Date: 20031006
Docket: A-630-02
Citation: 2003 FCA 370
Present: Sharlow J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant/Respondent
and
ROGER MISQUADIS, PETER OGDEN, MONA PERRY, DOROTHY
PHIPPS-WALKER AND CHIEF BOB CRAWFORD on his own behalf and
on behalf of the ARDOCH ALGONQUIN FIRST NATION AND
DARWIN LEWIS AND THE ABORIGINAL COUNCIL OF WINNIPEG INC.
Respondents/Applicants
and
CONGRESS OF ABORIGINAL PEOPLES
Intervener
REASONS FOR ORDER
[1] The Crown has appealed the judgment of the Federal Court, now reported as Ardoch Algonquin First Nation v. Canada (Attorney General) (T.D.), [2003] 2 F.C. 350, granting the Respondents' application for judicial review. The judge held that the manner in which Human Resources Development Canada (HRDC) implemented a program called the Aboriginal Human Resources Development Strategy (AHRDS) breached the rights of Roger Misquadis and the other Respondents under subsection 15(1) of the Canadian Charter of Rights and Freedoms, and that breach was not justified by section 1 of the Charter.
[2] Congress of Aboriginal Peoples has been granted leave to intervene in the appeal, on condition that "no new issue will be argued that was not raised in first instance and that no new issue raised will require the introduction of fresh evidence" (order of Desjardins J.A. dated May 14, 2001). Congress of Aboriginal Peoples has filed its memorandum of fact and law.
[3] Before me is a motion by the Crown to strike out the memorandum of Congress of Aboriginal Peoples on the basis that it breaches the conditions of the intervention by raising new issues and raising issues that require consideration of new evidence.
[4] The points in issue in the appeal, according to the Crown's Memorandum, are (1) whether the judge made erroneous findings of fact in a perverse or capricious manner without regard to the evidence, (2) whether the judge erred in his application of subsection 15(1) of the Charter, (3) whether the judge erred in his application of section 1 of the Charter, and (4) whether the remedy ordered by the judge is one that cannot practically be effected. There is no cross-appeal by any of the Respondents, even though it appears that the remedy granted is not as broad as the Respondents had initially claimed.
[5] The Crown's complaints about the memorandum of Congress of Aboriginal Peoples as intervener fall into three categories. First, the Crown says that the memorandum argues for a broader remedy that is not being sought by the Respondents. Second, the Crown says that the memorandum raises issues that will require new evidence, such as the role of Congress of Aboriginal Peoples in the delivery of labour market programs under the AHRDS, the level of funding to Congress of Aboriginal Peoples under the AHRDS, and the extent of consultation with Congress of Aboriginal Peoples prior to implementing the AHRDS. Third, the Crown says that Congress of Aboriginal Peoples is relying on evidence that is not in the record. I will deal with each of these points in turn.
Remedy
[6] Congress of Aboriginal Peoples is arguing for a different and broader remedy than the remedy granted by the judge, a remedy that the Respondents are not themselves seeking in the appeal. The role of intervener is to submit arguments in support of the position taken by a party, but not to seek a remedy in excess of the remedy being sought by the party the intervener is supporting. Although the Respondents sought a broader remedy in the first instance, they have not cross-appealed to reassert that claim. Therefore, the adequacy of the remedy is not in issue in the appeal, and it is not open to Congress of Aboriginal Peoples to argue that the remedy is inadequate.
Whether Congress of Aboriginal Peoples is raising new issues, or issues requiring
fresh evidence, with respect to its connection with the AHRDS
[7] The objections of the Crown under this head relate to paragraphs 10 through 15 of the memorandum of Congress of Aboriginal Peoples. These appear to be in response to the portion of the Crown's memorandum dealing with the application of subsection 15(1) of the Charter, in which the Crown cites certain agreements between Human Resources Development Canada and Congress of Aboriginal Peoples under the AHRDS as evidence that Human Resources Development Canada has recognized and accommodated urban and off-reserve Aboriginal people.
[8] Congress of Aboriginal Peoples argues, in paragraphs 10 to 15 of its memorandum, against the Crown's reliance on AHRDS funding to Congress of Aboriginal Peoples to support its defence of the constitutionality of the AHRDS, because the funding received by Congress of Aboriginal Peoples represents only $11 million of the total $1.6 billion available (those figures are apparently in the record). Congress of Aboriginal Peoples characterizes the funding it has received as "small" and its role in the delivery of labour market training to urban Aboriginal people as "limited".
[9] The Crown submits that the argument of Congress of Aboriginal Peoples on this point is outside the terms of the intervention order because the Crown will require fresh evidence to refute it, namely, evidence of AHRDS funding to other affiliates. The Crown says that evidence was not introduced in the first instance because it was not available or was not relevant to the application. I am not persuaded that the submissions of Congress of Aboriginal Peoples on this point require the introduction of fresh evidence. It is not self-evident that fresh evidence is required, and the Crown's assertion that fresh evidence would be required is not supported by any affidavit evidence.
