T-4178-78
Joseph Apsassin, Chief of the Blueberry River
Indian Band, and Jerry Attachie, Chief of Doig
River Indian Band, on behalf of themselves and all
other members of the Doig River Indian Band, the
Blueberry River Indian Band and all present
descendants of the Beaver Band of Indians
(Plaintiffs)
v.
The Queen in right of Canada as represented by
the Department of Indian Affairs and Northern
Development and the Director of the Veterans
Land Act (Defendant)
INDEXED AS: APSASSIN V. CANADA (DEPARTMENT OF INDIAN
AFFAIRS AND NORTHERN DEVELOPMENT)
Trial Division, Addy J.—Vancouver, January
12-15, 20, 22, 30, February 2-6, 9-13, 16-19,
23-27, March 9-12; Ottawa, March 20, 1987.
Practice — Evidence — Hearsay rule and exceptions thereto
— Ruling on admissibility of documents in action on title to
former Indian reserve and mineral rights therein — Review of
general principles and case law on exceptions to hearsay rule
— Opinion evidence — Double hearsay — Evidence intro
duced for limited purpose — Indian Agents' reports —
Witnesses dead — Indian Agents' duty to report — Training
of person reporting — Checking of sources — Reliability —
Admissibility of Band Council Resolutions — Admissibility of
"Consents to Band Transfer", minutes of Band Council meet
ings — Admissibility of report based on information obtained
from interpreter.
This order dealing with the admissibility of evidence was
rendered in an action [[1988] 3 F.C. 20 (T.D.)] where the main
issue was the title to a former Indian reserve (I.R. 172) in
British Columbia and to the mineral rights under the reserve
land. The outcome depended on the following questions: (1) the
effects of the 1900 treaty pursuant to which the reserve was
created; (2) the effects of the surrender of the mineral rights in
1940; (3) the validity and effect of the surrender and transfer
of the reserve in 1945 and 1948 respectively. Most of the
relevant documents dated back to those years giving rise to
various issues of hearsay evidence.
The law governing exceptions to the hearsay rule could not
be accurately characterized as either clear, absolute or certain.
The Canadian view seems to lie somewhere between the broad
er extension of exceptions found in American case law and the
more rigid and conservative view of courts in the United
Kingdom. In Ares v. Venner, the Supreme Court of Canada
recognized the need for judicial initiative and for bringing the
law into line with modern society.
At common law, the general rule is that declarations or
statements are admissible when made by a deceased person, in
the ordinary course of duty, contemporaneously with the facts
stated and without motive to misrepresent them. The declara
tions or statements are generally required to be made to a third
person but mere notes have been admitted by English courts
and a business diary recording specific facts and figures for
subsequent reporting or formal recording should be admissible.
The duty to report has been extended beyond the strict duty to
do a particular act and to record or report it when done. As to
the element of contemporaneousness, the rule now is that the
statement must be made as soon as reasonably possible having
regard to the nature of what is being stated as well as all the
surrounding circumstances. As to reliability, where a statement
is made under a duty to an employer or superior and risk of
censure exists in the event of failure to do one's duty and report
accurately, the courts have considered this to be a very strong
reason to rely on the trustworthiness of the evidence.
Opinion evidence, which does not include a simple deduction
from known facts, cannot be accepted under this exception to
the hearsay rule. It has also been held that double hearsay was
admissible where both the person recording the information
and the informants are deceased. Where the authenticity of a
document is not disputed, the party wishing to introduce it for a
limited purpose only must say so when it is introduced, other
wise the other party is not bound by any such limited purpose.
In this case, the authors of the documents are deceased. With
regard to reporting letters written by Indian Agents to the
Department of Indian Affairs, there was no doubt that there
was a duty to report. The inclusion of matters not specifically
required to be in the report did not automatically make the
reports inadmissible. The lack of formal training on the part of
the person reporting does not render the report unacceptable in
evidence. There was evidence that the sources were checked by
the superior. Generally speaking, there was prima facie evi
dence that the Indian Agents' reports would be objective and, if
biased at all, this would be in favour of the Indians rather than
against them. However, each document submitted had to meet
the tests of sufficient reliability and disinterest to allow its
admission.
Reports made in 1941 and 1943 by an Inspector in the course
of his duties and containing information received from Indian
Agents or other sources should be admitted even if it was
double hearsay since those reports constitute the best and
possibly the only evidence now available. Although they should
be considered highly reliable, the conclusions of fact to be
gathered from them was subject to qualification or contradic
tion by other evidence.
