Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2008-03-07
Neutral citation
2008 FC 322
File numbers
T-66-86
Decision Content
Date: 20080307
Docket: T-66-86A
Citation: 2008 FC 322
Ottawa, Ontario, this 7th day of March, 2008
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
INTRODUCTION 4
THE FULL CONTEXT 12
The General Situation 12
Procedure, Not Merits 13
The Procedural Dispute Between the Parties 14
The Plaintiffs’ Preferred Procedure 19
Abuse Issues 21
Proving and Stating their Case 24
The Real Issue 24
Summary 27
TIMING AND OTHER CONCESSIONS 32
THE OFFERED EXPLANATION 38
Unprecedented 40
Impact 45
GROUNDS OF APPEAL 76
Apprehension of Bias 76
Avoidance of Trial Judge not a Necessity 77
Extensive Record 78
Conduct Issues 78
Conduct Issues and the Process of the Trial 79
The Real Problem 122
OUTSTANDING ISSUES 133
REASONS FOR JUDGMENT
INTRODUCTION
[1] On January 7, 2008, the Plaintiffs informed the Court that “the Plaintiffs shall not be calling any further evidence before your Lordship, and as a result we are closing our case.”
[2] This abrupt end to the Plaintiffs’ presentation of their case before the Court was preceded by a brief written notification to the Crown and the other participants of December 28, 2007, a copy of which was provided to the Court and is now marked as PL40.
[3] In that notification the Plaintiffs said that “after consideration of a number of factors, the Plaintiffs … have come to a decision during the past two days that they wish to proceed with an Appeal to the Federal Court of Appeal at this time.”
[4] The PL40 notification came at the end of a two-month adjournment granted at the Plaintiffs’ request on October 15, 2007, which they said was required to allow them to prepare their expert witnesses to give evidence at trial.
[5] It also came at the end of a difficult year of a severely disrupted trial that was, by and large, waylaid by one major procedural issue: the Plaintiffs’ attempts to avoid compliance with, and the consequences of, Court decisions and rulings that lay down the conditions under which all participants may call new lay witnesses and, in particular, the will-say disclosure requirements and their connection to evidence at trial that bind all participants. The will-say requirement was imposed by Justice Hugessen, the case management judge, on March 26, 2004, and, in various decisions and rulings, the Court has explained and established its significance for the calling of lay evidence at trial for all participants.
[6] The full impact upon the proceedings of the Plaintiffs’ non-compliance with, and repudiation of, the will-say rules finally became known on September 11, 2007, when, the Court ruled upon the Plaintiffs’ decision not to provide the Court with the reassurances of compliance with Court decisions on will-say disclosure which the Court had ordered on August 9, 2007. In effect, this amounted to a decision by the Plaintiffs not to retain or call their lay witnesses in accordance with the will-say rules so that those witnesses were either struck or remained struck in accordance with my August 9, 2007 decision.
[7] The Plaintiffs’ decision to close their case and proceed with an appeal also follows a significant period of additional preparation time that was extended to them before the trial finally commenced in January 2007. During that period of time, the Plaintiffs were given a further opportunity to examine their will-says against Court decisions and rulings and to bring forward any problems they might have in a timely manner.
[8] The granting of additional time to the Plaintiffs to ready themselves for trial followed approximately seven years of case management, under Justice Hugessen as case management judge, after these actions were returned by the Federal Court of Appeal for re-trial in 1997.
[9] So three years after the re-trial was originally scheduled to commence in January 2005 – years during which the Plaintiffs were given significant amounts of time to set their house in order so that the trial could be handled efficiently and free of major procedural disputes that have plagued these proceedings in the past –the Plaintiffs have now closed their case because, ostensibly at least, they have not been allowed by the Court to conduct these actions in ways that breach Court decisions and rulings regarding will-says, and in ways that are totally at odds with the representations and assurances that the Plaintiffs gave to the Court and the other participants that they accepted the rules related to will-says and wanted to proceed with these actions on the basis of those rules. Having been given large extensions of time to prepare for trial on the basis of representations that they understood and accepted the will-say rules that were devised to meet the particular exigencies of these actions, the Plaintiffs have now chosen not to proceed further after they were ordered to keep their assurances and respect Court orders and rulings regarding will-says.
