Federal Court Decisions

T-800-97

B E T W E E N:

MILES CHARLES BRESSETTE

Applicant

- and -

KETTLE AND STONY POINT FIRST NATIONS BAND COUNCIL

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This matter came on for hearing before me at Toronto, Ontario, on June 23, 1997. At the close of oral argument, I instructed counsel to prepare a draft Order to deal with issues consented to by the parties and such Order was issued on June 30, 1997. I reserved judgement on the striking of the respondent's affidavit and indicated that these written reasons would follow.

     By Notice of Motion dated June 17, 1997, the Applicant sought an Order striking the affidavit of Mr. Allan Bressette, sworn May 23, 1997, or certain paragraphs thereof. Mr. Bressette is a member of the Band Council of the Kettle and Stony Point First Nations Band and of its Police Committee. In my view, paragraphs 9 and 15 of the affidavit should be struck.

     The contents of affidavits are governed by Rule 332 of the Federal Court Rules. Rule 332(1) reads as follows:

332. (1) Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions on which statements as to his belief with the grounds thereof may be admitted.

This Rule embodies the common law rule of hearsay which prohibits the admission of statements made by someone not called as a witness, except when such statements are tendered for a purpose other than to establish their truthfulness. The rationale for these two tenets is that the evidence contained in an affidavit must be able to be tested during a cross-examination of the affiant. With this in mind, each contested paragraph will be examined to determine its suitability.

     The applicant suggested that paragraphs 6, 7, and 8 should be struck because they refer to an audit of the Kettle and Stony Point Police performed at the request of the Band Council by Staff Sergeant W.J. Prosser of the Ontario Ministry of the Solicitor General and Correctional Services. The applicant argued that the report is outside of the personal knowledge of the affiant. The paragraphs read as follows:

6.      Applicant was suspended as a result of an audit of the Kettle and Stony Point Police Force conducted by Staff Sergeant W.J. Prosser of the Audit and Quality Assurance Branch, Ministry of the Solicitor General and Correctional Services. Attached hereto as Exhibit "C" is a copy of the audit report.

7.      The audit was requisitioned by Band Council as a result of poor morale reported by members of the Kettle and Stony Point Police.

8.      The audit reported that:

(a) the Applicant substantially deviated from proper attendance reporting with respect to one of the constables he was responsible for supervising;

(b) the deviations were such that if they occurred within the OPP there would be a strong possibility of disciplinary action for deceit;

(c) the deviations could not have been processed without the knowledge and support of the Applicant;

(d) the deviations were only found with respect to one of the constables, and not any of the other members of the Kettle and Stony Point Police;

(e) several inconsistent reports concerning the autocratic and vindictive management style of the Applicant were found to be credible by the investigating officer;

(f) there was poor communication and a lack of trust between the Applicant and the other constables;

(g) the other constables reported concerns over the Applicant's inconsistent and degrading disciplinary methods. In one instance, a member was placed on suspension without pay for one day at the discretion of the Applicant. The investigator found that police officers could not be subjected to such action, that such a power was dangerous and concluded that the suspension was not warranted in the above instance.

The decision to suspend the applicant is within the knowledge of the affiant and any reference to that decision in paragraphs 6 and 7 of the affidavit is not improper. Paragraph 8 is somewhat more problematic because it is a summary of Staff Sergeant Prosser's report and the affiant has no knowledge of how the report was conducted. However, I accept the submission by counsel for the respondent who stated that the audit was not tendered for the truthfulness of its contents but rather to inform the Band Council's decision to suspend the applicant pending a further investigation. Therefore, this motion is dismissed with respect to paragraphs 6, 7, and 8.

     Counsel for the applicant submitted that paragraph 9 should be struck because it expresses a legal conclusion. Paragraph 9 states:

9.      I verily believe that the Band Council, as the employer of the First Nations Police, was obligated to act upon receiving the results of the audit.

Counsel referred to the decision of Mr. Justice Muldoon in Bell Canada v. Canada (Human Rights Commission), [1991] 1 F.C. 356 at 359:

[T]his and every other deponent must abstain from expressing any gloss or explanations of the law. The respondent's counsel may do that in submissions to, and discussions with, the Court, which is the proper ultimate interpreter of the law. An attempt to cross-examine a deponent on this matter would end up being an improper canvassing of the deponent's opinion about the ... interpretation of the law.

I agree with counsel's argument and consequently order that paragraph 9 be struck from the affidavit.

     Counsel for the applicant submitted that paragraph 11 should be struck because it expresses an opinion about the legal character of the impugned decision:

11.      The decision regarding the Applicant's suspension with pay was an administrative decision and was based solely on the results of the preliminary audit of Staff Sergeant Prosser. It was meant to allow a full and fair investigation without penalizing constable Bressette.

However, I am satisfied by the submission of the respondent that the term, "administrative decision," does not refer to a decision of administrative law but rather to a decision taken by the board responsible for the administration of the police. As such, the paragraph contains information within the personal knowledge of the affiant. Accordingly, the motion to strike paragraph 11 is dismissed.

     The applicant also objected to paragraph 14 on the grounds that the first sentence expresses a legal conclusion. That paragraph states:

14.      I verily believe that the Applicant's attempt to have Band Council's decision reviewed is premature. No decision regarding whether disciplinary action should be taken against the Applicant has been made. Any decision to be made will await the outcome of the thorough investigation and following an opportunity for the Applicant to respond.

While I agree that the first sentence is problematic, I am satisfied that the remainder of the paragraph presents evidence within the knowledge of the affiant as a member of the Band Council and Police Committee, and that nothing would be gained by striking the sentence. As a result, the motion to strike paragraph 14 is dismissed.

     Counsel for the applicant submitted that paragraph 15 was inappropriate because it expresses the affiant's opinion with respect to the applicant's legal rights. The respondent countered that the paragraph expresses the opinion of the Band Council, of which the affiant is a member. The paragraph reads as follows:

15.      The Applicant is not entitled, at this juncture, to a hearing until the results of the further investigation are known.

In my view, paragraph 15 is similar in character to paragraph 9 and must also be struck.

     Paragraphs 21 and 22 read as follows:

21.      Staff Sergeant Wayne Prosser has advised that the results obtained from the preliminary audit would warrant discipline under the Police Services Act for any constable who was off Reserve.

22.      Council has made every effort to remain fair and not act prematurely. Rather than simply rely on the initial audit which appears on its face to warrant discipline, Band Council has engaged the assistance of the OPP in conducting a further review into this matter.

     As I indicated in a telephone conference with counsel a few days ago, I could justify a finding that reference to discipline is hearsay. At the same time, my normal practice would be to allow the amendment to be made. In this case, I am anxious to maintain the promised hearing date of the week of September 23, 1997 in London and since I will be presiding at the hearing and since some reference to the audit seems essential on balance, I have decided to leave in paragraphs 21 and 22.

     The final aspect in dispute is the reference to the fact that a part of the reference is the Crime Stoppers tip as the source of the review. Were it to prove the truth of the allegations in the Crime Stoppers tip, I would strike it out. In my view, the reference can remain because it tends to prove only the existence of the tip as opposed to the truth of it.

     For these reasons, paragraphs 9 and 15 are struck and the application is otherwise dismissed with costs in the cause.

O T T A W A

August 29, 1997                  "James A. Jerome"

                         A.C.J.