Commission of Inquiry Into Matters Releating to the Death of Neil Stonechild

 

RULES OF PROCEDURE AND PRACTICE

  1. The Terms of Reference provide that the Commission shall have the responsibility to inquire into any and all aspects of the circumstances that resulted in the death of Neil Stonechild, and the conduct of the investigation into the death of Neil Stonechild for the purpose of making findings and recommendations with respect to the administration of criminal justice in the Province of Saskatchewan.
  1. HEARINGS

Public hearings will be convened in Saskatoon to address issues within the Terms of Reference. Persons or groups granted standing are referred to in these Rules as parties. The term "party" is used to convey the grant of standing and is not intended to convey notions of an adversarial proceeding.

    1. The Commissioner may amend or dispense with these Rules as he sees fit to ensure fairness.

    2. All parties and their counsel shall adhere to these Rules, and non-compliance with the Rules may result in loss of standing or such other sanction as the Commissioner may determine as appropriate.

    3. Any party may raise any issue of non-compliance with these Rules with the Commissioner.

    4. The Commission is committed to a process of public hearings. However, the Terms of Reference provides that the Commission may, at the discretion of the Commissioner hold some proceedings in camera. Any party or witness wishing to have any portion of the proceedings in camera, shall apply in writing at the earliest possible opportunity pursuant to the provisions of paragraph 32 below.

    5. Counsel for parties and counsel representing witnesses called to testify before the Commission may participate during the hearing of such evidence as provided in these Rules.

  1. EVIDENCE

  1. General

In the ordinary course Commission counsel will call and question witnesses who testify at the Inquiry. Counsel for a party may apply to the Commissioner to lead a particular witness's evidence in-chief. If counsel is granted the right to do so, examination shall be confined to the normal rules governing the examination of one's own witness.

  1. The Commission is entitled to receive any relevant evidence that might otherwise be inadmissible in a court of law. The strict rules of evidence will not apply to determine the admissibility of evidence.

  2. Parties shall provide to Commission counsel the names and addresses of all witnesses they feel ought to be heard, and shall provide to Commission counsel copies of all relevant documentation, including statements of anticipated evidence, at the earliest opportunity.

  3. Commission counsel have a discretion to refuse to call or present evidence.

  4. When Commission counsel indicate that they have called the witnesses whom they intend to call in relation to a particular issue, a party may then apply to the Commissioner for leave to call a witness whom the party believes has evidence relevant to that issue. If the Commissioner is satisfied that the evidence of the witnesses is needed, Commission counsel shall call the witness, subject to Rule 8.

    1. Witnesses

Anyone interviewed by or on behalf of Commission counsel is entitled, but not required, to have one personal counsel present for the interview to represent his or her interests. If a person is employed or holds office with someone who holds standing as a party, Commission counsel will interview that person only after informing counsel for the party, unless the witness says they have independent counsel or instructs Commission counsel that they do not wish counsel for the party to be present or notified.

      1. If a witness has held prior employment with one or more of the parties, Commission counsel will tell the witness that they are free to have the benefit of counsel for that party, but Commission counsel will proceed with the interview if the witness indicates that they do not wish counsel for the party by whom they were employed to be notified or be present during the interview.

      2. Witnesses will give their evidence at a hearing under oath or affirmation.

      3. Witnesses may require that the Commission hear evidence pursuant to a subpoena in which case a subpoena shall be issued.

      4. Witnesses who are not represented by counsel for parties with standing are entitled to have their own counsel present while they testify. Counsel for a witness will have standing for the purposes of that witness' testimony to make any objection thought appropriate.

      5. Witnesses may be called more than once.

      6. Before a person gives evidence to the Inquiry, such person shall be advised that he or she has the protection of section 37 of the Saskatchewan Evidence Act and section 5 of the Canada Evidence Act.

    1. Order of Examination

  1. The order of examination will be as follows:

        1. Commission counsel will adduce the evidence from the witnesses. Except as otherwise directed by the Commissioner, Commission counsel are entitled to adduce evidence by way of both leading and non-leading questions;

        2. parties granted standing to do so will then have an opportunity to cross-examine the witness to the extent of their interest. The order of cross-examination will be determined by the parties having standing and if they are unable to reach agreement, by the Commissioner;

        3. counsel for a witness, regardless of whether or not counsel is also representing a party, will examine last, unless he or she has adduced the evidence of that witness in-chief, in which case there will be a right to re-examine the witness; and

        4. Commission counsel will have the right to re-examine.

      1. Except with the permission of the Commissioner, no counsel other than Commission counsel may speak to a witness about the evidence that he or she has given until the evidence of such witness is complete. Commission counsel may not speak to any witness about his or her evidence while the witness is being cross-examined by other counsel.