[10] The Plaintiffs now say they agree with the Crown that, as a result of their decision to now close their case, the Court “should dismiss this action based upon their request as clearly there is no evidence before you in relation to this matter.”
[11] The Plaintiffs and the Crown agree that both actions should be dismissed because there is no evidence before the Court on either action, and the Crown, therefore, has no case to answer. This is indeed a strange conclusion to what has been a difficult and irregular trial process hampered by inconsistency, obfuscation and obstruction on the part of the Plaintiffs.
[12] The Plaintiffs say that their decision to close their case at this time is the result of “unprecedented actions on the part of the Court,” and they have put the Court on notice that they plan to lay reasonable apprehension of bias allegations before the Federal Court of Appeal.
[13] They have not, however, chosen to bring such allegations before the trial judge and, in bringing their case to an abrupt close in the way they have, they have not provided this Court with any cogent explanation or justification for their decision other than a bald and unsubstantiated assertion that the Court has prevented them “from adducing relevant, probative and corroborative evidence” and that this will have “a detrimental effect on the Plaintiffs’ ability to prove their case” and will also “prevent the Plaintiffs from adequately stating their case” and this “will result in an unfair trial.” Hence the Plaintiffs have offered as a reason for closing their case a position that does not accord with how the Plaintiffs’ lay witnesses came to be struck, and which their own actions have now ensured cannot be substantiated or objectively assessed.
[14] The Plaintiffs’ decision to close their case at this time deprives the Court of any means of assessing the impact that the loss of their lay witnesses might have upon the Plaintiffs’ ability to present their case before the Court, and this is even more troubling when it is born in mind that the decision not to retain or call lay witnesses in accordance with the will-say rules that bind all participants was made by the Plaintiffs themselves. The Court has made it clear in its rulings that the Plaintiffs were free to retain and call any or all of their lay witnesses provided they would confirm to the Court that they were doing so in accordance with the will-say rules. Having declined to retain or adduce evidence in accordance with the will-say rules, they are now saying that it was the Court who prevented them from leading that evidence. But the record shows that the striking of the Plaintiffs’ lay-witnesses was something that the Plaintiffs’ compliance with the will-say rules would have prevented.
[15] Having revealed themselves to be, again, in breach of the will-say disclosure requirements that bind all participants who wish to call lay witnesses, and having repudiated any connection between will-say disclosure and evidence at trial, the Plaintiffs were given a further opportunity to retain and call all of their lay witnesses. They elected not to confirm or meet the will-say disclosure requirements that are mandated by Court decisions and rulings which the Plaintiffs have themselves affirmed and used to their own advantage and, as a consequence, lost the right to retain and call their lay witnesses.
[16] The Court has not prevented the Plaintiffs from calling any, or all, of the lay witnesses they may wish to call. The Court has simply told the Plaintiffs that they cannot breach Court decisions and rulings that bind all participants and retain and call their lay witnesses regardless of this fact.
[17] Quite apart from the fact that the striking of their lay witnesses was something the Plaintiffs could have prevented through a simple notification of compliance in the ways directed by the Court, there is nothing before the Court that would allow it to assess in any objective way why the Plaintiffs have chosen to close their case at this time. The Plaintiffs have disrupted the trial process to such an extent through inconsistency, obfuscation and obstruction, that it is not possible for the Court to accept or rely upon the reasons they now put forward, or to ascertain and assess what impact the loss of their lay witnesses might have upon the case they wish to present to the Court.
