 13
Resilement……………………………………………. 14
Crown’s Rights………………………………………. 14
REASONS 15
Introduction………………………………………….. 15
Rulings to Date – Guidance…………………………. 16
The Issue is Ambush Not Will-Says………………… 25
The Plaintiffs’ Predicament…………………………. 32
The Peshee Hearing…………………………………. 52
Other Remarks by the Plaintiffs……………………. 56
Post Peshee…………………………………………… 98
Imbalance Issues…………………………………….. 111
General………………………………………. 111
The Court’s Rulings to Date………………… 114
Advantage of the Crown…………………….. 117
Elder Starlight’s Evidence…………………… 122
CONCLUSIONS…………………………………………….. 131
THE JURISPRUDENCE ON MISTRIAL………………….. 134
General………………………………………………. 134
Mistrial and the Admissibility of Evidence………… 137
The Federal Jurisdiction……………………………. 138
Other Cases…………………………………………. 139
CONSEQUENCES…………………………………………. 152
ORDER……………………………………………………… 158
REASONS FOR ORDER AND ORDER
THE MOTION
[1] This somewhat extraordinary motion has arisen during the course of the trial and has a serious bearing upon the future of these proceedings.
[2] The Plaintiffs are asking the Court to declare a mistrial of both actions.
[3] The basis for the motion is an allegation by the Plaintiffs that the Court has foreclosed the Plaintiffs’ opportunity to adequately state their case and has made rulings regarding the admissibility of evidence that have rendered the trial unfair. There are several dimensions to this basic allegation but the central issues from the Plaintiffs’ perspective are that the Court has 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 my order of November 25, 2004 have been used as a legal ground for the exclusion of relevant, admissible evidence at trial. What is more, the Plaintiffs say that rulings made by the Court to this point in the trial show that the Crown has a “huge advantage” over the Plaintiffs because “the playing field is no longer level … .”
[4] The motion began in open Court as a request for guidance by the Plaintiffs. The Court heard representations from all participants and it was subsequently agreed by all concerned that the Court should treat the issues raised as a formal motion, review the relevant record, and provide a decision that might resolve the present impasse or move the proceedings back to case management on the basis of mistrial.
THE RECORD
[5] Because of the extraordinary way in which this motion arose, the Court does not have a full record to work with. The parties have asked the Court to base its decision upon:
The trial record and exhibits introduced to date;
The arguments of the participants on point given in open Court;
Background orders of the Court subsequent to Justice Hugessen’s Pre-Trial Order of March 26, 2004;
Related directions and transcripts relevant to the full context in which the Plaintiffs raise their concerns.
No affidavits have been submitted to support or refute the motion.
THE POSITION OF THE PARTIES
[6] For purposes of context and understanding, I am going to set out some of the more important arguments put forward by the parties. I do not intend this to be an exhaustive account of everything that was presented to me. I have considered all points raised by the parties as part of this decision, and I have also considered the brief contributions of the Interveners which I do not summarize here.
The Plaintiffs
[7] From the Plaintiffs’ perspective, the fundamental concerns that they cannot adequately make their case and that the trial has become unfair manifest themselves in several important ways:
The Use of Will-Says at Trial
The Plaintiffs say that the Court has created a situation at trial where the will-says produced by the Plaintiffs in accordance with Justice Hugessen’s order of March 26, 2004 and my order of November 25, 2004, have been used by the Crown and the Court to create “a situation where the will-says are, in fact, and have been established as a legal ground for the exclusion of relevant admissible evidences.” They say that will-says cannot be used in this way at trial and that, in the present proceedings, it was never intended that will-says should be used in this way, and the Plaintiffs do not understand and do not accept the use of will-says at trial to exclude relevant admissible evidence called by either party. They take the position that “the acceptance of a standard of will-says in pre-trial disclosure and the plaintiffs’ effort to comply with that standard is … unrelated to the admissibility of evidence at trial.” Because of the way the Court has used will-says, say the Plaintiffs, “this Court has foreclosed the Plaintiffs’ opportunity to adequately state their case.”
