A-1071-91
Attorney General of Quebec (Intervener/Mis en
cause)
and
Eastmain Band et al. (Applicants/Respondents)
and
Raymond Robinson et al. (Respondents/Mis en
cause)
and
Hydro -Québec (Intervener/Applicant)
INDEXED AS: EASTMAIN BAND V. CANADA (FEDERAL
ADMINISTRATOR) (CA.)
Court of Appeal, Décary J.A.—Ottawa, September
24 and 25, 1992.
Practice — Evidence — Judicial notice — Application to
delete two documents from statement of facts and law in case
on appeal — First document, extract from Canada Gazette,
Part I, not covered by Canada Evidence Act, s. 18 or Statutory
Instruments Act allowing judicial notice — No authority for
broadening concept of judicial notice — Document admissible
only if granted upon application under R. 1102 — Second doc
ument, extract from House of Commons Debates containing
Minister's speech — Evidentiary value of statements in parlia
mentary debates varies depending on speaker, context — Par
liamentary debates admissible not to interpret statutory provi
sion but to determine which of two interpretations more
consistent with Parliamentary intent — Application allowed in
part.
Construction of statutes — Inclusion in case on appeal of
Minister's speech in debate on amendments to Fisheries Act as
recorded in House of Commons Debates — Whether admissi
ble to indicate malaise Parliament seeking to remedy or inad
missible as of limited evidentiary value — Court may consider
parliamentary debates not to interpret statute but to determine
which of two interpretations more consistent with parliamen
tary intent — Interpretation Act, s. 12 requiring court to give
every enactment such liberal construction as best ensures
attainment of objects.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 18.
Federal Court Rules, C.R.C., c. 663, R. 1102.
Fisheries Act, R.S.C. 1970, c. F-14 (as am. by S.C. 1976-
77, c. 35).
Interpretation Act, R.S.C., 1985, c. I-21, s. 12.
Navigable Waters Protection Act, R.S.C., 1985, c. N-22, s.
9(1).
Official Languages Act, R.S.C. 1970, c. O-2, s. 8(2)(d).
Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31.
Statutory Instruments Act, R.S.C., 1985, c. S-22.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Canadian Human Rights Commission) v. Taylor,
[1987] 3 F.C. 593; (1987), 37 D.L.R. (4th) 577; 9
C.H.R.R. D/4929; 29 C.R.R. 222; 78 N.R. 180 (C.A.);
Neill v. Calgary Remand Centre (1990), 109 A.R. 231;
[1991] 2 W.W.R. 352; 78 Alta L.R. (2d) 1 (C.A.).
REFERRED TO:
Re: Anti-Inflation Act, [1976] 2 S.C.R. 373; (1976), 68
D.L.R. (3d) 452; 9 N.R. 541; Highway Victims Indemnity
Fund v. Gagné et al., [1977] 1 S.C.R. 785; (1975), 10
N.R. 435; Re Residential Tenancies Act, 1979, [1981] 1
S.C.R. 714; (1981), 123 D.L.R. (3d) 554; 37 N.R. 158;
Reference re Upper Churchill Water Rights Reversion Act,
[1984] 1 S.C.R. 297; (1984), 47 Nfld & P.E.I.R.; 8 D.L.R.
(4th) 1; 139 A.P.R. 125; 53 N.R. 268; Wiretap Reference,
[1984] 2 S.C.R. 697; (1984), 35 Alta L.R. (2d) 97; Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; (1985), 24
D.L.R. (4th) 536; [1986] 1 W.W.R. 481; 69 B.C.L.R. 145;
23 C.C.C. (3d) 289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36
M.V.R. 240; 63 N.R. 266; Edmonton Liquid Gas v The
Queen, [1984] CTC 536; (1984), 84 DTC 6526; 56 N.R.