[18] Obviously, the Plaintiffs’ decision to conclude their case at this point so early in the proceedings, and their notifying the Court about the apprehended bias allegations they plan to bring before the Federal Court of Appeal, bespeak a sense of grievance and a strong desire on the part of the Plaintiffs to terminate the present proceedings and start over afresh. However, the Plaintiffs are entirely responsible for any difficulties they are facing at this point in the proceedings. They are seeking a re-trial at a time when they are in breach of Court orders to produce standard-compliant will-says and, as a result of that breach, have found themselves constrained at trial in ways they do not wish to accept. But their problems are entirely of their own making and they have been given all the time and encouragement necessary to ensure it did not occur. They seek to blame others for their own breaches of Court decisions and rulings and their failure to keep their earlier commitments to the court and the other participants.
[19] In bringing their case to a close at this time, the Plaintiffs have not provided any explanation for their earlier decision not to retain or call their lay witnesses in accordance with the will-say rules, and they have left the Court with no means of assessing whether, indeed, the exclusion of lay witnesses has deprived them of “relevant, probative and corroborative evidence.” This is significant because the Plaintiffs’ earlier obstructed the Court’s attempts to obtain objective and material information that would have allowed it to assess the Plaintiffs’ assertion that the Court had foreclosed on the Plaintiffs’ ability to adequately state their case, and the Plaintiffs defied a Court direction that required them to provide such information.
[20] Consequently, at this point in the proceedings, the Court has no consistent and cogent explanation, and certainly no substantiated rationale, that can be relied upon as to why the Plaintiffs would elect to lose their lay witnesses rather than calling them in accordance with the will-say rules, or what, indeed, should be made of their latest assertion that the loss of those witnesses means the loss of relevant, probative and corroborative evidence that impacts in any material way the case they want to present to the Court.
[21] The decision not to proceed further with their case is a decision made by the Plaintiffs. The Court has refused a request from the Crown to dismiss the Plaintiffs’ actions for abuse of process and has asked the Plaintiffs to proceed with calling their evidence in a non-abusive way so that the Court can hear the merits of the case they wish to present. The decision not to proceed in this fashion is one that the Plaintiffs, and the Plaintiffs alone, have made. On August 9, 2007, the Court ordered the Plaintiffs to proceed as follows:
12. Subject to satisfying the Court concerning the compliance of their will-says as indicated, the Plaintiffs will proceed to call their witnesses or conclude their case and shall conduct the balance of the trial in accordance with all relevant Court decisions, findings, rulings, and orders and directions made to date and will desist from the conduct that the Court has identified as abusive.
[22] As these words make clear, the Court wanted to retain the Plaintiffs’ lay evidence and hear their remaining lay witnesses. All the Plaintiffs had to do was confirm compliance with the will-say disclosure requirements in the way requested by the Court and proceed to call their witnesses.
[23] Following this order, the Plaintiffs chose not to provide the reassurances the Court ordered regarding the compliance of their will-says with previous Court decisions and rulings, and they chose, instead, in their response to continue to conduct the trial in an abusive manner. Satisfying the Court concerning compliance would have preserved all of the Plaintiffs’ witnesses called to date and would have allowed them to call any future lay witnesses they wanted to call in accordance with the will-say rules.
[24] The Plaintiffs’ decision not to retain or call their lay witnesses in accordance with the will-say rules, and their subsequent decision to close their case and to ask the Court to dismiss their actions because there is no evidence before me upon which I could reach a conclusion favourable to the Plaintiffs, require a context that the Plaintiffs have not provided.
THE FULL CONTEXT
The General Situation
[25] It is extremely important to place the Plaintiffs’ decision to close their case in its full context. That context reveals that the Court has not, in fact, merely struck the Plaintiffs’ lay witnesses as they now allege. The Court has permitted the Plaintiffs to retain and call any or all of their lay witnesses, but it has told them they must do so in a non-abusive way and in accordance with the will-say rules established in these proceedings for the lay witnesses of all participants. Those will-say rules are laid down in Court decisions and rulings that the Plaintiffs have not successfully challenged. The rules have also been confirmed earlier in the proceedings by the Plaintiffs themselves, and they have been used by the Plaintiffs at trial to exclude the evidence of another participant that the Plaintiffs did not want on the record. Notwithstanding such earlier confirmation and use of the will-say rules, the Plaintiffs have elected not to retain and/or call any of their lay witnesses under those rules.
