Page 27

Nov Advocate 2017

THE ADVOCATE 825 VOL. 75 PART 6 NOVEMBER 2017 on the “ultimate issue” before the court, Gower J. held: “while Dr. McHugh makes several conclusions of fact and law … these conclusions are within the scope of his historical expertise and are provided for the purpose of assisting this Court in deciding what the intention of the Imperial Parliament was”.34 (d) A Properly Qualified Expert To be qualified to give expert opinion evidence, the witness must be “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”.35 In Fairford, an objection raised was that the field comprising “social and economic impact assessments”, “community development” and “resource development impact assessments” was not an area of expertise that had received acceptance by any court.36 Rothstein J. held, however, that “there is no finite range of topics about which an expert may testify”.37 He noted furthermore that the witness’s lack of formal training did not disqualify him as an expert.38 The court was prepared to acknowledge his expertise, but excluded his report for other reasons. In Southwind v. Canada, Justice Zinn of the Federal Court rejected a challenge to an expert opinion in the area of “cultural geography”, addressing the impact of a hydroelectric project on a First Nation community’s harvesting of fish, wild rice, hay and other resources. He held that the expert’s training as a geographer, 29 years of consulting experience and preparation of similar reports supported her expertise in this area, even though she had not published or taught extensively in the area of cultural geography.39 On the other hand, the court rejected her evidence on the value of replacement houses and structures, finding she lacked expertise on such matters of “valuation”, which the court was capable of addressing on its own.40 It has been observed that “it is only in the rare case that a successful attack can be mounted on an expert’s qualifications”.41 An example of a successful challenge involved a report purporting to summarize historical events by a Band administrative officer for whom no curriculum vitae had been tendered; the report was ruled inadmissible by the Ontario Superior Court.42 However, a deficiency in expertise will more often go to the weight assigned the evidence. Furthermore, an unsuccessful challenge may only enhance the witness’s credibility by highlighting his or her qualifications.43 The scope of a witness’s qualifications and purported expertise may, however, raise issues about whether the subject matter of the report prepared falls within that expertise. For example, in R. v. Côté, the Crown argued that the expertise of the First Nation’s witness, Dr. Parent, “was limited to the history of the Montagnais and the Attikamekws”.44 The Supreme


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