321 (F.C.A.); Lor-Wes Contracting Ltd. v. The Queen,
[1986] 1 F.C. 346; [1985] CTC 79; (1985), 85 DTC 5310;
60 N.R. 321 (C.A.); Canada (Attorney General) v. Young,
[1989] 3 F.C. 647; (1989), 27 C.C.E.L. 161; 89 CLLC
14,046; 100 N.R. 333 (C.A.); Thomson v. Canada, [1988]
3 F.C. 108; (1988), 50 D.L.R. (4th) 454; 31 Admin. L.R.
14; 84 N.R. 169 (C.A.); Vaillancourt v. Deputy M.N.R.,
[1991] 3 F.C. 663; [1991] 2 C.T.C. 42; (1991), 91 DTC
5408 (Eng.); (1991), 91 DTC 5352 (Fr.) (C.A.); Glynos v.
Canada, [1992] 3 F.C. 691 (C.A.); Tschritter v. Sohn,
Harrison and Bistritz (1989), 94 A.R. 304; (1989), 57
D.L.R. (4th) 579; [1989] 4 W.W.R. 175; 65 Alta L.R. (2d)
289; 19 R.F.L. (3d) 1 (C.A.).
AUTHORS CITED
Canada Gazette Part I, August 31, 1991, at p. 2874.
Côté, P.A. Interpretation of Legislation in Canada, 2nd
ed., Cowansville, Yvon Blais, 1991..
House of Commons Debates, Vol. vi, 2nd Sess., 30th
Parl., at pp. 5667 et seq.
APPLICATION for order deleting two documents
from statement of facts and law in case on appeal and
alternatively for leave to submit additional evidence.
Application allowed in part.
COUNSEL:
Jean-François Jobin, for Attorney General of
Quebec.
Franklin Gertler and Kathleen Lawand for the
Eastmain Band et al.
Jean-Marc Aubry, Q. C. and René LeBlanc for
Raymond Robinson et al.
Georges Emery, Q.C. and Michel Yergeau for
Hydro -Québec.
SOLICITORS:
Bernard, Roy & Associés, Montréal, for Attor
ney General of Quebec.
Hutchins, Soroka & Dionne, Montréal, and
O'Reilly, Mainville, Montréal, for the Eastmain
Band et al.
Deputy Attorney General of Canada for Ray-
mond Robinson et al.
Desjardins, Ducharme, Montréal, and Lavery,
de Billy, Montréal, for Hydro -Québec.
The following is the English version of the reasons
for order and order rendered by
DÉCARY J.A.: The applicant Hydro -Québec, the
intervener in the case on appeal, is asking that two
documents having tabs 3 and 4 be deleted from the
statement of facts and law of the respondents the
Eastmain Band et al., and alternatively, if this appli
cation is denied, that it be given leave to submit addi
tional evidence.
The two documents in question, which are:
(1) an extract from the House of Commons
Debates for May 16, 1977, namely the speech of
Hon. Roméo LeBlanc, Minister of Fisheries and
the Environment. (Tab 4);
(2) an extract from Part I of the Canada Gazette
dated August 31, 1991, at page 2874, which is
[TRANSLATION] "concerning an application by
Hydro -Québec to put a ferry cable over the
Eastmain River, pursuant to the provisions of
s. 9(1) of the Navigable Waters Protection Act,
R.S.C., 1985, c. N-22". (Tab 3);
were attached to the respondents' submission without
the latter asking this Court for authorization to do so,
saying that in their opinion these documents are
among those of which the Court may take judicial
notice.
I will first deal with the leave sought by Hydro -
Québec and mentioned in Part I of the Canada
Gazette. Counsel for the respondents admitted that
this was not a document covered by section 18 of the
Canada Evidence Act, R.S.C., 1985, c. C-5, which
allows judicial notice to be taken of "Acts of Parlia
ment", nor is it a document covered by the Statutory
Instruments Act, R.S.C., 1985, c. S-22, which allows
judicial notice to be taken of a series of documents
produced by the federal government. However, he
submitted that the Court should itself supplement this
legislation and add anything which from a reliable
source can easily be a matter of general knowledge,
and the Canada Gazette is clearly a reliable source
which anyone can consult at will. Learned counsel
could cite no authority in support of his argument,
and I know of none that would allow me to thus
broaden the concept of `judicial knowledge", which
has already been sufficiently compromised by law
yers and the courts.