The Peshee Hearing
The Plaintiffs say that the rulings made by the Court and the discussion between counsel and the Court at the de bene esse hearing for Ms. Florence Peshee held December 13, 2004 in Calgary do not establish a precedent regarding the use of will-says that should be applicable at trial, and do not demonstrate an understanding by the Plaintiffs that will-says would be used at trial to exclude relevant evidence of their own witnesses. The Plaintiffs take the position that Ms. Peshee was a witness called by an Intervener, so that the same exclusionary rules should not apply to the Plaintiffs’ own witnesses. They also say that the objections raised by Mr. Healey (Plaintiffs’ counsel) to Ms. Peshee’s evidence were related solely to oral history issues, and that anything Mr. Healey may have said generally concerning the use of will-says at trial was directed at Intervener evidence and oral history issues and was not intended to encompass the evidence led through the Plaintiffs’ own witnesses.
Post Peshee
The Plaintiffs say that events and documentation referred to and produced in the period following the Peshee hearing and leading up to the commencement of the trial on January 24, 2007, show that, whatever may have happened at the Peshee hearing, the Plaintiffs made it clear they did not accept that will-says would be used to exclude their own evidence at trial, and that the Plaintiffs indicated to the Crown that the role and use of will-says would be dealt with at trial, and the Crown understood and accepted this.
Compliant Will-Says
The Plaintiffs have represented to the Court that the will-says prepared for their witnesses are fully compliant with all Court orders dealing with will-says.
Lessons from the Testimony of Elder Starlight
The Plaintiffs further say that, when the testimony given by Elder Bruce Starlight is viewed as a whole, it is clear that the Crown now has a “huge advantage”, and can, for example, roam over the whole Court record for purposes of cross-examination while the Plaintiffs are, in effect, confined to the will-says for purposes of examination-in-chief;
Conclusions About Rulings
The Plaintiffs have reviewed the Court’s admissibility rulings to date and say that the following rules now apply to the evidence of their lay witnesses:
And we understand, sir, that your rulings to date are as follows:
Number one, if the Crown objects to evidence of a witness called by the plaintiffs on the basis of non-disclosure, if the witness was not produced as a deponent for the plaintiffs at examinations for discovery, the Crown will only be required to show that the evidence is not described in a will-say of the witness and the brief description related to the witness in the letter of explanation, Exhibit E for Identification. If the evidence is not described in these two documents, the evidence will be inadmissible and excluded.
Two, if the Crown objects to the evidence of a witness called by the plaintiffs on the basis of non-disclosure, the Court will not consider any disclosure that has occurred as a result of, (a), the pleadings; (b), the examination for discovery, including answers to undertakings conducted by the Crown before the first trial, the examinations for discovery, including answers to undertakings and written interrogatories conducted by the Crown after the first trial and before this trial unless the witness was produced by the Plaintiffs as a deponent at examinations for discoveries; (c) transcripts of the evidence from the first trial and all of the evidence adduced, including evidence adduced by the plaintiffs through direct testimony and cross-examination by the Crown; (d), exhibits entered into evidence at the first trial; (e), the detailed oral history summary marked as Exhibit F for Identification; (f), all document production of the plaintiffs and the Crown; (g), expert reports that have been served by both the plaintiffs and the Crown; (h) the will-says of any other witness called or to be called by the plaintiffs; (i), the evidence of any witness who has already testified at this trial; (j), exhibits entered into evidence at this trial; and, (k), the information of the Crown from any other source.
Three, if the Crown objects to evidence of a witness called by the plaintiffs on the basis of non-disclosure, and the witness was a deponent for one of the plaintiffs at examinations for discovery, the Court will not consider the fact that the Crown had an opportunity to examine the witness, as the Court does not see (quoted): "...how the Crown, at discovery, could have been expected to know and prepare for the fact that if something was not disclosed in a will-say, they would be held to account for not eliciting that information at discovery." And that is a quotation from the remarks of the court that I referred to, sir, found at March 21 of 2007, page 19, lines 16 to 21.
Four, if the Crown objects to evidence of a witness called by the plaintiffs on the basis of non-disclosure, and the witness was a deponent for one of the plaintiffs at examination for discovery, and if the Crown examined the witness in relation to the subject matter of the evidence that is objected to, unless the examination by the Crown elicits the evidence objected to in a full and complete way, the evidence will be found to be inadmissible and excluded.
Five, if the Crown objects to the evidence of a witness called by the plaintiffs on the basis of non-disclosure, and the evidence was adduced as a result of a proper question being put to the witness to elicit evidence in a will-say, and the witness answer included evidence not described in the will-say of the witness or the letter of explanation, Exhibit E for Identification, the evidence will be found to be inadmissible and excluded.