[10] The Crown also suggests that the memorandum of Congress of Aboriginal Peoples raises issues as to the nature, degree, purpose and extent of Canada's consultations with Congress of Aboriginal Peoples with respect to AHRDS. I do not read the memorandum of Congress of Aboriginal Peoples as saying that. Paragraph 13 of the memorandum of Congress of Aboriginal Peoples quotes paragraph 42 of the Judge's reasons that refer to those consultations, but without making any particular point about the consultations.
[11] In my view, paragraphs 10 to 15 of the memorandum of Congress of Aboriginal Peoples do not breach the intervention order.
Reliance by Congress of Aboriginal Peoples on evidence that is not in the record
[12] The Crown says that Congress of Aboriginal Peoples has breached the terms of the intervention order by citing in its memorandum portions of the Report of the Royal Commission on Aboriginal Peoples that are not in the record and statements contained in current websites, only portions of which are contained in the record.
[13] Congress of Aboriginal Peoples is relying on portions of the Royal Commission Report that are not in the record (paragraph 55, 72 and 73 of its memorandum). However, the record contains numerous references to other portions of the Royal Commission Report, including passages within the same chapters as those to which Congress of Aboriginal Peoples refers in its memorandum.
[14] It is often unclear, in the case of an official government publication like the Royal Commission Report, whether it ought to be treated as evidence or as an authority. Factual statements in such reports often fall into the middle ground, and are often accepted on the basis that a court may properly take judicial notice of them.
[15] The Crown has submitted no evidence in support of its submission that fresh evidence will be required to "interpret" the portions of the Royal Commission Report to which Congress of Aboriginal Peoples refers. In my view, it would not be appropriate to strike any part of paragraphs 55, 72 and 73 of the memorandum of Congress of Aboriginal Peoples merely because of the references to the Royal Commission Report. It is for the panel hearing the appeal to determine what weight, if any, to put on those references.
[16] Website material, on the other hand, is generally not acceptable on any theory of judicial notice. I see no justification for permitting Congress of Aboriginal Peoples to refer to fresh evidence in the form of website material that is not part of the record.
Disposition of the Motion
[17] As indicated above, the Crown is correct to say that the memorandum of Congress of Aboriginal Peoples breaches the terms of the intervention in certain respects. However, there are not as many breaches as the Crown claims, and the breaches that exist are not so egregious as to justify striking the entire memorandum. It is sufficient to strike the following portions of the memorandum of Congress of Aboriginal Peoples:
(a) the last sentence of paragraph 5,
(b) the last sentence of paragraph 70,
©) the quotation at the end of paragraph 70,
(d) paragraphs 112 to 120, inclusive,
(e) everything in paragraph 121 after the words "CAP asks that this appeal be dismissed".
[18] As success was divided, the parties will bear their own costs of this motion.
(s) "K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-630-02
STYLE OF CAUSE: The Attorney General of Canada and Roger Misquadis, Peter Ogden, Mona Perry, Dorothy Phipps-Walker and Chief Bob Crawford on his own behalf and on behalf of the Ardoch Algonquin First Nation and Darwin Lewis and the Aboriginal Council of Winnipeg Inc. and Congress of Aboriginal Peoples
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE SHARLOW
DATED: October 6, 2003
WRITTEN REPRESENTATIONS:
Mr. Michael H. Morris
Ms. Gail Sinclair
Toronto, Ontario FOR THE APPELLANT/RESPONDENT
Mr. Christopher M. Reid
Toronto, Ontario FOR THE RESPONDENTS ROGER MISQUADIS ET AL
Mr. Greg Tramley
Winnipeg, Manitoba FOR THE RESPONDENTS DARWIN LEWIS
AND THE ABORIGINAL COUNCIL OF WINNIPEG INC.
Mr. Joseph E. Magnet
Ottawa, Ontario
Mr. Mahmud Jamal
Mr. Vaso Maric
Toronto, Ontario FOR THE INTERVENER
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Department of Justice Canada
Ottawa, Ontario FOR THE APPELLANT/RESPONDENT
Mr.Christopher M. Reid
Toronto, Ontario FOR THE RESPONDENTS ROGER MISQUADIS ET AL
McCandless Tramley
Winnipeg, Manitoba FOR THE RESPONDENTS DARWIN LEWIS AND
THE ABORIGINAL COUNCIL OF WINNIPEG INC.
Mr. Joseph E. Magnet
Ottawa, Ontario
Osler, Hoskin & Harcourt
Toronto, Ontario FOR THE INTERVENER