The document in question, the existence of which I
would not myself have suspected or known of and
which I would in no way have been likely to consult
myself—and that in practical terms is essentially
what `judicial knowledge" is—could only become
part of the record if an application to file further evi
dence was made under Rule 1102 [Federal Court
Rules, C.R.C., c. 663] and, of course, allowed. As my
brother Mahoney J.A. pointed out in Canada (Cana-
dian Human Rights Commission) v. Taylor, [1987] 3
F.C. 593 (C.A.), at page 608, a case in which a party
also sought, following the publication of a Supreme
Court decision subsequent to the judgment a quo, to
enter new evidence in the record,
The Rules provide means for this Court to receive evidence.
The means do not include bootlegging evidence in the guise of
authorities.
In my opinion, therefore, tab 3 attached to the
respondents' statement of fact and law should be
deleted therefrom as well as the reference made to
that tab in paragraph 97 of the said statement.
I will now deal with the speech made by
Hon. LeBlanc in the 1977 debate on the adoption of
amendments to the Fisheries Act [R.S.C. 1970, c.
F-14 as am. by S.C. 1976-77, c. 35].
Relying on a number of decisions by the Supreme
Court of Canadas counsel for the Attorney General of
Quebec, who supported the applicant's position,
invited the Court simply to refuse to admit the speech
in question in view of its limited evidentiary value, as
in his view the Supreme Court would do.
Counsel for the respondents, relying on a number
of decisions of this Court 2 as well as two recent deci
sions of the Alberta Court of Appeal, 3 on the contrary
invited the Court to refer to the speech to verify the
"malaise" which Parliament sought to remedy by
adopting the amendments to the Fisheries Act.
1 Re: Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 387 et
seq.; Highway Victims Indemnity Fund v. Gagné et al., [1977]
1 S.C.R. 785, at p. 792; Re Residential Tenancies Act, 1979,
[1981] 1 S.C.R. 714, at p. 721 et seq.; Reference re Upper
Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, at
p. 315 et seq.; Wiretap Reference, [1984] 2 S.C.R. 697, at p.
711 et seq.; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at
p. 504 et seq.
2 Edmonton Liquid Gas Ltd. v The Queen, [1984] CTC 536
(F.C.A.), at pp. 546-547; Lor-Wes Contracting Ltd. v. The
Queen, [1986] 1 F.C. 346 (C.A.), at p. 355 et seq.; Canada
(Attorney General) v. Young, [1989] 3 F.C. 647 (C.A.), at p.
657, to which I would add Thomson v. Canada, [1988] 3 F.C.
108 (C.A.), at p. 132 et seq.; Vaillancourt v. Deputy M.N.R.,
[1991] 3 F.C. 663 (C.A.), at p. 673 and Glynos v. Canada,
[1992] 3 F.C. 691 (C.A.).
3 Tschritter v. Sohn, Harrison and Bistritz (1989), 94 A.R.
304 (C.A.), at pp. 308-312, reasons of Hetherington J.A.; Neill
v. Calgary Remand Centre (1990), 109 A.R. 231 (C.A.), at pp.
233-237.
I feel it is possible to reconcile these two appar
ently contradictory lines of authority as follows.
When the Court has to interpret a particular provision
it should not, in principle, take parliamentary debates
into account. However, if the Court comes to the con
clusion that the provision is open to two equally valid
interpretations, then and then only can it consult par
liamentary debates, not in order to interpret the provi
sion but to determine which of the two interpretations
is more consistent with the stated intent of Parlia
ment, and by so doing to adopt one rather than the
other.