Six, if the Crown objects to the evidence of a witness called by the plaintiffs on the basis of non-disclosure, the Court will not consider remedying any surprise or prejudice alleged on the part of the Crown by directing adjournments of the trial, nor will the Court consider the length of any adjournment or delay which has actually occurred between the calling of the plaintiffs' witnesses and the commencement of the Crown's cross-examination.
[8] The Plaintiffs say that they propose to conduct the balance of the trial “on the basis of this understanding of your rulings, and if we are incorrect in any way in relation to this understanding, we ask that you advise us of that.”
The Crown
1. General
The Crown’s position is that this motion discloses no new circumstances and no new concerns that would justify the Court overruling itself on previous evidentiary rulings it has made.
2. Plaintiffs’ Failure to Explain
The Crown also points out that if the Court has indeed excluded relevant evidence because it is not disclosed in a will-say, then the Plaintiffs have failed to explain why that relevant evidence was not disclosed in accordance with the standards. The Court cannot lose sight of the fact that the Plaintiffs were ordered to do this and, to the extent that this motion discloses that this was not done, it is simply an acknowledgement by the Plaintiffs that they have, yet again, breached a Court-ordered deadline.
3. The Real Issue
The Crown says this motion merely asks the Court to ignore will-say statements when considering admissibility issues. This is an option that the court has already rejected several times, going back to the Court’s November 25, 2005 decision when the Court first deemed inadmissible certain proposed evidence for failing to comply with the will-say standard of providing a summary of what witnesses were expected to say with sufficient detail to allow other participants to prepare for trial. That decision was upheld by the Federal Court of Appeal and leave to appeal to the Supreme Court of Canada was denied.
4. Inadequate Substantiation
The Crown is of the view that the positions advanced by the Plaintiffs in this motion are unsupported by any evidence or authority and are based upon misconceptions of what has actually occurred to date in these proceedings.
5. Opportunities to Lead Relevant Evidence
As regards disclosure and the leading of evidence, the Crown points out that any evidence that the Plaintiffs felt was important and wanted to lead could, and should, have been disclosed in their will-ways. The whole pre-trial record was available to the Plaintiffs and they were free to include any and all matters they thought were necessary to make their case. In fact, they were not just free to do so, they were ordered to do so by the Court, and no explanation has ever been provided as to why the Plaintiffs did not disclose in their will-says evidence that was relevant and material to their case. In addition to the materials from the pre-trial record referred to by the Plaintiffs, the Plaintiffs also had access to the witnesses themselves, as well as all oral histories and their sources.These areas were not available to the Crown.
The Crown says that evidence has not been excluded in the ways that the Plaintiffs suggest. It is for the Crown to object to evidence that it sees as not having been disclosed, or discovered upon when a deponent is called, and the Plaintiffs have been given an opportunity to respond fully to the Crown’s objections. There is no additional onus on the Plaintiffs as they elicit testimony to show where it has been disclosed.
6. Endorsement by Federal Court of Appeal
The Crown points out that the Federal Court of Appeal has already commented upon the fairness of excluding evidence in the way it has been excluded in these proceedings.
7. Pre-Trial Decisions
The Crown further says that various pre-trial decisions by this Court also support what has occurred at trial concerning the exclusion of evidence. For example, the Court’s decision of December 7, 2006 that denied the Plaintiffs the right to simply renovate their will-says. There is really no difference between a proposal to renovate will-says shortly before the trial began and a proposal made at trial to disregard the will-say requirement and standards altogether and to allow witnesses to testify on any topic, except that the timing of allowing this at trial would be even more dismissive of the regime that has been set up by the Court to ensure effective preparation and planning for cross-examination.
8. Rulings to Date at Trial
As regards the implications of rulings to date, the Crown has its own views on what they indicate but points out that rulings really need to be considered on a case by case basis in the context of witnesses that are called when they propose to give evidence. The Crown says that an examination of the record shows that the Crown has no advantage when it comes to cross-examination and there is no unfairness, either with regard to any particular witness or with respect to how the system works. The will-say requirement set in motion by Justice Hugessen does not produce any unfairness. The Plaintiffs are, in fact, merely bemoaning the very nature of cross-examination, and it is a red-herring to equate the broad scope of cross-examination as some sort of disadvantage created by the will-say requirement. The will-says do not enhance the ability of the Crown on cross-examination to cover ground or topics not covered in direct.