Band Council Resolutions should be admitted in evidence.
They were intended as a record of what the Indians had
decided even if they did not describe properly how the decisions
were arrived at. It is not necessary to prove every word of a
resolution or of the minutes of a meeting to have the document
accepted in evidence pursuant to subsection 30(1) of the
Canada Evidence Act. In any event, the documents were admis
sible for all purposes as written statements against interest
made by parties to the action. That the Indians signed with an
"X" formal documents written in English did not mean that
they had not understood their substance.
The fact that the Indian Agents wrote reports on information
received through an interpreter did not disqualify the reports. It
is a type of double hearsay which should be admitted. Both
parties to the conversations must presumably have agreed in
each case to use the interpreter, who should therefore be
considered merely as an instrument or conduit, conveying the
words of each party. The trustworthiness required by this
exception to the hearsay rule did not demand that the court be
absolutely convinced that the evidence was totally devoid of
human error. It would be ludicrous to disallow such conversa
tions through interpreters since it would mean that the evidence
would be inadmissible even if the participants were alive and
attempting to testify viva voce as to these conversations.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30.
Interpretation Act, R.S.C. 1970, c. I-23, s. 11.
CASES JUDICIALLY CONSIDERED
APPLIED:
Ares v. Venner, [1970] S.C.R. 608; 14 D.L.R. (3d) 4.
REFERRED TO:
Myers v. Director of Public Prosecutions, [1965] A.C.
1001 (H.L.); Re Knapp's Settlement, [1952] 1 All E.R.
458 (Ch.D); Setak Computer Services Corporation Ltd.
v. Burroughs Business Machines Ltd. et al. (1977), 76
D.L.R. (3d) 641 (Ont. H.C.); R. v. Grimba and Wilder
(1977), 38 C.C.C. (2d) 469 (Co. Ct.); R. v. Mudie
(1974), 20 C.C.C. (2d) 262 (Ont. C.A.).
COUNSEL:
Leslie J. Pinder and Arthur Pape for
plaintiffs.
J. R. Haig, Q.C. for defendant.
SOLICITORS:
Mandell, Pinder & Ostrove, Vancouver and
Pape & Salter, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
ADDY J.: In order to allow counsel as much time
as possible to prepare their final arguments at the
conclusion of this trial with full knowledge of the
evidence to be considered in this case, I caused to
be forwarded last Monday, March 16, 1987, by
Faxcom to Vancouver my rulings as to admissibili
ty of certain documents. The parties had been
advised that, in view of the short time at my
disposal, reasons could not be furnished. The text
of the Faxcom message is annexed hereto as
Schedule "A".
On reflexion however, I have decided to issue
reasons as they might prove to be of some use to
counsel. General principles will be mentioned and
some of the circumstances peculiar to this case will
be touched upon, but it is not my intention to give
detailed reasons or to deal individually with each
of the 65 documents regarding which counsel
addressed their arguments, although I did examine
and consider each document individually.
At no time, in recent memory at least, could the
law governing exceptions to the hearsay rule have
been accurately characterized as either clear,
absolute or certain: it has constantly been re
examined and subjected to equivocal casuistic dis
tinctions arising from the unceasing search for
truth which preoccupies both lawyers and judges.
During this search they frequently feel unjustly
and unfairly hampered by precedent, artificial
rules and procedural barriers prescribing various
limits to exceptions to the hearsay rule and there
fore regularly seek to push beyond them. There do
exist however distinct limits beyond which the
search cannot extend, without seriously jeopardiz
ing that very goal and indeed, at times, compro
mising the twin principles of reasonableness and
fairness which must govern the whole judicial
process.
The testing of the accuracy of any statement of
a fact is, generally speaking, every bit as important
as the evidence itself. Since one of the most effec
tive tools for carrying out this task is the cross-
examination of the person purporting to have
direct knowledge of the matter, this means of
testing evidence must always be protected and
never circumvented or thwarted where it is reason
ably possible to test the evidence by employing it.
The substance of hearsay is not subject to effective
testing at trial by cross-examination. This together
with the absence of an oath are the two essential
reasons for the existence of the very strict rule
against that type of evidence and the equally strict
limitations imposed on the exceptions.