[26] The Plaintiffs’ inconsistent position on the use of will-says at trial, their failure to comply with the disclosure requirement, and their repudiation of any connection between will-say disclosure and evidence at trial, have been the subject of numerous motions, reasons, decisions and rulings made during the course of these proceedings.
[27] Those reasons, decisions and rulings do not need to be repeated here and they are part of the record that reveals how and why the Plaintiffs and the Crown now agree that these actions must be dismissed.
[28] Notwithstanding that record, however, the Plaintiffs’ decision to close their case in such a manner at this stage in the proceedings casts a significant light on what has occurred to date and places the Court’s previous reasons, decisions and rulings in a context that, until the decision to close their case was made, was not entirely understood.
Procedure, Not Merits
[29] It is also important to bear in mind that the Plaintiffs’ decision to close their case at this point means that the Court has had no opportunity to assess the merits of their claims. The points of contention between the parties have been entirely procedural in nature, and it is necessary to be precise about what those points are because they are extremely narrow.
[30] As the full record makes clear, the Plaintiffs have been free to lead any lay evidence they want to lead that is relevant to the pleadings, and the Plaintiffs have not contended in any convincing way that the will-say requirements were unachievable or prevented them from bringing forward the lay witnesses they needed to present their case. The real dispute has been over what function will-says should play at trial when lay evidence was actually called.
The Procedural Dispute Between the Parties
[31] The will-say requirements have only impacted evidence at trial in two ways:
First of all, in order to bring a new lay witness forward, the Plaintiffs, as well as all other participants, had to provide a synoptic account of what that witness will say that meets the standards of disclosure set by the Court and accepted by the Plaintiffs and the other participants. This disclosure requirement is contained in several Court decisions, and the Plaintiffs have continued to acknowledge it throughout the trial. They have argued and asserted that they have met this threshold requirement and that they have produced will-says for each of their lay witnesses that meet all disclosure requirements set by the Court. Unfortunately, the Plaintiffs have also revealed that, notwithstanding their “position” that they have met the threshold disclosure requirement, they have, in fact, not done so. But they have refused to explain or reveal why they have not met the threshold requirement set out in Court decisions and previously affirmed by the Plaintiffs. The Plaintiffs have revealed their breach of the disclosure requirement in several ways I have referred to in previous decisions. However, even the Plaintiffs’ own legal counsel has confirmed to the Court that the Plaintiffs have produced will-says that do not disclose what a witness will say in accordance with the synoptic standards. The Court has both asked and directed the Plaintiffs to explain the discrepancy between their “position” on disclosure compliance and what their legal counsel has confirmed; but they have simply refused to even address the issue. It is a blatant inconsistency they have chosen to leave, unexplained, on the record. As found in previous decisions and rulings, the best evidence available to the Court on the issue of will-say disclosure compliance by the Plaintiffs is that the Plaintiffs have not met the threshold requirement for any of their lay witnesses. Notwithstanding this breach, the Court has made it clear to the Plaintiffs that they can retain any or all lay witnesses already called, and call any future lay witnesses they wish to call, if they will treat the actual disclosure in their will-says as disclosure in accordance with the synoptic standards, so that the Crown can prepare for trial on that basis. In the end, the Plaintiffs have refused to either retain witnesses or call further witnesses on the basis that what their will-says disclose in accordance with the disclosure standards is what their witnesses will say for purposes of trial preparation and cross-examination by the Crown and the Interveners. Their stand on this issue remains entirely inconsistent. They insist on a “position” that they have met the synoptic standards of disclosure for all of their will-says, but they will not confirm that what their will-says disclose in accordance with the standards is what a witness will say. They merely insist, in the face of all evidence to the contrary (including advice to the Court by their own legal counsel), that the Court must accept without question a “position” that is simply untenable;