9. Resilement
The Crown says that the Plaintiffs merely wish to now resile from the representations they made to the Court and the other participants that they accepted the will-say requirement and their will-says disclosed what their witnesses would say. In the end, the Plaintiffs are simply asking to be released from some of the disclosure requirements imposed upon them when the Court restored their right to call any lay witnesses.
10. Crown’s Rights
The Crown points out that it is entitled to the benefit of the most just, expeditious and least expensive determination of these proceedings as much as any other litigant. Rule 3 of the Federal Court Rules is undermined by the present motion which revisits rulings previously made by the Court under the guise of interpreting them without anything truly new having occurred in the interim.
REASONS
Introduction
[9] This trial has reached an impasse that must be resolved. The Plaintiffs say it has become unfair and they cannot adequately make their case. The Crown says the Plaintiffs are simply trying to avoid the disclosure requirements that are a condition to calling their witnesses. Both sides are frustrated and the proceedings have become deadlocked. In an attempt to bring some stability and clarity to the situation and to allow the parties to plan for the future of the trial, the Court has agreed to consider the Plaintiffs’ complaints as a motion on the basis of the agreed record. Many of the points raised have already been considered and decided by the Court, either in the form of rulings at trial or in motions brought before me by both parties (though usually the Crown) on matters related to the trial. Hence, the Court regards itself as bound by precedent and res judicata in some ways that will later be addressed.
[10] Reduced to basics the Plaintiffs’ principal argument is as follows:
The Plaintiffs have produced will-say statements for their witnesses that comply with all court-ordered requirements for will-says and disclose what each witness will say in accordance with the standards set by the Court;
The Court, through its rulings, has created an imbalance and has prevented the Plaintiffs from adequately making their case because the Court has adopted a legal rule at the urging of the Crown and the Interveners that excludes relevant evidence that has not been disclosed in a will-say in accordance with the Court-ordered standards.
In a nutshell, the Plaintiffs’ will-says disclose what their witnesses will say, but they cannot adequately make their case because the Court will only allow witnesses to say what the Plaintiffs have disclosed they will say in their will-says.
[11] The Court has not, in fact, adopted and applied such a legal rule of exclusion. But even if the Plaintiffs were correct in this regard, the motion as presented to the Court contains an unexplained contradiction. If the Plaintiffs’ will-says disclose what each witness will say in accordance with the standards set by the Court, then their evidence given at trial cannot be excluded in the way they say it has been, even by a legal rule that excludes evidence not disclosed in a will-say in accordance with those standards.
[12] So, on the basis of the information presented to the Court, it would appear that the Plaintiffs are saying they cannot adequately make their case if their witnesses say what their fully-compliant will-says say they will say.
[13] The Plaintiffs have not attempted to explain this contradiction even though its implications affect everything they place before the Court in this motion, and even though it has far-reaching consequences for the future of these proceedings.
Rulings to Date - Guidance
[14] As Trial Judge, I believe I am obliged to ensure the just, most expeditious and least expensive determination of these actions in accordance with the Federal Court Rules. As part of that obligation I believe I can provide a limited form of guidance from time to time, but I do not think I am in a position to, in effect, provide the kind of extrapolated opinion the Plaintiffs appear to want concerning what my rulings may mean for the rest of the trial.
[15] There are many reasons for this. The rulings speak for themselves and if I were now to provide the kind of gloss the Plaintiffs request of the Court, this might lead to inconsistency and confusion. The Court cannot confirm or deny positions the Plaintiffs may now wish to establish for any number of their own strategic purposes. Counsel must come to their own conclusions about the scope and significance of rulings and advise their clients accordingly.
[16] As a new ruling comes along, I may well consider the lessons of a former ruling and I believe I must aim for consistency, but circumstances may well vary so that the confirmation of any generalization put forward by the Plaintiffs at this juncture would be both dangerous and entirely misleading about what the Court is trying to do in each instance: i.e. decide what is just and fair on the merits and on the basis of the facts and arguments that counsel bring to each separate objection.
