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Nov Advocate 2017

826 V O L . 7 5 P A R T 6 N O V E M B E R 2 0 1 7 THE ADVOCATE Court of Canada was unwilling to conf ine his evidence, however, particularly given that he had testif ied for the Crown in respect of the historical customs and practices of other Indigenous groups. In Hamlet of Baker Lake v. Canada (Indian Affairs and Northern Development), the fact that experts had done research and studies specif ic to the claimant group was noted by the court as a favourable consideration.45 In Ontario (Attorney General) v. Bear Island Foundation, the evidence of an expert anthropologist was given less weight by the trial judge because his expertise did not include any study of the Band at issue.46 Independence, Impartiality and Absence of Bias The adversary process may create tensions with the duty of objectivity placed on experts by the courts. It has been observed that “the pressures of the adversarial system routinely push historians toward interpretations of the past that are compressed and categorical” and which may therefore lack reliability.47 It may also be challenging for a court to f ind an objective way to assess reliability in this area because of the diff iculty in identifying a common and objectively accepted methodology for analyzing historical fact.48 In its 2015 decision in WBLI, the Supreme Court of Canada clarif ied that assessing an expert’s objectivity is central both to admissibility (as part of the “properly qualif ied expert” factor) and in the assessment of weight. The court described the “three related concepts” underlying an expert’s duty as “impartiality, independence and absence of bias”, and explained: The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced litigation. by who has retained him or her or the outcome of the It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her …49 The expert’s duty is prima facie satisf ied by a written acknowledgement by the witness, now required by most rules of court, of his or her duty to provide fair, objective and non-partisan evidence.50 A party opposing the admission of the expert’s evidence faces the burden of showing a “realistic concern”.proposed 51 Exclusion will occur “only in very clear cases in which the expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence”.52 If the case is not so clear, the court can still take this consideration into account in determining the weight to be assigned to the expert’s testimony.53 In WBLI, the Supreme Court of Canada was not prepared to f ind that the Court of Appeal had erred in admitting the evidence of an accounting f irm


Nov Advocate 2017
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