Sawridge Band v. Canada
T-66-86
Muldoon J.
18/10/93
9 pp.
Case involving action for declarations Indian Act unconstitutional as infringing right of Indian bands to determine own membership and imposition of additional members on plaintiff bands interference with Charter freedom of association -- Application for permission to travel to hear particular witness and to view two reserves -- Federal Court Act, s. 53 permitting commission evidence operating "subject to any rule or order that may relate to matter" -- R. 477 permitting taking sworn or affirmed depositions out of courtroom -- R. 494(11) permitting Court to inspect any place concerning which any question may arise in proceeding -- Motions dismissed -- Plaintiffs not invoking R. 477, but seeking, without any supporting evidence, to move Court's situs to another venue so that witness can be heard where she resides, not at place fixed for trial -- At pre-trial conference all counsel agreed to apply for commission in usual way, or agree upon method for obtaining testimony of witnesses who by reason of age and/or infirmity unable to testify in ordinary way -- Counsel not alleging witness' infirmity or age, other than that she is 85, nor that she is unable to travel to Edmonton except to say that she declines to travel by airplane -- No need demonstrated to relocate trial venue for witness nor to incur cost thereof -- Reference to Canadians for the Abolition of the Seal Hunt v. Minister of Fisheries and the Environment, [1981] 1 F.C. 733 (T.D.) wherein noted Court not justified in obtaining evidence for parties and cannot conduct own independent investigations to help party -- Judge not permitted to speak with anyone at site being viewed -- Triple A Investments Ltd. v. Adams Brothers Ltd. (1986), 23 D.L.R. (4th) 587 (Nfld. C.A.) holding view to help judge better understand evidence given at trial -- View must be complete and whole, not selective, in regard to issues raised for determination in litigation -- If determination of questions herein affecting all Indian bands affected by 1985 amendments to Indian Act, neither reasonable nor logical to view one or two reserves out of hundreds -- Even if typical, Sarcee reserve only one of many -- Court having good understanding of evidence -- Court not peripatetic surveying institution -- View of reserves not necessary to appreciate and understand evidence and testimony -- Time taken for view better utilized hearing plaintiff's witness at trial in courtroom -- Federal Court Rules, C.R.C., c. 663, RR. 477, 494(11) -- Federal Court Act, R.S.C., 1985, c. F[ib]-7, s. 53.