Expert evidence

2. Expert evidence In front of the Specific Claims Tribunal Me Léonie Boutin Leonie.boutin@clcw.ca Me Benoit Amyot Benoit.amyot@clcw.ca

3. Expert evidence • The rules of admissibility applicable in SCT • The rules of admissibility applicable in a court of law • Common law : • necessity in assisting the trier of fact • a properlyqualified expert • relevance • the absence of any exclusionary rule • Civil law : • necessity in assisting the trier of fact • a properlyqualified expert • impartiality AND probative value • Solution to Funding Cuts and Lack of Resources for expert evidence

4. The rules of admissibility applicable in SCT Specific Claims Tribunal Act, s. 13 : 13. (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may (a) determine any questions of law or fact in relation to any matter within its jurisdiction under this Act; (b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence; (c) take into consideration cultural diversity in developing and applying its rules of practice and procedure; and (d) award costs in accordance with its rules of practice and procedure. Powers of the Tribunal

5. The rules of admissibility applicable in SCT Exception: privilege under the law of evidence The law recognizes a number of communications as worthy of confidentiality. The protection of these communications serves a public interest and they are generally referred to as privileged. R. v. McClure, 2001 SCC 14 at para. 26

6. The rules of admissibility applicable in SCT Specific Claims Tribunal Act, at Preamble: Recognizing that It is in the interests of all Canadians that the specific claims of First Nations be addressed; Resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations; There is a need to establish an independent tribunal that can resolve specific claims and is designed to respond to the distinctive task of adjudicating such claims in accordance with law and in a just and timely manner; The right of First Nations to choose and have access to a specific claims tribunal will create conditions that are appropriate for resolving valid claims through negotiations; The Assembly of First Nations and the Government of Canada have worked together on a legislative proposal from the Government of Canada culminating in the introduction of this Act; Preamble

7. The rules of admissibility applicable in SCT • Specific Claims Tribunal Rules of Practice and Procedure General principle 2. These Rules must be interpreted and applied so as to secure the just, timely and cost-effective resolution of specific claims while taking the cultural diversity and the distinctive character of specific claims into account. Orders 3. The Tribunal may make any order that is necessary to secure the just, timely or cost-effective resolution of the specific claim. Varying , dispensing with and supplementing Rules 4. (1) The Tribunal may vary a Rule, dispense with compliance with a Rule, or supplement a Rule, when the Tribunal considers it is necessary to do so in order to secure the just, timely or cost-effective resolution of the specific claim.

8. The rules of admissibility applicable in SCT • Lac La Ronge Band and Montreal Lake Cree Nation v. Her Majesty the Queen in Right of Canada, 2013 SCTC 02 Johanne Mainville J. summed up: [29] Thus, under section 13(1)b) of the SCT Act, evidence may be admissible if it is not subject to privilege under the law of evidence. Where the Tribunal finds that the evidence is not subject to privilege, it may receive and accept that evidence whether or not that evidence or information would be admissible in a court of law. In exercising this discretion, the Tribunal may consider, but is not bound by, the rules of admissibility applicable in a court of law.

9. The rules of admissibility applicable in a court of lawCOMMON LAW VS CIVIL LAW

10. The rules of admissibility applicable in a court of law : COMMON LAW Admissibility : 4 criteria R. v. Mohan, [1994] 2 RCS 9 • necessity in assisting the trier of fact • a properlyqualified expert • relevance • the absence of any exclusionary rule

11. The rules of admissibility applicable in a court of law : COMMON LAW Admissibility criteria #1 : necessity in assisting the trier of fact • Who helps the court to understand and appreciate the fact and the evidence; B. On scientific or technical question.

12. The rules of admissibility applicable in a court of law : COMMON LAW Admissibility criteria #2: a properlyqualified expert A. Studies and experience

13. The rules of admissibility applicable in a court of law : COMMON LAW Admissibility criteria #3: relevance A. Prima facie admissible if so related to a fact in issue that it tends to etablish; • Whether it’s value is worth what it costs (impact on the trial process) :

14. The rules of admissibility applicable in a court of law : COMMON LAW Admissibility criteria #4: the absence of any exclusionary rule • Settlementprivilege; • Kahkewistahaw First Nation v. Her Majesty the Queen in Right of Canada, 2013 SCTC 3 • Propensityevidence, self-servingevidence, characterevidence;

15. The rules of admissibility applicable in a court of law : CIVIL LAW Legislation (Civil code of Québec, LRQ c. C-1991) 2843.   Testimony is a statement whereby a person relates facts of which he has personal knowledge or whereby an expert gives his opinion. To make proof, testimony shall be given by deposition in a judicial proceeding unless otherwise agreed by the parties or provided by law.1991, c. 64, a. 2843 .

16. The rules of admissibility applicable in a court of law : CIVIL LAW Admissibility : 3 criteria #1 : necessity #2 : a properlyqualified expert #3 : impartiality → AND probative value

17. The rules of admissibility applicable in a court of law : CIVIL LAW Admissibility criteria #3 : impartiality • The ability to maintain a certain distance vis-a-vis his or her client and the position that client is defending. In so doing, the involvement with the evidence must be characterized as an "objective, credible and justifiable" approach.

18. The rules of admissibility applicable in a court of law : CIVIL LAW Probative value : Legislation(Code of civil procedure, CQLR c C-25) 2845.   The probative force of testimony is left to the appraisal of the court.1991, c. 64, a. 2845 .

19. Solution to Funding Cuts and Lack of Resources for expert evidence Consider to proceed in separate stages; B. Choose your expert wisely; C. Request an order to reject the other party’s expert evidence; D. Consider to use an expert jointly commissioned by the parties