[17] The Court is not trying to make it difficult for Plaintiffs’ counsel on this issue. Plaintiffs’ counsel are now faced with decisions on what evidence to call given what has transpired to date, and given that, if matters proceed as they have, the Plaintiffs cannot adequately make their case. But this is the job of all counsel in all trials. What I think I can say is that the Plaintiffs’ six conclusions are based upon the inaccurate premise that the Court is using will-says as a legal ground to exclude relevant evidence. The truth of the matter is that the Court is dealing with objections based upon surprise and ambush raised by the Crown (as they have also been raised by the Plaintiffs) in relation to which the will-says produced by the Plaintiffs have so far played a significant role for the reasons given for each ruling. Because the legal and de facto justification for sustaining any relevant objection has been the acceptance of ambush in each case, the Court just cannot tell what is likely to happen in relation to future witnesses and what role the will-says will continue to play in relation to any future objection raised by the Crown.
[18] Because I asked the Crown to respond to the Plaintiffs’ allegations in this motion, the Crown has produced its own conclusions about the implications of my rulings to date.
[19] However, neither side accurately captures what the Court sees happening here. Both sides - quite naturally and for their own strategic purposes - would like to pin me down and remove the flexibility I believe I need to deal with each objection on its merits.
[20] The Court has made it very clear in its rulings that it refuses to use will-says as an exclusionary rule of evidence, and that just because something does not appear in a will-say does not mean it is inadmissible. The Court has made equally clear that each objection will be considered on a separate basis with a view to determining, as a matter of reasonableness and common sense, whether there is real surprise or ambush on a material point. In considering this issue, the Court has indicated that the whole record can be used by either side to argue for or against surprise. Behind the Plaintiffs latest assertions of unfairness lies the reality that, in looking at what each side has brought to each separate ruling, I have not found most of the Plaintiffs’ arguments persuasive, and that some materials (i.e. the will-says) have been more compelling indicators of reasonable surprise than others. But variants will no doubt arise from time to time (as they did with Elder Starlight) and the Court will have to exercise its discretion each time based upon what is argued and revealed.
[21] The significant role that the Plaintiffs lament has been played by the will-says to date in deciding whether real surprise and ambush have occurred in each instance can hardly be unexpected given the following:
The pre-trial disclosure problems and demands peculiar to these proceedings;
The particular court-crafted solutions (that included will-says) that were necessary to deal with those disclosure problems and demands in order to bring these actions to trial;
The extremely fractious history of these proceedings that required, first, the case management judge, Justice Hugessen, and then the trial judge to order that certain things be done (in the face of strong resistance from the Plaintiffs and breach of court orders), including the production of will-says that provided a level of disclosure that would allow for meaningful trial preparation and the avoidance of ambush at trial;
The reasons and orders of the Court that clearly instructed the Plaintiffs as to what they needed to produce in terms of will-say disclosure, and then gave them the time they said they needed to produce compliant will-says;
The Plaintiffs own representations and reassurances given to the Court and the other participants that their will-says meet the standards set by the Court and so reveal what each witness will actually say in accordance with those standards. Those reassurances persist during this motion;
The Plaintiffs’ own objections based upon ambush at the de bene esse hearing for Ms. Florence Peshee and their use of Ms. Peshee’s will-say to convince the Court that ambush had occurred. The Plaintiffs have strenuously insisted that what happened at the Peshee hearing is distinguishable and should not apply to their own evidence but (for reasons I will refer to later) the Court has found their arguments unconvincing and inconsistent with the clear wording of the record and basic common sense concerning reciprocal obligations in law suits;
General remarks made by the Plaintiffs, both at the Peshee hearing and elsewhere, on how will-says should be used in relation to evidence to be called at this trial by all participants in order to decide whether ambush has occurred.
I shall refer to and/or illustrate these factors throughout these reasons.
[22] For example, the Plaintiffs appear to expect the Court to accept that if they have told the Crown in a will-say that a witness will deal only with the areas of evidence set out in the will-say (the standards require disclosure of what a witness “will-say” in synoptic form) then the Crown must also be prepared – and should not be surprised – to cross-examine that witness in any area of evidence at trial, even if that evidence is not referred to in the will-say in accordance with the standards. The Plaintiffs have advanced various arguments as to why this should be so (usually based upon the pre-trial disclosure record as a whole), but they have not satisfactorily addressed the obvious point that if the Crown should be ready to cross-examine a witness on any area of evidence at all, then the will-says would have no purpose, and it would make no sense to submit witness-specific will-says that clearly represent that individual witnesses will deal with discrete areas of evidence. The Plaintiffs have also refused to acknowledge and deal with the obvious point that if they are allowed to represent to the Crown, through individual will-says, that a witness’ testimony will be limited to the areas indicated in accordance with the standards set by the Court, but then proceed to use that witness to testify in other undisclosed areas, the will-say may well become a means of creating ambush at trial rather than a way of avoiding it.
