THE ADVOCATE V O L . 7 5 P A R T 6 N O V E M B E R 2 0 1 7 821 PROVING HISTORY: THE ROLE OF THE EXPERT By John S. Tyhurst* In Delgamuukw v. British Columbia, Chief Justice Lamer described the courts’ function in the trial of an Indigenous title claim as “the determination of the historical truth”.1 This does not mean that history is an immutable thing that can be proven in the courtroom with scientific certainty. When historical facts are relevant in litigation, they can provide fertile ground for interpretation and opinion, and thus become the subject matter of expert evidence. In R. v. Van der Peet, Lamer C.J.C. noted the challenges posed by “proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in”.2 In spite of these challenges, the courts must tackle the daunting task of reaching conclusions on historical matters on the record before them. As Justice Binnie noted in R. v. Marshall, they “are handed disputes that require for their resolution the finding of certain historical facts. The litigating parties cannot await the possibility of a stable academic consensus. The judicial process must do as best it can.”3 Expert evidence can play a key role in making such findings. While addressing issues in the distant past demands flexibility in the receipt of evidence, the Supreme Court of Canada has cautioned that “there is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence”.4 Given the important role of experts in such cases, the courts’ “gatekeeping” function of determining admissibility of expert evidence provides a critical filter. Among the relevant considerations in assessing such evidence is “the distracting and time-consuming thing that expert testimony can become”.5 The purpose of this paper is to examine the rules governing the admissibility of expert evidence as applied to the kinds of historical issues raised in Aboriginal rights and title cases. Expert evidence can increase cost and lengthen trials. To advance claims resolution in the face of the dual roadblocks of costly and time-consuming litigation and a largely unsuccessful * The author is general counsel of the civil litigation section at the Department of Justice. However, the views expressed are those of the author alone.
Nov Advocate 2017
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