I have taken into consideration the cases includ
ing English and Australian cases submitted by
counsel for both parties, dealing with the judge-
made common law exceptions to the hearsay rule,
the effect of section 30 of the Canada Evidence
Act [R.S.C. 1970, c. E-10], certain similar provin
cial statutes and other statutes dealing with such
matters as contemporary business records. I have
also had the opportunity of considering several
other English and American cases as well as Wig-
more, Cross and Phipson on the subject.
One finds complete agreement on the philosoph
ic need for both the hearsay rule and for excep
tions to that rule. There is also substantial agree
ment on the general principles to be applied in
considering the exceptions. However, there do exist
some considerable differences of opinion as to how
those general principles are to be applied in detail
and how far they must extend. The Canadian view,
as usual, seems to lie somewhere between the
broader extension of exceptions found in American
jurisprudence and the more rigid and conservative
view of courts in the United Kingdom.
In the case of Ares v. Venner, [1970] S.C.R.
608; 14 D.L.R. (3d) 4, the Supreme Court of
Canada dealt with an entirely different kind of
exception to the hearsay rule, namely, the admis
sion of hospital records as prima facie proof with
out actually calling the nurses to testify although
they were available. It remains however quite
interesting insofar as the case at bar is concerned
in its treatment of the general principles regarding
hearsay and also because the Court recognized the
need for judicial initiative and for bringing the law
into line with modern society. Hall J. delivered the
judgment of the Court and referred to the difficul
ties in relation to that particular branch of the law
at pages 14 to 16 of the report. He chose to adopt
the minority view of the House of Lords in Myers
v. Director of Public Prosecutions, [1965] A.C.
1001, supporting judge-made extensions of the
exceptions. Hall J. concluded at pages 625-626
S.C.R.; 16 D.L.R.:
Although the views of Lords Donovan and Pearce are those
of the minority in Myers, I am of opinion that this Court
should adopt and follow the minority view rather than resort to
saying in effect: "This judge-made law needs to be restated to
meet modern conditions, but we must leave it to Parliament
and the ten legislatures to do the job.
At common law, declarations or statements are
admissible when made by a deceased person, in the
ordinary course of duty, contemporaneously with
the facts stated and without any possible motive to
misrepresent them. The original common law rule
that the witness had to be deceased has subse
quently been extended to include cases where
potential witnesses are unavailable. This has been
held to include the insanity of a witness, illness
effectively preventing attendance and also includes
absence from the jurisdiction, where the witness
refuses to attend and is not compellable. In the
United States, mercantile inconvenience regarding
the attendance of a witness has been successfully
invoked to allow an exception to the hearsay rule.
In the case at bar however there is no difficulty
regarding this basic rule as the witnesses are in
fact deceased.
The declarations or statements do not have to be
made to the employer or superior but generally are
required to be made to a third person. At times
however mere notes of the deceased have been
admitted by English courts (Re Knapp's Settle
ment, [1952] 1 All E.R. 458 (Ch.D.)). A personal
diary or a diary kept merely for one's personal
satisfaction would not be admissible but, in my
view, a business diary kept for the purpose of
recording specific facts and figures which the
writer would most probably later on be reporting
on or formally recording pursuant to his duties as
an employee would be admissible. It would seem
absolutely illogical to find that they were not so
admissible.
As to the duty itself, even in England, the
original rigid principle that the duty could not
consist of a general duty to report or record but
that the duty had to be specific in the sense that it
had to be a duty to do a particular act and to
record or report it when done, has since been
completely disregarded in several cases. However,
a mere custom not involving responsibility is not
sufficient and collateral matters which are not
related to the duty itself would not be admissible.
As to the contemporaneousness of the statement it
need not be made at the same time as the event or
immediately following it but must be made as soon
as reasonably possible having regard to the nature
of what is being stated as well as all the surround
ing circumstances.
Trustworthiness or reliability of the evidence is
a further element which the court must consider
before hearsay evidence can be admitted. It goes
almost without saying that the statements must
not have been made with any idea of litigation in
mind and that the person making it must have had
no personal interest whatsoever in not stating the
truth. He must have no motive to misrepresent.
The court, however, must go beyond that and
consider whether there is a positive, as opposed to
a negative, reason why the statement must in all
probability be reliable and true. Where it is made
under a duty to an employer or a superior and a
risk of censure exists in the event of failure to do
one's duty and report accurately, the courts have
considered this to be a very strong, if not the
strongest reason, to rely on the trustworthiness of
the evidence.
It is clear that opinion evidence cannot be
accepted under this exception to the hearsay rule.