Secondly, the only other way that will-says have been relevant to evidence at trial has arisen in the context of ambush claims by either side. The Court’s rulings on ambush have been purely factual in nature and the whole record is available to either side to demonstrate to the Court whether, reasonably speaking and as a matter of common sense, real ambush has or has not occurred. The relevance of a will-say statement to a claim for ambush is inherent in the will-say requirement to produce will-says for any new lay witness who is called. The purpose of the will-say is to allow the other side to prepare for trial and to avoid ambush at trial that would prevent effective cross-examination. The Plaintiffs were the first party to argue and apply these principles in the case of an actual witness at trial. This occurred at the de bene esse hearing for Ms. Florence Peshee (an Intervener witness) when the Plaintiffs sought the Court’s protection from ambush and used Ms. Peshee’s will-say to demonstrate that ambush had occurred. In the course of doing so they forcefully asserted the general principal that is an inherent and inevitable part of the will-say rules devised to meet the particular exigencies of these actions: “The question for the Court is: Does the other side have notice of what it is you’re going to be dealing with? … . And the answer to that question is guided by the standard in the will-say. And it’s important that both sides have notice, the same kind of notice.” Notwithstanding their advocacy and espousal of the relationship between will-say disclosure and ambush at trial, the Plaintiffs eventually placed on the record an unequivocal repudiation of the same principle. At the Mistrial Motion, during which the Plaintiffs attempted to terminate the trial and return the proceedings to the discovery stage, they said they did not understand or accept the use of will-says at trial to exclude evidence. The only way that will-says have been used in this trial to exclude evidence is that, when ambush objections to evidence have been raised, the relevant will-say has been referred to in the context of the Court’s making a ruling on whether, as an issue of fact, ambush has really occurred.
[32] The Court has made it clear in its rulings that will-say disclosure is relevant to ambush determinations, although a will-say cannot be used as an automatic exclusionary rule of evidence. All ambush rulings have been dealt with on an objection by objection basis. And this is what the Plaintiffs have refused to accept, even though the procedure used by the Court is an inherent and inevitable consequence of the will-say disclosure rules devised for these proceedings. When all is said and done, this is the requirement (the connection between will-say disclosure and ambush at trial) that the Plaintiffs have repudiated for all of their lay witnesses. From the Court’s perspective, and as the record will show, this has been the gravamen of the procedural dispute between the parties to this point in the trial, and this is what has led, ostensibly, to the Plaintiffs’ latest decision to close their case at this point in the proceedings, although it is not possible for various reasons to tell whether this is the real basis of the decision because the Plaintiffs have attempted to terminate these proceedings before, and have expressed an ambivalence about presenting their case in the Federal Court. The Court has said that if the Plaintiffs wish to retain or call lay witnesses they must do so in accordance with the will-say rules. The Plaintiffs have revealed themselves to be in breach of the will-say rules, and they have repudiated those rules and refuse to either retain or call witnesses in a way that complies with those rules. That is the crux of the dispute over will-says.
[33] However, the matter does not end there because, in order to repudiate the will-say rules and to try and dissolve the connection between will-say disclosure and ambush rulings at trial, the Plaintiffs have engaged in repetitive abusive conduct that I have dealt with in previous reasons and orders. The present decision by the Plaintiffs to close their case now sheds further light upon that conduct.
