Page 24

Nov Advocate 2017

822 THE ADVOCATE VOL. 75 PART 6 NOVEMBER 2017 treaty negotiation process, a recent Advocate article has proposed an impartial non-judicial body for mapping Aboriginal title areas.6 Such innovations may assist in finding a way forward. To the extent that litigation will be relied on as an alternative for resolving these disputes, expert evidence which is tailored to conform with the requirements set out by the courts can contribute to a more efficient and effective resolution process. RULES OF ADMISSIBILITY OF EXPERT EVIDENCE The Supreme Court of Canada recently held: “the expert evidence analysis is divided into two stages. First, the evidence must meet the four Mohan factors: (1) relevance; (2) necessity; (3) absence of an exclusionary rule; and (4) special expertise. Second, the trial judge must weigh potential risks against the benefits of admitting the evidence”.7 These factors will be discussed below, albeit in a slightly different order. (a) Necessity—Assisting the Trier of Fact Under the Mohan framework, “if on the proven facts the judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary”.8 The concern is “that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial’s becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.”9 Where witnesses are not available to provide direct evidence on the events in question, a factual chronology must be knitted together from archival or other records, travel logs, newspaper clippings or other accounts. Texts and historical treatises may provide secondary sources of information. Oral history evidence may also be available. In order to make sense out of a large body of material, lawyers and courts often seek the assistance of expert witnesses: historians, anthropologists, ethno-historians and others. But where the role played by the expert witness is simply to compile and to summarize what is stated in other otherwise admissible sources, does this pass the “necessity” test? On occasion, the courts have said that it does not. In Fairford First Nation v. Canada (Attorney General), an action concerning alleged breaches of fiduciary duty by the federal Crown in respect of the flooding of reserve lands in Manitoba,10 Rothstein J. (then a trial judge) noted that much of a proffered expert report merely repeated or summarized evidence of factual witnesses. He concluded that there was “nothing technical” about the information in the report “that requires expert evidence to enable a judge to appreciate the matters raised”,11 and held that the evidence failed to meet the necessity requirement.12


Nov Advocate 2017
To see the actual publication please follow the link above