There is, however, a distinct difference between
opinion evidence involving scientific or special
practical expertise or personal judgment and a
statement which is in effect a factual deduction or
a conclusion based on facts which do not involve
any particular matter where expert evidence would
have to be given, or which does not really involve a
judgment or a viewpoint as contrasted with a
simple deduction from known facts. A conclusion
of fact is admissible where it might be arrived at
as a matter of course, by any person with knowl
edge of the basic facts. For example, a statement
that "Beaver furs command a higher price this
year than they did last year" is not an opinion but
a conclusion of fact by a person who in the position
of the Indian Agent at Fort St. John would have
noticed how much furs were trading for during the
two years. Regarding documents admitted as proof
of contents, any portions which contain an opinion
as above defined will be ignored.
It has been held in certain cases that double
hearsay was admissible where both the person
recording the information and the informants are
deceased. There have also been cases such as
Setak Computer Services Corporation Ltd. v.
Burroughs Business Machines Ltd. et al. (1977),
76 D.L.R. (3d) 641 (Ont. H.C.); and R. v. Grimba
and Wilder (1977), 38 C.C.C. (2d) 469 (Co. Ct.),
where double hearsay was admitted even though
the witnesses apparently were still alive. These
involved regular business records. In the criminal
case of R. v. Mudie (1974), 20 C.C.C. (2d) 262
(Ont. C.A.), Gale C.J.O. of the Ontario Court of
Appeal with whom Kelly J.A. agreed indicated
that he would have allowed double hearsay in that
case had the provisions of section 30 of the Canada
Evidence Act been followed. This of course is
obiter but it is nevertheless of some value.
Hearsay, when admissible under any of these exceptions, is
not excluded when direct testimony of the same facts is also
available. Any objection on that ground would go to weight and
not admissibility. (Phipson On Evidence 1 1th Ed., p. 660)
Before leaving the general principles and the
jurisprudence I would like to state that where the
authenticity of a document is not disputed and a
party chooses to introduce it in evidence without
clearly indicating at that time that it is not intro
duced as proof of the facts mentioned therein, but
only for a specific collateral purpose such as the
proof of intention of the writer, the exhibit may be
relied upon subsequently by the opposite party as
evidence of the facts mentioned therein and it is
not open to the party who introduced it in the first
place to then claim, later on in the trial, that it was
in fact introduced for a limited purpose.
I shall now deal briefly with section 30 of the
Canada Evidence Act. Subsection 30(1) reads as
follows:
30. (I) Where oral evidence in respect of a matter would be
admissible in a legal proceeding, a record made in the usual
and ordinary course of business that contains information in
respect of that matter is admissible in evidence under this
section in the legal proceeding upon production of the record.
"Business" in subsection 30(12) is defined to
include any activity or operation by any depart
ment or branch of government. "Record" includes
among other things "any ... document, paper .. .
or other thing on which information is written,
recorded, stored or reproduced". This definition
would embrace such things as letters, reports, reso
lutions, handwritten or otherwise and of course
takes the matter far beyond mere book-keeping
entries or such things as formal hospital records
entered periodically. Subsection 30(11) in my view
is also quite important as it contains the following:
30....
(11) The provisions of this section shall be deemed to be in
addition to and not in derogation of
(b) any existing rule of law under which any record is
admissible in evidence or any matter may be proved.
This enactment preserves all the common law
rules as to admissibility and exceptions to the
hearsay rule.
In considering the jurisprudence and the text
books on evidence, care must be taken to distin
guish cases where specific legislation as opposed to
common law is being referred to as, at times, the
judges and the authors do not always clearly dis
tinguish whether their pronouncements and opin
ions refer to one or the other. Furthermore, care
must be taken to note the variations in wording
between the statutory provisions of the various
jurisdictions and those of the Canada Evidence
Act.
The whole of the provisions of section 30 must
of course be read with section 11 of the Interpre
tation Act [R.S.C. 1970, c. I-231 in mind. Section
11 reads as follows:
11. Every enactment shall be deemed remedial, and shall be
given such fair, large and liberal construction and interpreta
tion as best ensures the attainment of its objects.