[34] As far as the Court is concerned, however, notwithstanding that it has had to deal repeatedly with abuse of process issues, the major contentious issue between the parties to date has been the connection between will-say disclosure and ambush rulings at trial. In a series of decisions and rulings the Court has attempted to have the Plaintiffs respect the disclosure requirements established by previous decisions and rulings, and the inevitable connection between will-say disclosure and ambush rulings at trial, and to have the Plaintiffs remain faithful to the representations and assurances they gave to the Court and the other participants that they would work within the will-say rules and that they wanted “to proceed on that basis” and have the other participants comply in the same way. The Plaintiffs lost their lay witness because, in the end, they refused to keep this commitment and revealed themselves to be leading witnesses in breach of Court orders and rulings, and refused the further opportunity offered to them by the Court to both retain and call all of their witnesses in accordance with the will-say requirements. Having elected to lose their witnesses, the Plaintiffs have now abruptly closed their case in a way that leaves entirely unanswered some very serious questions about why the Plaintiffs would make such an election and then bring these proceedings to a sudden halt.
The Plaintiffs’ Preferred Procedure
[35] During my tenure as trial judge, the Plaintiffs have made two strenuous attempts to abort the proceeding and return to the pre-trial discovery stage in a way that would allow them to avoid years of decisions and rulings, in both the Federal Court and the Federal Court of Appeal, that have gone against them and that have constrained the ways in which they can conduct these proceedings. Their recent rejection of the will-say rules resulting in the loss of their lay witnesses and their subsequent decision to close their case have to be seen in the full context of that preferred procedure.
[36] The Plaintiffs’ 2005 Bias Motion was an attack upon the Federal Court as an institution and upon the ways that Justices Hugessen and Russell have handled these proceedings.
[37] In the case of my own role as trial judge, the Plaintiffs’ Bias Motion contained a personal attack, the full consequences of which I have yet to deal with. Those consequences had to be set aside to be dealt with at a later date because they were threatening to subvert the whole trial process and obliterate the rights of the parties, including the rights of Plaintiffs.
[38] I found the Bias Motion to be entirely groundless and unwarranted and I awarded enhanced costs against the Plaintiffs for various reasons, including the fact that the materials they submitted for that motion were intended to “intimidate the Court and subvert the judicial process itself in order to evade the consequences of adverse rulings and orders … .”
[39] After calling eight lay witnesses at trial, the Plaintiffs began a mistrial initiative that was also without merit. Its purpose, they eventually revealed, was to abort the trial and return the proceedings to the discovery stage. That mistrial initiative was premised upon the unsupportable and unsubstantiated accusation that the Court, notwithstanding its own statements to the contrary, was using the Plaintiffs’ will-says as “a legal ground for the exclusion of relevant admissible evidence.” When it was pointed out to them that such an assertion was entirely inconsistent with their “position” that they had produced will-says that met the synoptic disclosure standards, the Plaintiffs did not deny that it was inconsistent. They simply shifted ground and accused the Court of excluding evidence by using a “comprehensive and detailed” standard of disclosure for will-says to exclude their evidence. The Mistrial Motion was groundless, not only because it contained unsubstantiated allegations that were contrary to the record, but also because, if the Plaintiffs had indeed produced standard-compliant will-says as they alleged, then there could be no problem with the exclusion of evidence at trial as a result of ambush. The Plaintiffs were simply trying to blame others for problems that were of their own making.
[40] And now, after being given a further opportunity to both retain and call all of their lay witnesses if they would live by the spirit and intent of the will-say rules, as they had previously assured the Court and the other participants that they would, the Plaintiffs have both refused to retain and call witnesses in accordance with those rules and have closed their case in order to seek a re-trial of these actions from the Federal Court of Appeal.
[41] One thing, at least, is now clear as a result of the Plaintiffs’ mistrial initiative and their subsequent decision to close their case: they are obviously not interested in bringing before this Court the case that was disclosed in their will-says in accordance with the disclosure standards. But on January 7, 2005 that was precisely what the Plaintiffs assured the Court and the other participants that they did want to do, and the discrepancy between those two contrary positions has not been explained to the Court.
[42] Looked at in the context of these proceedings as a whole, the Plaintiffs’ cumulative decision to breach the disclosure requirements, repudiate the will-say rules, and close their case suggests that they are no longer interested in presenting the case that they assured the Court and the other participants they had presented through the service of will-say statements “in accordance with the way in which the Court has permitted the Plaintiffs to present their case … .” on January 7, 2005.
