Judgments

[1994] 1 F.C. 425

T-624-87

Montana Band, Chief Leo Cattleman, Marvin Buffalo, Rema Rabbit, Carl Rabbit and Darrell Strongman, Councillors of the Montana Band, suing on their own behalf and on behalf of the members of the Montana Band of Indians, Samson Band, Chief Victor Buffalo, Larron Northwest, Roland Littlepoplar, Dolphus Buffalo, Frank Buffalo, Raymond Lightning, Stan Crane, Lawrence Saddleback, Todd (Chester) Buffalo, Arnupp Klouis, Lester B. Nepoose, Jim Omeasoo and Robert Sampy, Councillors of the Samson Band, suing on their own behalf and on behalf of the members of the Samson Band of Indians, Ermineskin Band, Chief Eddie Littlechild and Ken Cutarm, Gerry Ermineskin, John Ermineskin, Lester Fraynn, Brian Lee, Gordon Lee, Arthur Littlechild, Richard Littlechild, Emily Minde, Lawrence Rattlesnake, Curtis Ermineskin and Maurice Wolfe, Councillors of the Ermineskin Band, suing on their own behalf and on behalf of the members of the Ermineskin Band of Indians, Louis Bull Band, Chief Simon Threefingers, Harrison Bull, Stan Deschamps, Winnie Bull, George Deschamps, Jerry Moonais, Henry Raine and Herman Roasting, Councillors of the Louis Bull Band, suing on their own behalf and on behalf of the members of the Louis Bull Band of Indians (Plaintiffs)

v.

Her Majesty the Queen (Defendant)

Indexed as: Montana Band v. Canada (T.D.)

Trial Division, Strayer J.—Calgary, September 1; Ottawa, September 9, 1993.

Evidence — Judicial notice — Application for directions as to admissibility of 15 historical treatises on history of Canadian Prairies and Plains Cree or other Canadian Indians — Plaintiffs wanting treatises available for Court to take judicial notice of matters referred to therein — As judicial notice may involve reliance on judge’s own research or knowledge, inappropriate to treat such knowledge or research as “admissible” evidence because would not form part of trial record — No ruling on “admissibility” per se because judicial notice used in lieu of proof — No precise directions as to which treatises, or portions thereof, can be considered by Court until portions to which counsel intending to refer identified, and particular facts of which Court can take judicial notice based on such passages explained — Criteria for taking judicial notice set out — Reference to passages of assistance in taking judicial notice of objectifiable events permissible — Should be to descriptions of events and actions, not to interpretation and characterization thereof — Interpretation of intentions and purposes of events or actions function of Court — Opinions not considered unless submitted in accordance with Federal Court Rules re: expert evidence and availability of witness for cross-examination — Assessment of reliability and weight of references and adjudication of contradictions among authors Court’s responsibility — No treatise conclusive on any particular fact.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Rules, C.R.C., c. 663.

Indian Act, R.S.C., 1985, c. I-5, s. 88.

International Covenant on Civil and Political Rights, Dec. 19, 1966, [1976] Can. T.S. No. 47.

Rupert’s Land and North-Western Territory Order, R.S.C., 1985, Appendix II, No. 9 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 3).

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Sioui, [1990] 1 S.C.R. 1025; (1990), 30 Q.A.C. 287; 70 D.L.R. (4th) 427; 56 C.C.C. (3d) 225; [1990] 3 C.N.L.R. 127; 109 N.R. 22.

CONSIDERED:

R. v. White and Bob (1964), 50 D.L.R. (2d) 613; 52 W.W.R. 193 (B.C.C.A.).

REFERRED TO:

Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313; (1973), 34 D.L.R. (3d) 145; [1973] 4 W.W.R. 1; R. v. Jones, [1986] 2 S.C.R. 284; (1986), 31 D.L.R. (4th) 569; [1986] 6 W.W.R. 577; 28 C.C.C. (3d) 513; 25 C.R.R. 63; 69 N.R. 241; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; (1991), 3 O.R. (3d) 511; 81 D.L.R. (4th) 545; 91 CLLC 14,029; 4 C.R.R. (2d) 193; 126 N.R. 161; 48 O.A.C. 241.