I turn to the classes of documents to which the
plaintiffs have objected but before doing so I wish
to point out that in the case at bar, it is most
important to bear in mind that the documents
concerned originated from persons who are now
deceased. It is also of some importance to note that
the vast majority of the documents are of suffi
cient age that they could almost be termed histori
cal instruments. The surrender occurred in 1945
and we are now considering the documents the
great majority of which originated nearly a half a
century ago. Written reports of occurrences going
back 4 decades are in fact more likely to be
reliable and accurate than the memory of wit
nesses who might be testifying as to what was said
and done without referring to any such records.
In declaring that any document is admissible as
to truth of contents it will be considered by me
only as prima fade proof of the facts on which
counsel requesting that it be admitted has stated
that he will be relying.
With regard to the reporting letters written by
Galibois and others to the authorities of the
Department of Indian Affairs, there is no doubt in
my mind from the evidence presented, including
the general instructions to Indian Agents, that
there was a duty to report to the Department on
the condition of the Indians, of the reserves, etc. I
have already commented on the fact that the law
no longer requires that the duties specify the exact
items on which the report is to bear failing which
the evidence would be inadmissible. The mere fact
that some matters were left to the judgment of the
Indian Agents as to what should be included in
their reports, does not, in my view, prevent such
reports from being documents furnished in the
normal course of business pursuant to a duty to
report. The great variety of educational, social,
geographic and financial conditions existing within
the various Indian bands throughout the country
must be kept in mind. A stereotype form of report
is not required in order to render it admissible as
such. On the contrary, such a policy would, in the
case of Indian bands, not only be illogical but
might give a false picture of reality.
Counsel for the plaintiffs objected to the fact
that the Indian Agents had no formal training as
such. There is evidence that they did have a train
ing at conferences and seminars on the various
duties and that they gained experience in the field.
I am not prepared to hold that, failing some sort of
formal course of training, the facts mentioned in
the report by a person, whose duty is to report to a
superior, is not acceptable in evidence. Counsel for
the plaintiffs also argued that because there was
no correspondence regarding the checking of
sources by the superior, the sources were in fact
not checked. There is oral evidence however to the
effect that the sources would be checked by phone
or by meeting with the agents where there was any
doubt as to the accuracy of their report. Letters
although not addressed to a superior to whom it is
the writer's duty to report are admissible under
section 30 when addressed to a third party when
the deceased writer was fulfilling a duty to report
to that party, such as, in the case at bar, replying
to an inquiry whether or not the reservation was
for sale (Exhibit 311). The writer would no doubt
have been in serious trouble had he reported that it
was for sale when in fact it was not.
The question of reliability or accuracy is
undoubtedly important when considering the
admissibility of documents either as business
records or under section 30 or at common law. In
this regard, I find it somewhat strange, if not
contradictory, that counsel for the plaintiffs should
now argue most strenuously that the documents in
issue are not at all trustworthy and for that reason
are not to be allowed in as exhibits to establish the
truth of facts mentioned, after having introduced
as exhibits literally hundreds of documents of the
same nature, of the same vintage and from the
same sources and authors with the obvious object
of inviting the Court to find that they should be
relied upon, albeit for the limited purpose of estab
lishing such collateral matters as state of mind and
course of conduct.
Dr. Chamberlin, one of the main experts of the
plaintiffs testified as to the training, the competen
cy, the dedication to the cause of the Indians, the
integrity and the general liaison roles of Indian
Agents and district superintendents and also as to
their importance as sources of information for the
Department of Indian Affairs regarding the Indian
peoples, their local conditions and requirements.
There is also other evidence pointing to these
matters. I therefore have little hesitation in con
cluding that, generally speaking, it appears that
there is prima facie evidence to the effect that
their reports would be objective and, if biased at
all, would be biased in favour of the Indians rather
than against them.
That being said, each document submitted must
still be considered to see whether, either on its face
or, having regard to all the evidence relating to it,
it still meets the tests of sufficient reliability and
disinterest to allow it to be admitted. The question
of weight is of course another matter to be fully
considered at a later date in the light of all the
evidence adduced at trial. Weight or probative
value must however be given some consideration
regarding admissibility at this particular stage
although any conclusive decision as to weight must
normally be deferred, as so much will ultimately
depend on the credibility and the final weighing of
all of the evidence adduced.
The reports of Inspector Schmidtt (Exhibits 209
and 235) made in 1941 and 1943 were made
pursuant to his duties as an inspector. He was
charged with visiting the various regions and
reporting thereon. In addition to his own personal
observations and information gathered from the
Indians themselves, there is a possibility that the
documents might contain information received
from Indian Agents on the spot or other sources
which of course would constitute double hearsay.
