Date: 19980121
Docket: T-2243-93
BETWEEN:
EDWARD ANDERSON, GARNET WOODHOUSE,
MARSHALL WOODHOUSE, ROBERT MCLEAN,
PATRICK ANDERSON, ORMAND STAGG and
GEORGE TRAVERSE on their own behalf and on
behalf of all members of the FAIRFORD FIRST NATION,
a body of Indians described as the Fairford Band
and declared to be a band for the purposes of the
Indian Act by P.C. 1973-3571,
Plaintiffs,
- and -
THE ATTORNEY GENERAL OF CANADA on behalf of
HER MAJESTY THE QUEEN in Right of Canada,
Defendant.
Heard at Winnipeg, Manitoba, January 15, 1998
Order delivered at Winnipeg, Manitoba, on January 21, 1998
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE ROTHSTEIN
Date: 19980121
Docket: T-2243-93
BETWEEN:
EDWARD ANDERSON, GARNET WOODHOUSE,
MARSHALL WOODHOUSE, ROBERT MCLEAN,
PATRICK ANDERSON, ORMAND STAGG and
GEORGE TRAVERSE on their own behalf and on
behalf of all members of the FAIRFORD FIRST NATION,
a body of Indians described as the Fairford Band
and declared to be a band for the purposes of the
Indian Act by P.C. 1973-3571,
Plaintiffs,
- and -
THE ATTORNEY GENERAL OF CANADA on behalf of
HER MAJESTY THE QUEEN in Right of Canada,
Defendant.
REASONS FOR ORDER
APPLICATION TO ADMIT EXPERT EVIDENCE
ROTHSTEIN, J.
[1] This is an application in the course of trial to qualify Ernest E. Hobbs as an expert witness and to enter his report as evidence. Mr. Hobbs' expertise is said to be as a "First Nations claims researcher and analyst with expertise in social and economic impact assessments, First Nations/Federal/Provincial relations, community development and Indian Government, and resource development impact assessments with emphasis on aboriginal peoples". The Plaintiffs ask that Mr. Hobbs be allowed to give expert opinion evidence with respect to the planning and construction of the 1961 water control structure on the Fairford River and the natural impacts of the operation of the water control structure on the lands and interests of the Fairford First Nation.
[2] Admission of expert evidence depends on the application of the following criteria:
| (a) relevance; |
| (b) necessity in assisting the trier of fact; |
| (c) the absence of any exclusionary rule; |
| (d) a properly qualified expert. |
See R. v. Mohan, [1994], 2 S.C.R. 9 at 20 per Sopinka J.
[3] I accept that the subject matter of Mr. Hobbs' evidence is relevant. The Defendants do not rely on any exclusionary rule. Therefore the only two issues to be decided are whether Mr. Hobbs is a properly qualified expert and, if so, whether his evidence is necessary.
[4] I turn first to whether Mr. Hobbs is a properly qualified expert. In R. v. Mohan, supra, Sopinka J. states at page 25:
| Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify. |
In R. v. Marquard, [1993], 4 S.C.R. 223, McLaughlin J. at 243, quotes with approval an excerpt from Sopinka, Lederman, and Bryant, The Law of Evidence in Canada (1992), at
pages. 536-37:
| The Admissibility of such [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject-matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence. |
[5] Here Mr. Hobbs' skill is not primarily derived from his formal education, but from many years of work, first with the Government of Canada, and later as a private consultant, when his services were provided largely to First Nation bands. He is not disqualified as an expert because of the way in which he acquired his knowledge.
[6] Mr. Hobbs has never been qualified as an expert witness. Nor have Plaintiff's counsel provided any evidence suggesting that Mr. Hobbs' alleged field of expertise is one that has received acceptance by any court. However, there is no finite range of topics about which an expert may testify and the field is in a continual state of flux - see Sopinka, Lederman, and Bryant, The Law of Evidence in Canada (1992), at page 534. That he has never before been qualified as an expert or that no one else may ever have been qualified in his field does not preclude him from being considered a properly qualified expert.
[7] Mr. Hobbs was led through his extensive experience in considerable detail and I am satisfied, based on that evidence, that he has studied and has knowledge in the area of assessing the impacts of resource development on aboriginal people.
[8] I turn to necessity. In Mohan, supra, Sopinka J., relying on the dicta of Dickson J. (as he then was) in R. v. Abbey, [1982] 2 S.C.R. 24, provides some guidance as to the applicable standard for determining whether expert evidence is necessary. At page 23 of Mohan he states:
| In R. v. Abbey, supra, Dickson J., as he then was, stated, at p. 42: |
| With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.) |
| This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. |
The question then is whether Mr. Hobbs will provide information that is outside the experience and knowledge of a judge such that it is necessary to enable the judge to appreciate the matters in issue due to their technical nature. Having regard to Mr. Hobbs' expert report filed in advance by Plaintiffs in accordance with the Rules of the Court, I asked Plaintiffs' counsel to point out representative examples of technical areas in the report that were likely to be outside the experience and knowledge of a judge. I am not satisfied that what has been selected as representative is technical in the sense that it is outside the knowledge and experience of a judge.