[23] The Plaintiffs now say that, in allowing the Crown to object to evidence on the basis of ambush at trial (something the Plaintiffs have done themselves) and in allowing the Crown to refer to a witness’ will-say to explain how ambush has occurred, the Court has made the will-says into a legal ground for the exclusion of evidence. But the Court has not done this; the Court has merely examined the arguments for and against ambush as each objection has arisen and has decided, on a reasonable and common-sense basis, whether there is real ambush. The Plaintiffs say that the acceptance of standards and the production of will-says in pre-trial disclosure should not be related to the admissibility of evidence at trial. They want to disconnect will-says from any admissibility determination. But they have not said the Crown cannot object on the basis of ambush at trail; they merely object to the will-says being used in the way they have to determine whether real ambush has occurred. For reasons already given by the Court, the Court is of the view that it can come as no surprise that, when ambush is alleged at trial, the will-says will play a prominent role, and this is because of the role that will-says have been assigned in these proceedings generally, and because of the problems related to pre-trial disclosure that will-says were intended to solve.
[24] It has also not escaped the Court’s notice that the witnesses called by the Plaintiffs to date have confirmed the basic scheme and impression that the will-says, viewed collectively, convey: i.e. that individual witnesses have different areas of knowledge and can only speak to specific topics.
[25] In this context, and given the role that will-says were intended to play in these proceedings, the Court is of the view that it was inevitable they would figure prominently in rulings related to ambush at trial. But that certainly does not mean that the Court has made will-says into a legal rule of exclusion. In fact, the Court has specifically refused to do this. By alleging otherwise in this motion, the Plaintiffs appear to be asserting that the Court does not mean what it says, or that the Court is not doing what it says it is doing. But the Plaintiffs have adduced no evidence to support this apparent questioning of the Court’s sincerity, and they don’t circumvent the explicit remarks made by the Court that contradict the point of view they are putting forward in this motion.
[26] A review of the record reveals to the Court that the Plaintiffs have long understood the connection between will-says and surprise at trial, and have also advocated the use of will-says to determine whether surprise has occurred. As I have pointed out elsewhere, all of this was demonstrated at the de bene esse hearing for Ms. Florence Peshee, but there are many other occasions when this has occurred that I will come to later.
[27] I mention these matters here only to indicate that the Plaintiffs’ present position that they somehow don’t understand how will-says have come to figure so prominently when ambush at trial becomes an issue is not a position the Court can accept.
[28] And quite apart from what the Plaintiffs now say they understand or don’t understand, the use of will-says to prevent ambush at trial is an inevitable consequence of those Court orders that set the standards required and compelled all participants, including the Plaintiffs, to produce will-says that comply with those standards. The Plaintiffs, by written motion, have actually requested and obtained the assistance of the Court in ensuring that the Crown and the Interveners produce compliant will-says.
[29] The fact that the Plaintiffs now wish to repudiate former positions they have taken (even after they have gained an advantage by using a will-say at trial to exclude evidence offered by another participant) and now want the Court to abandon the connection between ambush at trial and disclosure in will-says does not render these proceedings unfair or unbalanced. And this is particularly so given the fact that the Plaintiffs were allowed a significant extension of time to prepare for trial and to bring any pre-trial motions they thought necessary or desirable, including any motion they thought necessary to address the use and role of the will-says at trial. The Plaintiffs declined to bring any such motion and now expect that the obvious connection between will-says and ambush at trial can simply be abandoned at trial. This is just not possible from the Court’s perspective. The Plaintiffs have been given the time they said they needed to produce will-says that complied with the standards set by the Court; they have been given additional time to review the pre-trial situation following the appointment of new counsel and to bring any motions that new counsel may have wished to bring; and they have long understood, in the Court’s view, the connection between the will-says and ambush at trial. They can hardly now expect that, when ambush is alleged, the will-says will not come into play in a significant way.