It is a different matter to determine what expresses
the legislative intent in parliamentary debates. It is
clear that the evidentiary value of the statements in
the House fluctuates according to the quality of the
speaker, the time at which the statements are made
and the context in which they are made. I adopt in
this regard the observations of Kierans J.A. in Neill,
supra, note 3, at page 234:
Am I in breach of the rule against reference to Hansard
debate as an interpretive aid? That rule was recently reconsid
ered by Hetherington, J.A., in her concurring Reasons in
Tschritter v. Sohn, Harrison and Bistritz, . .. and she ques
tioned the continuing need for it.
For the purposes of this case, I need not go so far as she, in
that case, proposed. I refer only to a Ministerial statement on
introduction of a Bill. I need not, therefore, challenge totally
the first reason for the rule, which is that interpretive state
ments by an individual member reflect only that member's
view and are irrelevant. The statement is not just the view of
one member, it is a statement of policy by the Government that
introduced the Bill. This is particularly useful to the courts in
an age when, as Lord Denning observed in Escoigne Proper
ties Ltd. v. Inland Revenue Commissioners, [1958] A.C.
549, at 566 (H.L.), " ... there are no preambles or recitals to
give guidance".
It seems to me that this is the only solution by
which the Court can carry out the duty imposed on it
by the very wording of section 12 of the Interpreta
tion Act, R.S.C., 1985, c. I-21, to give every enact
ment "such fair, large and liberal construction and
interpretation as best ensures the attainment of its
objects". In any case, this is not such an extraordi-
nary solution. The superseded Official Languages
Act, R.S.C. 1970, c. O-2, required in para
graph 8(2)(d) that where there are two different ver
sions of the same provision preference should be
given to the version that "according to the true spirit,
intent and meaning of the enactment, best ensures the
attainment of its objects". It is well settled that
though the new Official Languages Act, R.S.C., 1985
(4th Supp.), c. 31, did not reproduce this rule of inter
pretation, it is only a codification of unwritten law
which thus resumes its rightful place. 4 It seems to me
eminently desirable for the Court, in choosing
between two possible interpretations, to adopt the one
which better corresponds to the spirit and intent of
the legislature.
I recognize that the dividing line, which is clear on
paper, is in practice more uncertain. It may be that
when the courts are venturing into a grey area, their
temerity will generally be offset by the lack of evi-
dentiary force they accord to the debates under con
sideration. Everything is a question of degree and of
common sense. It would not be prudent to erect abso
lute theoretical boundaries which would not stand up
to case-by-case reality.
I share the view of Prof. Côté, that:
In Canadian case law, the exclusionary rule is increasingly
questioned, and not all judges seem convinced of the wisdom
of rejecting such evidence ... As we shall see, these cases are
increasingly frequent, to such an extent that we may ask
whether the exclusionary rule is becoming the exception.
[Supra, note 4, at pp. 357-358.]
In both theory and principle, parliamentary history is inad
missible, absent a constitutional context, for the purpose of
interpreting a specific provision of an enactment. However,
this principle is riddled with derogations and exceptions to
such a point that we may ask whether it is on its last legs, if not
completely finished.
Frequently the principle is simply ignored by the court.
These derogations would undoubtedly have less weight were it
not for the fact that they occasionally find themselves cited in
decisions of the Supreme Court of Canada. [Supra, note 4, at p.
364.]
In the case at bar the extract from the speech set
out by the respondents at tab 4 of their statement of
4 See Glynos, supra, note 2; P.A. Côté, Interpretation of
Legislation in Canada. 2nd ed., Cowansville, Yvon Blais,
1991, at pp. 273-274.
facts and law was given by the responsible Minister
when the bill was tabled in the House. It is not my
function at this stage to decide whether the Court
may wish to refer to it or to determine its evidentiary
value, if any. All I am deciding here is that the
respondents were entitled in paragraph 159 of their
statement of facts and law to ask the Court to take
judicial knowledge of it and to set it out in tab 4.
ORDER
The intervener's application is allowed in part and
the Court orders that tab 3 of the respondents' state
ment of facts and law be deleted from the record and
the reference thereto in paragraph 97 of the said sub
mission be struck out. There will be no award of
costs.
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.