Schmidtt was performing his duties as an inspector
and, failing evidence to the contrary, he would in
all probability have been attempting to set out the
factual situation as it existed at the time and, in
order to do so, would have attempted to obtain the
best information from the best sources at his dis
posal. Since he is no longer available to testify and
most probably all others involved are also
deceased, those reports constitute the best and
possibly the only evidence now available. They
should in my view be admitted. For clarification,
however, the only part admissible among the por
tions of Exhibit 209 on which the defendant's
counsel has stated he wishes to rely, will be the
facts relating to homes on pages 2 and 3: the
references at pages 7 and 8 are not admissible as
they consist mainly of opinion which cannot con
veniently be separated from the statements of
facts.
Having regard to the statements of facts on
which the defendant wishes to rely in Schmidtt's
reports, I must find, at this stage at least, that they
are probably trustworthy statements of fact, unless
the writer for some unimaginable motive intended
to deliberately deceive his superiors. I therefore
consider their reliability or trustworthiness as bona
fide statements of those facts, to be high. In the
case of all documents however their admissibility
constitutes but prima facie proof and any conclu
sions of fact to be gathered from them is, of
course, subject to qualification or contradiction by
other evidence.
Numerous objections were raised against admis
sion of the Band Council Resolutions (B.C.R.$).
The plaintiffs argued that if a record was to be
used purporting to state what was decided then it
should have been created as such; the words do not
reflect the situation and do not properly describe
the circumstances; they are not records of what the
people actually did and decided; the documents
were created not to be a record but merely as an
administrative convenience; they were not intro
duced as a record of what the people understood
and intended in any detail.
I cannot agree: on the contrary, I feel that they
were intended as a record of what the Indians
decided although they obviously do not describe
properly how the decisions were arrived at. It is
quite obvious that no Indian stated that he was
proposing a motion or seconding a motion, and
that no formal parliamentary procedural vote on a
motion was ever taken. As a matter of fact the
very term "resolution" is a description of what one
would expect to obtain from the meeting of a
board of directors. It could not be applied to what
in effect was intended to be the recording of the
wishes of the majority of the Dunne-za Cree Indi-
ans present at a duly convened band meeting or of
any meeting of their council. B.C.R.s are required
by the Department in order to authorize the spend
ing of the money adding to the credit of the bands.
At times when the Department felt it advisable or
when there were not sufficient band funds immedi
ately available, in the revenue account for
instance, expenditures would be made up from the
general funds appropriated to the Department of
Indian Affairs by Parliament.
Although the fundamental duty of the Indian
Agent was to help the band and advise them and
assist them in their relationship with the Depart
ment of Indian Affairs and also to attempt to have
their wishes carried out, there is no doubt that
when the bands were, as in the present case,
relatively unsophisticated, the Agent would be
expected to take whatever initiatives might be
required for the welfare of the band and to discuss
with them the advisability of requesting certain
matters from the Department.
Counsel for the plaintiffs' objection that there is
no indication as to who put the suggestions first,
covering the various expenditures etc. is of no
great consequence if the ultimate decision was that
they agreed to the expenditures indicated.
There were manifest errors in the detailed word
ing of the resolutions such as the description of the
Band but not, in my view, such as to render the
documents inadmissible. For instance, the mere
fact that the Beaver Band of Indians was described
as "Beaver" and that the printed form stated that
it was a resolution of the Beaver Band as "owners"
of the reserve at Doig (or Blueberry), when in fact
at that particular time when the resolution was
taken the bands concerned had not yet become the
actual owners of the reservations described, does
not affect the validity of the substantive part of the
resolution to the effect that they wished to author
ize the expenditure of certain sums of money for
certain purposes.
The printed forms of the B.C.R.s were obviously
devised as vehicles to convey information for use
by Indian bands throughout the country including
those who might very well be quite advanced
educationally and socially. It would be ridiculous
to imagine that, as counsel for the plaintiffs seems
to suggest, forms and procedures should be devised
and prepared for various bands in accordance with
their relative degree of sophistication or education.
I do not accept the argument that every word of a
resolution or of the minutes of a meeting would
have to be proven as accurate even though those
words do not relate to substance, in order to have
the document accepted in evidence pursuant to
subsection 30(1).
Finally, the B.C.R.s are admissible in any event.
They purport to be signed by members of the
Council and witnessed by Galibois, and since they
have been conceded by both parties to be authen
tic, then they are deemed for the purpose of this
trial to have been signed by the persons named.