AUTHORS CITED

Sopinka, John et al. The Law of Evidence in Canada. Toronto: Butterworths, 1992.

REQUEST for a ruling as to “admissibility” of treatises on history of Canadian Prairies and Canadian Indians in an action for declarations as to the meaning and effect of a certain nineteenth century Joint Address adopted by the Canadian Parliament and an Imperial Order in Council concerning Rupert’s Land. Directions given.

COUNSEL:

Thomas R. Berger for plaintiffs.

Duff F. Friesen, Q.C. and Geoffrey S. Lester for defendant.

SOLICITORS:

Berger & Nelson, Vancouver, for plaintiffs.

Deputy Attorney General of Canada for defendant.

The following are the directions rendered in English by

Strayer J.: By agreement at the opening of the trial in this case, argument was heard as to the use to be made of certain historical treatises. As counsel described it, I was asked to determine the “admissibility” of certain documents, namely fifteen specific historical treatises or portions of such treatises dealing with the history of the Canadian Prairies and of the Plains Cree Indians or other Indians in Canada. Argument was heard on this question and I indicated that I would give directions for the guidance of counsel in the preparation for the second part of the trial which has now been fixed for December 14 to 17, 1993.

In this action the plaintiffs seek declarations concerning the meaning and effect of certain resolutions and a joint address adopted by the Senate and House of Commons of Canada in May, 1869 and of an Imperial Order in Council concerning Rupert’s Land adopted in June, 1870 [Rupert’s Land and North-Western Territory Order, R.S.C., 1985, Appendix II, No. 9 (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 3)]. They also seek a declaration involving the interpretation and application of certain provisions of the International Covenant on Civil and Political Rights [Dec. 19, 1966, [1976] Can. T.S. No. 47] but the documents in question have no bearing on that declaration. There had been a dispute about the admissibility of what is referred to as “primary documents” but this was resolved before trial.

In my view what is involved with respect to these historical treatises is not a question of “admissibility” of evidence. It became clear during argument that the use which counsel for the plaintiffs wishes to make of these treatises is essentially to make them available to the Court for purposes of the Court taking judicial notice of certain matters referred to in these treatises. Counsel for the plaintiffs suggested that there may be some concept broader than “judicial notice”, perhaps “judicial knowledge” which is more appropriate to a public law case such as the present where there is in issue, inter alia, the contents and interpretation of the Constitution.

I am obliged to have close regard to, and apply, the principles followed by the Supreme Court of Canada in R. v. Sioui[1] where Lamer C.J. [at page 1049], under the rubric “Extrinsic Evidence” made reference to historic journals and a treatise, as well as primary documents to determine whether the parties to a document signed by General Murray in 1760 constituted a “treaty” within the contemplation of section 88 of the Indian Act [R.S.C., 1985, c. I-5]. His deliberations in this regard focussed essentially on whether the “parties”, namely General Murray and the Huron Indians, intended to enter into a “treaty”. At page 1050 the Chief Justice notes that the “admissibility” of certain documents was contested. In the English version of his judgment he states:

I am of the view that all the documents to which I will refer, whether my attention was drawn to them by the intervener or as a result of my personal research, are documents of a historical nature which I am entitled to rely on pursuant to the concept of judicial knowledge. As Norris J.A. said in White and Bob (at p. 629):

The Court is entitled “to take judicial notice of the facts of history whether past or contemporaneous” as Lord du Parcq said in Monarch Steamship Co., Ld. v. Karlshamns Oljefabriker (A/B), [1949] A.C. 196 at p. 234, [1949] 1 All E.R. 1 at p. 20, and it is entitled to rely on its own historical knowledge and researches, Read v. Bishop of Lincoln, [1892] A.C. 644, Lord Halsbury, L.C., at pp. 652-4.

The documents I cite all enable the Court, in my view, to identify more accurately the historical context essential to the resolution of this case.