Abuse Issues
[43] The findings of abuse, although real enough, and the sequence of events that came about as a result of the Mistrial Motion and its aftermath, should not be allowed to confuse the real procedural bone of contention that has finally led the Plaintiffs, ostensibly at least, to close their case at this point in the proceedings.
[44] The Plaintiffs’ abusive conduct during trial has, primarily, been aimed at disconnecting will-say disclosure from evidence at trial when ambush is raised as an objection. By the time of the Mistrial Motion the Plaintiffs had made a full assessment of the ways in which will-say disclosure was coming into play when ambush was raised. That is why the Mistrial Motion contained an unequivocal repudiation of the relevance of will-say disclosure to ambush rulings at trial. However, abuse aside, the Plaintiffs have not adequately explained why will-says cannot, or should not, be referred to when ambush becomes an issue at trial. They have not explained why will-say statements are not relevant or are not connected to ambush issues.
[45] The Plaintiffs have not argued – or justified on any legal or logical basis – that ambush cannot be used as a ground for the exclusion of relevant evidence. The Plaintiffs have, in fact, used ambush themselves as a ground for excluding relevant evidence that they did not want on the record. Their position appears to be, rather, that there can be no connection between will-say disclosure and evidence at trial. Will-says have been connected to evidence at trial in these proceedings only when ambush has been raised as an objection which, as the Plaintiffs have themselves previously argued before the Court, is the appropriate way to use will-says.
[46] The Plaintiffs have not satisfactorily explained how will-says could possibly be disconnected from evidence in the context of an ambush ruling. As the Court has ruled, when ambush comes up, the whole record is available to either side to demonstrate whether or not real ambush has occurred. That record includes will-say statements.
[47] For the Plaintiffs to argue that there is no connection between will-say disclosure and the exclusion of relevant evidence at trial in these proceedings is to argue that, in effect, when the Crown raises ambush as a ground of exclusion, the Plaintiffs can refer the Court to the entire record to demonstrate that no real ambush has occurred but the Crown cannot refer to the relevant will-say to try and demonstrate that it has. The Plaintiffs have not satisfactorily explained how such a paradoxical imbalance could be justified or allowed to prevail in these proceedings. They have argued that disclosure throughout the record as a whole obviates ambush, but they have not explained why will-say disclosure standards have no connection to the ambush issue, and they have been given full opportunity by the Court to refer to the rest of the record to establish that no real ambush has occurred whenever a particular objection to evidence based upon ambush has arisen.
[48] The Plaintiffs are aware of the fallacy in their position even though they have declined to address it. Instead, they have sought to avoid the problem by asserting (but not attempting to substantiate) that the Court has used will-says “as a legal ground of exclusion of relevant admissible evidence” in order to foreclose on the Plaintiffs’ “opportunity to adequately state their case” and then, when the contradictory nature of that position was pointed out to them, they have resorted to the unsubstantiated accusation that the Court has, in some clandestine and undeclared way not reflected in its rulings, used a “comprehensive and detailed” standard of will-say disclosure to “foreclose” (later changed to “compromise”) the Plaintiffs ability to adequately state their case. At the same time, their own legal counsel has revealed the real cause of the Plaintiffs’ problems in his confirmation that, when the Plaintiffs’ will-says are examined against the synoptic standards set by the Court, there is a deficiency in terms of disclosing what witnesses are going to say.
Proving and Stating their Case
[49] At no time have the Plaintiffs alleged or demonstrated that the will-say rules prevent the Plaintiffs from proving their case, and, as the Court has pointed out in previous decisions and rulings, the connection between stating and proving their case in the context of these proceedings remains unexplained and unsubstantiated. In fact, the Plaintiffs’ recent allegations that the will-say rules, and Court rulings based upon them, have somehow “compromised” the Plaintiffs from adequately stating their case are inconsistent with the Plaintiffs’ earlier assurances that they had presented their case through their will-says and wanted to proceed on that basis.
