Date: 20031204
Docket: T-2022-89
Citation: 2003 FC 1421
CALGARY, Alberta, Thursday, the 4th day of December, 2003.
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of the other members of the Samson Indian Nation and Band and THE SAMSON INDIAN BAND AND NATION,
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, and THE MINISTER OF FINANCE,
Defendants
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
Intervenors
- and -
EMILY STOYKA and SARA SCHUG
Intervenors
[1] The Plaintiffs, Chief Victor Buffalo acting on his own behalf and the Samson Indian Band and Nation, on the 3rd day of March, 2003, filed an application requesting the appearance of the present Prime Minister and the Minister of Indian and Northern Affairs as witnesses in the present case.
[2] The said application was contested by the Defendant Crown on the grounds that the present Prime Minister and Minister of Indian and Northern Affairs could not be subpoenaed as they, as Members of Parliament, enjoy parliamentary privilege and they have no relevant or admissible evidence to give.
[3] The hearing on the said application took 12 days. Judgment was issued on the 12th day of August, 2003 wherein the Court decided that it agreed with the submission of parliamentary privilege and further stated that the privilege exists during a Parliamentary Session and for 14 days after Parliament is prorogued or dissolved and for 14 days before Parliament is recalled. I did not decide whether the proposed witnesses had relevant and admissible evidence to present.
[4] As a result, the application to issue subpoenas pursuant to Rule 41 (4) of the Federal Court Rules was dismissed.
[5] Because of current events wherein Parliament is now prorogued, Samson First Nation now make a verbal application to call the present Prime Minister and present Minister of Indian Affairs and Northern Development as witnesses and again state that these two persons have relevant and admissible evidence to present.
[6] I allowed the previous affidavit evidence and submissions made to be again used for the present verbal application.
[7] After reading the affidavit of Florence Buffalo, sworn to on February 28, 2003, together with the attachments, and after taking into consideration the written and oral submissions made to me, and they have been extensive, I am satisfied that Samson First Nation should be permitted to call the present Prime Minister as a witness in the present trial as I am satisfied he may have relevant and admissible evidence to give the Court that may help the Court decide some of the issues presently before the Court.
[8] The Prime Minister, like all other citizens in Canada, can be called to give evidence in a trial in Canada provided he has relevant and admissible evidence to give. When I say can be called to testify like all other citizens of Canada, I am not speaking of the issue of parliamentary privilege that attaches to a Member of the Canadian Parliament.
[9] As I have stated, that issue is now determined.
[10] The present Prime Minister held many, and what I would consider to be very influential positions, in the Government of Canada for the many years he has served as a member of the House of Commons. If my memory serves me correctly, he was Minister of Justice, Minister of Indian and Northern Affairs, and Minister of Finance.
[11] During his time as Minister of Indian and Northern Affairs he became an Honorary Chief of the Samson First Nation during the many years when issues relating to First Nations were being discussed and decided.
[12] He was, I believe, instrumental in ensuring that Section 35 of the 1982 Constitution Act became part of the Canadian Constitution.
[13] As was stated by counsel for Samson, the Prime Minister's name appears on numerous documents that are relevant in the present case.
[14] Therefore, I am satisfied that the present Prime Minister should appear as a witness to relate to the Court all relevant facts in order to aid the Court to render justice to the parties.
[15] I do wish to add the following.
[16] I will not permit questions that indicate that a party is going on a fishing expedition. Any question put to the witness must be of a nature that can solicit facts relevant to the issues before the Court.
[17] I will also not permit counsel to engage in a political debate with a witness. As I have previously decided to refuse the expert report of Mr. James Youngblood Henderson relating to the report of the Royal Commission on Aboriginal Peoples (R.C.A.P.), as that was a political debate, I will not allow a political debate by counsel and a witness.
[18] I agree with part of the submission made by Crown counsel with regard to the affidavit of Ms. Florence Buffalo. It is, to say the least, most inadequate as is easily seen from reading the cross-examination of Ms. Buffalo.
[19] Nevertheless, I am, as I have stated, satisfied that because of the Prime Minister's knowledge and experience in dealing with aboriginal matters, he will be helpful to the Court.
[20] Counsel for the Crown can, if he is of the opinion that the questions being put to the present Prime Minister are "illegal" or are "a political debate", object.
[21] With regard to the issuance of a subpoena to the Honourable Robert D. Nault, the present Minister of Indian Affairs and Northern Development, I am of the opinion that the issuance of such a subpoena would not be helpful to the Court in deciding the issues presently before the Court.
[22] The present Minister was not the Minister of Indian Affairs and Northern Development when the present Statement of Claim was first issued. Thus all, and if not all, certainly most, of the relevant facts leading to the present litigation were known before Mr. Nault became Minister of Indian and Northern Affairs.
[23] I agree with the statement of counsel for the Crown when he states, "that Ministers should be required to testify when their evidence is truly necessary and not for improper purposes of advancing political agendas, engaging Ministers in debate or requiring their explanations or personal views of legal or policy issues".
[24] After reading the affidavit of Florence Buffalo and reading the cross-examination of Ms. Buffalo, I am satisfied that the main purpose for calling Minister Nault as a witness would be to engage the Minister in political debate. As I have stated, Minister Nault did not become Minister of Indian Affairs and Northern Development until well after the present litigation commenced.
[25] In conclusion, the present Prime Minister may be called as a witness in the present litigation subject to the prohibitions found in the judgment of August 12, 2003, relating to parliamentary privilege. Thus, leave is granted, pursuant to Rule 41 (4) (b) of the Federal Court Rules for the issuance of a subpoena.
[26] The present Minister of Indian and Northern Affairs cannot be subpoenaed to give evidence in the present litigation.
ORDER
For the Reasons given, the application for leave pursuant to
Rule 41 (4) (b) for the issuance of a subpoena to the Right Honourable Prime Minister Chrétien is allowed.
The application for issuance of a subpoena to the Honourable
Minister of Indian Affairs and Northern Development is denied.
"Max M. Teitelbaum"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2022-89
STYLE OF CAUSE: CHIEF VICTOR BUFFALO ET AL v. HER MAJESTY THE QUEEN ET AL
PLACE OF HEARING: CALGARY
DATE OF HEARING: DECEMBER 3, 2003
REASONS FOR ORDER & ORDER :THE HONOURABLE MR. JUSTICE TEITELBAUM
DATED: DECEMBER 4, 2003
APPEARANCES:
James O'Reilly
Ed Molstad, Q.C., FOR PLAINTIFF / APPLICANT
David Sharko
Marvin Storrow, Q.C.,
Joseph McArthur FOR PLAINTIFF T-1254-89
Allan Macleod, Q.C.,
Brenda Armitage FOR DEFENDANT/ RESPONDENT
Frank Foran, Q.C.,
Michael Marion FOR THE RIGHT HONOURABLE PRIME MINISTER CHRETIEN
SOLICITORS OF RECORD:
O'REILLY & ASSOCIÉS
PARLEE MCLAWS LLP FOR PLAINTIFF/APPLICANT
BLAKE, CASSELS & GRAYDON LLP FOR PLAINTIFF T-1254-89
MACLEOD DIXON LLP FOR DEFENDANT/ RESPONDENT
BORDEN LADNER GERVAIS LLP FOR THE RIGHT HONOURABLE PRIME MINISTER CHRETIEN