    1. Access to Evidence

  1. All evidence shall be categorized and marked P for public sittings and, if necessary, C for sittings in camera.

      1. Electronic copies of the P transcript of evidence will be provided to parties by the court reporter. Hard copies of the transcript may be ordered by anyone prepared to pay the cost. One copy of the P transcript and the P exhibits of the public hearings will be made available for public review.

      2. Another copy of the P transcript of the public hearings and a copy of P exhibits will be available to be shared by the media.

      3. Only those persons authorized by the Commission in writing shall have access to C transcripts and exhibits.

    1. Documents

  1. All relevant documents, including statements of anticipated evidence, are to be produced to the Commission counsel by any party with standing at the earliest opportunity.

      1. Originals of relevant documents are to be provided to Commission counsel upon request.

      2. Counsel to parties and witnesses will be provided with documents and information, including statements of anticipated evidence, only upon giving an undertaking that all such documents or information will be used solely for the purpose of the Inquiry and, where the Commission considers it appropriate, that its disclosure will be further restricted. The Commission may require that documents provided, and all copies made, be returned to the Commission if not tendered in evidence. Counsel are entitled to provide such documents or information to their respective clients only on terms consistent with the undertakings given, and upon the clients entering into written undertakings to the same effect. These undertakings will be of no force regarding any document or information once it has become part of the public record. The Commissioner may, upon application, release any party in whole or in part from the provisions of the undertaking in respect of any particular document or other information, or authorize the disclosure of documents or information to any other person.

      3. Counsel to parties and witnesses will as soon as reasonably possible after disclosure of documents or information to their clients, or other persons as authorized by the Commissioner, provide to the Commission a copy of the undertaking of such person, together with a list of the documents or information disclosed.

      4. Documents received from a party, or any other organization or individual, shall be treated as confidential by the Commission unless and until they are made part of the public record or the Commissioner otherwise declares. This does not preclude the Commission from producing a document to a proposed witness prior to the witness giving his or her testimony, as part of the investigation being conducted, or pursuant to Rule 26.

      5. Subject to Rule 30 and to the greatest extent possible, Commission counsel will endeavor to provide in advance to both the witness and the parties with standing relating to issues with respect to which the witness is expected to testify, documents that will likely be referred to during the course of that witness' testimony and a statement of anticipated evidence.

      6. Parties shall, at the earliest opportunity, provide Commission counsel with any documents that they intend to file as exhibits or otherwise refer to during the hearings, and in any event shall provide such documents no later than the day before the document will be referred to or filed.

      7. A party who believes that Commission counsel has not provided copies of relevant documents must bring this to the attention of Commission counsel at the earliest opportunity. The object of this rule is to prevent witnesses from being surprised with a relevant document that they have not had an opportunity to examine prior to their testimony. If Commission counsel decides the document is not relevant, it shall not be produced as a relevant document. This does not preclude the document from being used in cross-examination by any of the parties. Before such a document may be used for the purposes of cross examination, a copy must be made available to all parties by counsel intending to use it not later than the day prior to the testimony of that witness, subject to the discretion of the Commissioner.

    1. Confidentiality

  1. If the proceedings are televised, applications may be made for an order that the evidence of a witness not be televised or broadcast.

      1. Any witness may apply to the Commissioner to be granted "Confidentiality" which shall be at the discretion of the Commissioner, and on such terms as the Commissioner shall determine. For the purposes of the Inquiry, Confidentiality shall include the right to have the witness's identity disclosed only by way of non-identifying initials, and, if the witness so wishes, the right to testify before the Commission in private. Subject to the discretion of the Commissioner, only the Commissioner, Commission staff and counsel, counsel for parties with standing, and counsel for the witness who has been granted Confidentiality may be present during testimony being heard in private. With leave of the Commissioner, media representatives may be present during testimony being heard in private.

      2. A witness who is granted Confidentiality will not be identified in the public records and transcripts of the hearing except by non-identifying initials. Any reports of the Commission using the evidence of witnesses who have been granted Confidentiality will use non-identifying initials only.

      3. Media reports relating to the evidence of a witness granted Confidentiality shall avoid references that might reveal the identity of the witness. No photographic or other reproduction of the witness shall be made either during the witness' testimony or upon his or her entering and leaving the site of the Inquiry.

      4. Any witness who is granted Confidentiality will reveal his or her name to the Commission and, subject to the discretion of the Commissioner, to counsel participating in the Inquiry in order that counsel can prepare to question the witness. The Commission and counsel shall maintain confidentiality of the names revealed to them. No such information shall be used for any other purpose either during or after the completion of the Commission's mandate.

      5. Any witness who is granted Confidentiality may either swear an oath or affirm to tell the truth using the non-identifying initials given for the purpose of the witness's testimony.

      6. All parties, their counsel, and media representatives shall be deemed to undertake to adhere to the rules respecting Confidentiality. A breach of these rules by a party, counsel to a party or a media representative shall be dealt with by the Commissioner, as he sees fit.

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   2004   The Wright Commission