I believe it is fair to conclude from this passage that the Chief Justice was speaking simply of the concept of judicial notice although in one place the expression “judicial knowledge” appears. It may be noted that immediately after that he quotes from the White and Bob [R. v. White and Bob (1964), 50 D.L.R. (2d) 613 (B.C.C.A.)] case which provides authority on the matter of “judicial notice”. It also may be noted that the judgment of Lamer C.J. was written in French and in the original text the expression “connaissance judiciaire” is used both where in the English version the expression is translated as “judicial knowledge” and where it is translated as “judicial notice”. As “connaissance judiciaire” or “connaissance d’office” are the usual equivalents of “judicial notice”, I conclude it was this concept that was referred to throughout. In any event, as is obvious from the quoted passage, judicial notice can be based on the personal knowledge or researches of the judge provided the subject-matter is otherwise appropriate.

It appears to me that if the use of such documents is justified as assisting judicial notice, then strictly speaking such use does not involve “admissibility” because judicial notice is used in lieu of proof.[2] Further, as judges can in taking judicial notice rely on their own researches or their own knowledge[3] it would not seem appropriate to treat the judge’s own knowledge or researches as “admissible” evidence, in part because it would never form part of the official record of the trial as would normal evidence.

Therefore I cannot make a ruling on “admissibility” as such. Nor can I give precise directions as to which treatises, or which portions of treatises, can be considered by the Court until counsel identifies the portions to which he wishes to refer the Court, and explains the particular facts of which he considers the Court can take judicial notice on the basis of such passages. In principle, counsel is at liberty to refer to any of the treatises for such purposes, providing that he can demonstrate that the particular use in question falls within the ambit of judicial notice.

In this respect I will attempt to set out what I consider to be the relevant criteria for taking judicial notice.

As Sopinka, Lederman and Bryant state in their text, The Law of Evidence in Canada:[4]

Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons, or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by any party….

it appears to me that “notorious” facts are normally of a contemporary nature although there may be some exceptions to that; if relevant passages in any of these treatises describe notorious facts then reference may be made to them. The more likely use of such treatises will be to identify facts capable of immediate and accurate demonstration where the source is “of indisputable accuracy”.

In looking at uses which have been made of judicial notice in past cases dealing with the history of relations between government and Indians, it appears to me that the most authoritative case, namely Sioui, essentially involved reference to treatises and documents to establish objective facts, principally specific events and actions of various individuals and groups. In seeking the “historical context”, Lamer C.J. looked at various actions taken by the parties in order to deduce from such actions their intent with respect to the agreement reached with General Murray. It will be noted that he used for the most part contemporary journals or commentaries and official documents and only one modern treatise.

While I am therefore not ruling on “admissibility” of these fifteen treatises as such, I can indicate that counsel for the plaintiffs may refer to passages in these treatises where it can be demonstrated that they can assist the Court in taking judicial notice. In my view such references should be to descriptions of events and actions, and not primarily to passages interpreting and characterizing these events. In particular I am not prepared to consider tendentious or argumentative passages expressing opinions on essentially the issues which the Court itself must decide. If opinions are to be put forward then it must be by expert evidence submitted in accordance with the Rules of this Court [Federal Court Rules, C.R.C., c. 663] and with the witness being available for cross-examination. The treatises should be used essentially to assist the Court to take judicial notice of objectifiable events: their interpretation is for the Court with respect to the intentions and purposes of those events or actions. Further, it will be for the Court to assess the reliability and weight of any such references and to adjudicate on possible contradictions among the authors. No treatise can, of course, be considered conclusive on any particular fact. It will also be for the Court to consider the degree to which surrounding events should be relied on in the interpretation of legislative resolutions and statutory instruments as compared to the interpretation of a treaty (one of the issues involved in Sioui).

It is likely, of course, that elements which I consider the proper subject of judicial notice may be intermixed in the treatises with commentary that I do not so consider. If during the trial I do not insist on the excision of all such inappropriate commentary, this does not mean that I will not have the above distinctions in mind in taking judicial notice.

There is some reference in the written arguments of the defendant with respect to such treatises being used as a means of introducing documents not otherwise proved. In principle I agree that treatises cannot be used for this purpose but I am unable to make any ruling on this matter in the absence of some specific example. It is not clear to me at this point that any significant problem remains in this area, the parties having agreed on the admissibility of the primary documents.

On the basis of the foregoing the parties may conduct themselves accordingly and consider the extent to which expert or documentary evidence may be required.

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