Since they are parties to the action, then the
documents are admissible for all purposes as writ
ten statements against interest made by parties to
the action. The plaintiffs argue that the Indians
did not know what they were signing. Even if this
turned out to be true after all the evidence was in
and even if, as a result, their purported legal effect
might be totally nullified and the validity or proba-
tive value of any statement of fact therein con
tained destroyed, they are still admissible at the
present time as evidence for all purposes,
independently of section 30 of the Canada Evi
dence Act or of any other common law exception
to the hearsay rule.
The same remarks as are applicable to B.C.R.s
generally apply to the other formal documents
such as "Consents to Band Transfer" where the
Chief and councillors certify that a general meet
ing of the Band was convened to authorize an
Indian to become a member of the Band.
As the Indians, when they were required to sign,
did so with an "X" and as the documents were in
English, it is quite obvious that they did not under
stand the exact meaning of the words nor could
they read the documents themselves. There is no
indication however that they did not understand
the substance of these specific resolutions or of the
matters discussed, namely, requests for expendi
ture of certain sums of money for the purchase of
certain articles, payments of interest to members
of the Band, welfare payments, etc.
As to the minutes of the meetings of Band
Council, there seems to be very little doubt that
meetings were not in fact carried out in accord
ance with Parliamentary procedures with a mover,
a seconder followed by a formal vote. The mere
fact that Galibois chose to record the motions as
having been moved or having been moved and
seconded (the persons being unnamed), I am sure
did not deceive anyone, least of all the Department
of Indian Affairs, when they received these resolu
tions, nor do any such expressions when read
together with the B.C.R.s and the reporting letters
which are most important, would anyone be
deceived as to the substance of what was purport
edly recorded in the motions and the resolutions
and approved at meetings of the council.
On this issue, I must state that each document
much not be taken in isolation. In considering a
document others must not be ignored, especially
where they were created at the same time and
refer to the same occurrence or series of occur
rences. The treaty lists, for instance, are to be read
with the covering reports and any minutes or
details of the meetings themselves all of which
relate to the same incident or series of incidents,
providing of course they appear to have been made
reasonably contemporaneously and in the normal
course of business.
The plaintiffs also argued that the reports of the
Indian Agent should all be rejected on the grounds
of double hearsay, at least insofar as any informa
tion gathered from the Indians themselves was
concerned. It appears that the Indian Agent might,
at times, have communicated with certain Indians
in pidgin English but he would also be obliged to
communicate with others through an interpreter.
His written report on the information received
from the interpreter would therefore constitute
double hearsay since the latter would, in the first
place, be telling the Agent in English what the
Indian stated in either Cree or Beaver. Further
more, the interpreter would obviously not have
been an official interpreter and would not have
taken any oath to interpret correctly.
The reports undoubtedly, in those circum
stances, constitute double hearsay but, in my view,
it is a type of double hearsay which clearly should
be admitted. There is no reason to believe that the
interpreter, who in all probability would be a
member of the same band as the Indians with
whom the conversation was engaged, would be
biased against the Indians or have any motive to
misrepresent what either party had said. If any
bias existed at all it would most probably be in
favour of the Indians whose counsel is presently
objecting to the introduction of the documents. Be
that as it may, both parties to the conversation
must presumably have agreed in each case to use
the interpreter and the latter should therefore be
considered merely as an instrument or conduit,
conveying the words of each party. Mistakes in
comprehension or communication might certainly
occur and they frequently do even when no inter
preter whatsoever is involved. This however is no
reason to disregard the evidence especially in the
circumstances of the present case. The trustworthi
ness required by this exception to the hearsay rule
does not demand that the Court be absolutely
convinced that the evidence is totally devoid of
human error. Such a standard of proof would itself
be unrealistic and fail to take into account human
frailty to which we all are subject.
If conversations through an interpreter in such
circumstances were to be considered as inadmiss
ible hearsay, then even if Galibois or anyone else
were alive and attempting to testify viva voce on
conversations with the Indians all such evidence
would be inadmissible. The converse would also be
true in the case of Indians attempting to testify as
to what was said by Galibois or anyone else who
might have spoken in English. In my view, any
such result, especially in today's context, would be
nothing short of ludicrous.
The text of the message of the 16th of March,
1987, annexed as Schedule "A" to these reasons is
confirmed subject, of course, to the clarifications
mentioned herein.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.