[9] Much of what has been referred to in the report repeats or summarizes the evidence of the factual witnesses. For example there is reference to difficulties with band elections arising from the ineligibility to vote by members residing on land that was to become part of the reserve but in respect of which all formalities had not been finalized. A number of factual witnesses have already testified to this issue and there is nothing technical about it. Another example is a reference in the report to the loss of traditional means of livelihood and loss of traditional lifestyle for members of the Fairford Band, attributable to devastation of natural resources as a result of the construction and operation of the water control structure. This again is evidence to which many of the factual witnesses have testified. There is nothing technical about this information in the report that requires expert evidence to enable a judge to appreciate the matters raised. Another example is Mr. Hobbs' view that Canada's approval and financing of the water control structure without due regard for Indian interests is inconsistent with Canada's statutory and treaty obligations to the Fairford First Nation. The interpretation of statutes and treaties is a question of law for the Court and not expert witnesses.
[10] Of the examples cited from the report, the one that comes closest to providing information of a technical nature relates to population changes on the reserve and migration on and off the reserve. The report suggests that outward migration is probably correlated to periods characterized by "turbulent water conditions". However the report does not purport to advance this proposition on the basis of a statistical analysis or in any other technical manner. It is merely a general assessment of population changes and an inference of likely contributing factors.
[ 11] While I think Mr. Hobbs' evidence might be helpful in that it summarizes and organizes much of the factual testimony, that is a function for counsel in argument. Having regard to the "necessity" for expert evidence as explained by Sopinka J. in R. v. Mohan, I have not been persuaded that Mr. Hobbs' proposed evidence is necessary.
[12] Defendant's counsel made a number of other arguments for excluding the Hobbs evidence but I do not rely upon them for my decision. The Defendants argued that Mr. Hobbs' evidence, if admitted, might mislead the Court and might be given more weight than it deserves and should be rejected for that reason. However, I think this argument would normally be applicable where expert evidence is technical in nature and not easily understood. That is not the case here. It was also argued that Mr. Hobbs had a large unpaid account with the Fairford Indian Band which was payable on the contingency that the Plaintiffs are successful in this case, although all details had not been worked out. Defendants also submitted that Mr. Hobbs' testimony was more in the nature of advocacy than expert evidence, and indeed the report appears to contain a number of statements that might be characterized as somewhat "strident". However these are considerations that go to weight. They are not reasons to exclude the evidence.
[ 13] The Hobbs evidence will not be admitted solely because it is not necessary for the
Court to appreciate the issues in this trial.
"Marshall Rothstein"
Winnipeg, Manitoba Judge
January 21, 1998
FEDERAL COURT OF TRIAL
Date: 19980121
Docket: T-2243-93
BETWEEN:
EDWARD ANDERSON, GARNET WOODHOUSE,
MARSHALL WOODHOUSE, ROBERT MCLEAN,
PATRICK ANDERSON, ORMAND STAGG and
GEORGE TRAVERSE on their own behalf and on
behalf of all members of the FAIRFORD FIRST NATION, a body of Indians described as the Fairford Band and declared to be a band for the purposes of the Indian Act by P.C. 1973-3571,
Plaintiffs,
- and -
THE ATTORNEY GENERAL OF CANADA on behalf of HER MAJESTY THE QUEEN in Right of Canada,
Defendant.
REASONS FOR ORDER
APPLICATION TO ADMIT
EXPERT EVIDENCE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-2243-93
STYLE OF CAUSE:
EDWARD ANDERSON, GARNET WOODHOUSE, MARSHALL WOODHOUSE, ROBERT MCLEAN, PATRICK ANDERSON, ORMAND STAGG andGEORGE TRAVERSE on their own behalf and on behalf of all members of the FAIRFORD FIRST NATION, a body of Indians described as the Fairford Band and declared to be a band for the purposes of the Indian Act by P.C. 1973-3571,
Plaintiffs,
and
THE ATTORNEY GENERAL OF CANADA on behalf of HER MAJESTY THE QUEEN in Right of Canada,
Defendant.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 15, 1998
REASONS FOR ORDER
OF THE COURT: The Honorable Mr. Justice Rothstein
DATED: January 21, 1998
APPEARANCES:
E. Anthony Ross
Kevin J. Scullion for the Plaintiffs
Brian Hay
Craig J. Henderson
Sidney R. Restall
Dept. of Justice
Winnipeg, Manitoba for the Defendant
SOLICITORS OF RECORD:
Harris & Harris
Toronto, Ontario for the Plaintiffs
Mr. George Thomson, Q.C.
Deputy Attorney General of Canada for the Defendant