[30] In the end, in deciding whether there has been real ambush at trial, the decision is a balance of principle and discretion and, as the Court has stated clearly, the matter will be looked at from the perspective of reasonableness and common sense. The Plaintiffs may certainly disagree with the Court concerning what is reasonable and what constitutes common sense in any particular instance. But that is simply a disagreement about a discretionary decision that the Court has to make each time an objection is raised. In such a situation one side is likely to feel that the Court has got it wrong. All other participants have had to produce will-says and the same discretionary decisions will have to be made when their evidence is called.
[31] The Plaintiffs now feel constrained by a system that they are, at least partially, responsible for and have used to their own advantage. But this does not make that system unfair or likely to lead to an unbalanced trial.
[32] So, in setting out their own conclusions and inviting the Court to confirm them, the Plaintiffs have characterized the basis of the Court’s rulings in a way that may well assist their present strategic objectives in this motion, but that characterization does not correspond to what the record reveals has actually occurred. There is no legal rule in these proceedings that excludes evidence because it does not appear in a will-say statement. And the Plaintiffs are inviting the Court to lay down general, fixed, and extrapolated conclusions in a situation where the Court has refused to make blanket rulings and has explained why, of necessity, this must be so in order to give the Court the flexibility it needs to decide objections on their merits on a reasonable and common sense basis after hearing the arguments and evidence that counsel can bring to bear each time an objection arises.
[33] The Plaintiffs are asking the Court to provide guidance based upon the assumption that everything the Plaintiffs allege in this motion is correct. The Court cannot, of course, accept that assumption.This does not mean that the Court cannot provide guidance to the Plaintiffs, but any such guidance must be based upon an accurate account of the record and the principles the Court has stated it is using to deal with ambush at trial.
The Issue is Ambush Not Will-Says
[34] My review of the relevant portions of the record reveals that the Plaintiffs’ motion mischaracterizes what is actually occurring as this trial unfolds. The Plaintiffs say that the Court has created a situation at trial where the will-says produced by the Plaintiffs have been used by the Crown and the Court to create a situation where will-says are, in fact, and have been established as a legal ground for the exclusion of relevant admissible evidence. The Plaintiffs assert that will-says cannot be used in this way at trail and that it was never intended that will-says would be used in this way, and the Plaintiffs say they do not understand and do not accept the use of will-says at trial to exclude relevant evidence called by either party. They take the position that the acceptance of a standard for will-says in pre-trial disclosure and the Plaintiffs’ effort to comply with that standard is unrelated to the admissibility of evidence at trial.
[35] This position remains little more than an unsubstantiated assertion made by the Plaintiffs to support the objectives of this motion. It is not supported by what is revealed by the record and, as I will discuss, it is a disavowal of positions the Plaintiffs have taken in the past. In addition, it is also an attempt to re-argue findings and rulings made right at the beginning of the trial with respect to objections raised to the evidence of Mr. Darrell Crowchild.
[36] As already pointed out, the assertion is grounded on an inaccurate characterization of the Court’s rulings to date. In order to make it the Plaintiffs must be taken to imply that the Court is not sincere when it says that will-says are not a legal exclusionary rule.
[37] As has happened in the past, the Court has been left to review the record itself in order to test the accuracy of the Plaintiffs assertions and to decide what that record reveals about the Court’s own pronouncements.
[38] What the Court has said on point is very clear and straightforward. I have said it in different ways a significant number of times now. I merely choose, for convenience, to quote what I said on my first ruling related to an objection raised to the evidence of Mr. Darrell Crowchild:
Fourthly, and I think this is very, very important, there must, however, be real ambush and a loss of opportunity to prepare to cross-examine. The will-says are not, per se, a legal ground for the exclusion of evidence. They were designed as a procedural tool to ensure fairness, efficiency, preparedness, and to prevent ambush at trial.
[39] I said many other things on that occasion that make or support the same point. And the Court has certainly practiced what it preached in making subsequent rulings.
[40] The Plaintiffs are entitled to disagree with the Court, of course. But I don’t believe they are entitled, in a motion as serious as this one and in which they accuse the Court of foreclosing on their ability to adequately make their case, to simply ignore what the Court has said and done on point without dealing with specifics.
[41] The Court has specifically and emphatically rejected the use of will-says as either a legal or de facto ground for the exclusion of relevant evidence at trial.
[42] But is the Court as good as its word?
[43] Well, my own review of the record concerning ambush rulings made to date reveals the following:
No use of will-says has been made at all unless either the Plaintiffs or the Crown have alle