[50] These unsubstantiated allegations have been used to conceal the basic fallacy at the centre of the Plaintiffs’ repudiation of the will-say rules (not disclosed until the trial) and their failure to explain how will-say disclosure can be disconnected from ambush considerations at trial.
[51] The Plaintiffs have also used abusive conduct, identified by the Court in previous decisions and rulings, to mask the fallacies of their position and their failure to explain or justify how or why will-say disclosure can be disconnected from ambush issues at trial.
The Real Issue
[52] Behind all of their tactics, however, the real issue remains unexplained and unjustified. That issue is the Plaintiffs’ breach of the disclosure requirements for will-says, their repudiation of any connection between will-say disclosure and ambush issues at trial, and the Plaintiffs’ refusal to proceed with the presentation of their case (both in terms of retaining witnesses already called, and calling further witnesses) in accordance with past decisions and rulings of the Court that establish the will-say rules.
[53] There is no doubt that the Plaintiffs could have continued these actions and called any or all of their lay witnesses in accordance with the will-say rules they had earlier confirmed. In fact, that is how matters were proceeding until the Plaintiffs, after calling eight lay witnesses, rose in Court and “unequivocally” repudiated any connection between will-say disclosure and evidence at trial, accused the Court of excluding evidence in a way that was not disclosed in the Court’s rulings, revealed that they were in breach of Court decisions and rulings regarding will-say disclosure, and then attempted to abort the trial by securing a mistrial. No one asked the Plaintiffs to take such drastic action. The Court declined to grant a mistrial and made it clear that the Plaintiffs could continue to retain and call their lay witnesses if they would do so in accordance with the will-say rules. The Plaintiffs declined to continue on that basis and now they have brought their case to a close without calling any further evidence at all.
[54] In 2004/2005, the Plaintiffs assured the Court and the other participants that they had produced will-says that met the disclosure standards and that, on the basis of those will-says, they had presented their case and wanted to proceed on this basis.
[55] In April 2007, the Plaintiffs rose in Court and announced, in effect, that on the basis of the same will-says they would not be able to state their case adequately if they were held to the will-say rules.
[56] The Plaintiffs’ will-says have not changed between 2004/2005 and 2007 except that those portions dealing with broad self-government claims have been excluded because the Court has found that broad self-government claims were not encompassed by the pleadings. So all that has changed is that broad self-government has been removed as an issue from the claims. The Plaintiffs have not referred to this factor as having any bearing on their decision to repudiate the will-say rules and close their case. In fact, they have confirmed on the record that if the Court applies the will-say rules in the way it has applied them when dealing with ambush, this will not prevent the Plaintiffs from proving their case. And yet they have declined to retain or call lay witnesses on the basis of those rules.
[57] In September, 2007 the Plaintiffs declined to provide the reassurances of compliance ordered by the Court and retain lay witnesses already called, or call new lay witnesses, in accordance with the will-say rules which, back in 2004/2005, they said had allowed them to present their case in the way they wanted to proceed. The September 2007 decision has now been quickly followed in January 2008 by a decision by the Plaintiffs to close their case.
[58] At no time have the Plaintiffs offered an explanation as to how, or why, if the Plaintiffs had wanted to present the case outlined in their pleadings to the Court, they could not have done so on the basis of will-says which, as they assured the Court and the other participants in 2004/2005, presented their case in the way they wanted to proceed.
[59] In the absence of any such explanation, and as a result of other inconsistencies, obstruction and ambiguities referred to elsewhere, the Court cannot accept the reasons put forward by the Plaintiffs for closing their case at this time as either an explanation or substantiation for such a decision.
Summary
[60] On the basis of what the Plaintiffs have revealed or stated before the Court to date on the issue of will-says and their role in these proceedings, as well as what the Plaintiffs have refused to explain or reveal, the decision by the Plaintiffs to close their case at th