Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
Robert Bidal, Michael Bidal, Gilles Bigras, Marc Bigras, Martin Bigras, Serge Bigras, Shawn Bigras, Guy Brazeau, Rheal Bureau, William Brown, Natasha Cormier, Mona Denomme, Leonide Ducharme, Denis Dupont, Claude Dupuis, Daniel Fournier, Gaetan Gauthier, Sharon Gauthier, Eric Genereux, Roch Genereux, Clifford Landry, Edmond Landry, Ghyslaine Landry, Kenneth Landry, Luc Landry, Andrew Larabie, Gerald Larabie, Roland Larabie, Renee Latreille, Denis Lefebvre, Jean-Guy Levesque, Sharon Noganash, Alain Plante, Daniel Plante, Francoise Plante, Jean-Luc Plante, Maurice Plante, Rodrigue Plante, Shane Plante, Stephanie Plante, Marcel Rollin, Theodore Savarie Jr., Eugene Serre, Gerard Serre, and Roch Prevost;
-and-
Jesse Goulais, Dyland Commanda, Christopher Commanda, Raeford Commanda, Kevin Young, Greg Commanda, and Lorne Stevens.
Before: Justice E. J. Lainevool
Heard on: May 11 & 12, 2021
Reasons for Judgment released orally on: May 13, 2021
Counsel: Paul Gonsalves and Scott Dunsmuir........................................... Counsel for the Crown Michael Swinwood................................................................... Counsel for the Defendants
Ruling on a Voir Dire Regarding Expert Qualification Of Dr. Sidney Harring
Introduction
1The defendants seek to have Dr. Sidney Harring qualified as an expert in relation to the existence of the Amikwa Nation in the territories in which the hunting and fishing charges in this matter arose.
2Counsel for the Crown opposes the qualification of Dr. Harring as an expert witness in this area.
3This is the second voir dire concerning expert witness qualification in this matter and so naturally, there is some overlap in the Court’s analysis with the previous decision of the Court.
4As indicated in the previous decision one of the issues in this proceeding is whether the defendants are members of the Amikwa Nation and whether such membership provides a constitutional exemption from the Provincial regulatory offences which are the core of this proceeding.
Preliminary Issue – Exhibits on the Voir Dire
5Prior to the original date for the commencement of trial, in May 2020, the Court was provided with copies of two expert reports and corresponding curriculum vitae for each report author.
6In mid-April of this year a further expert report of Dr. Harring was provided to the Court.
7During this voir dire, over the course of the second and third day of trial, the Court was not asked to, and did not, mark the reports as Exhibits, clearly this was an oversight.
8Dr. Harring’s C.V. shall be marked as Exhibit A1.
9The October 2015 Report shall be marked as Exhibit A2.
10The April 2021 Report shall be marked as Exhibit A3.
11Further, the Crown’s Cross Examination Book which was provided in an electronic format, was previously marked as Exhibit 1 on the voir dire, it will now be marked as Exhibit B on the voir dire.
12Included in Exhibit B, along with academic articles, book excerpts and other primary and secondary source material, is another version of Dr. Harring’s report authored in November 2014.
Dr. Sidney Harring
13Dr. Harring has an educational background in sociology and law. He obtained a Juris Doctor degree and was admitted to the practice of law in Madison, Wisconsin January 1972. Dr. Harring earned his Ph.D. in Sociology in March 1976 with specialization in sociology of law and criminology.
14Dr. Harring worked for 30 years as a professor of law at schools in Canada, the United States, and overseas. His area of teaching focussed on Human Rights Law with an emphasis on indigenous rights as human rights.
15Dr. Harring authored two reports during his involvement in this proceeding, and a further report prior to his involvement in the matters before this Court.
The Special Nature of Section 35(1) Claims
16As in the previous voir dire, the defendants urge the Court to rely on the unique character of aboriginal claims when considering Dr. Harring’s qualifications.
17In the Supreme Court of Canada’s decision in Delgamuukw v. British Columbia, [1997] S.C.R. 1010, a special approach to the rules of evidence was acknowledged in Section 35(1) aboriginal claim cases.
18At paragraph 81 of that decision, the Court asserted:
The justification for this special approach can be found in the nature of aboriginal rights themselves. I explained in Vanderpeet that those rights are aimed at the reconciliation of the prior occupation of North America by distinctive aboriginal societies with the assertion of Crown sovereignty of Canadian territory. They attempt to achieve that reconciliation by “their bridging of aboriginal and non-aboriginal cultures”. Accordingly, “a court must take into account the perspective of the aboriginal people claiming the right…while at the same time taking into account the perspective of the common law” such that “true reconciliation will, equally, place weight on each”.
19The special approach, while necessary the Court confirmed, ought not strain the Canadian legal and constitutional structure.
20Claims pursuant to Section 35(1) will, by their nature, rely on a different class of evidence. Reliance on a different kind of evidence however cannot displace the developed jurisprudence concerning expert evidence.
The Admissibility of Expert Evidence
21In Canadian jurisprudence, and binding upon this Court, the test for admissibility of expert evidence has developed most recently through three decisions, two from the Supreme Court, and one from the Ontario Court of Appeal:
- R. v. Mohan, [1994] S.C.J. No. 36
- White Burgess Langille Inman v. Abbott & Haliburton Co., [2015] S.C.J. No. 23
- R. v. Abbey 2017 ONCA 640, [2017] O.J. No. 4083 (often referred to as Abbey #2)
22While all three of these decisions were significant in the development of the current test for the admissibility of expert evidence, the decision in Abbey #2 sets out the law in its current formulation commencing at paragraph 47:
47 The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach, first suggested in Abbey #1: the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge's discretionary gatekeeper role. Each stage has a specific set of criteria.
48 The test may be summarized as follows: Expert evidence is admissible when:
(1) It meets the threshold requirements of admissibility, which are:
a. The evidence must be logically relevant; b. The evidence must be necessary to assist the trier of fact; c. The evidence must not be subject to any other exclusionary rule; d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is: i. Impartial, ii. Independent, and iii. Unbiased. e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose, and
(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:
a. Legal relevance, b. Necessity, c. Reliability, and d. Absence of bias.
23If the proposed expert evidence is unable to meet the threshold requirement for admissibility in step one, it must be excluded.
24If the proposed expert evidence does meet the threshold requirements the trial judge then must perform a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission.
25Justice Laskin, in Abbey #2, also set out guidance on the gatekeeper role of trial judges. Commencing at paragraph 53:
53 First, recent case law, including White Burgess itself, has emphasized the importance of the trial judge's gatekeeper role. No longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact. As Cromwell J. said in White Burgess, at para. 20"[t]he unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge's gatekeeping role". Cromwell J.'s observation echoes the point Binnie J. made in the earlier Supreme Court of Canada decision R. v. J.-L.J. … at para. 28: "The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility."
54 Second, case law since Mohan has also emphasized the importance of the reliability of the evidence to its admissibility. In Abbey #1, at para. 87, Doherty J.A. pointed out that at the gatekeeper stage of admissibility the reliability of the proposed expert evidence is central to its probative value and thus to the benefits of admitting it. ...
55 The third and final point is that in White Burgess, at para. 45, Cromwell J. resolved a debate in the case law and held that an expert's lack of impartiality and independence and an expert's bias go to the admissibility of the expert's evidence as well as to its weight, if admitted. At the admissibility stage these qualities are relevant to the threshold requirement of a properly qualified expert, and they are again relevant at the gatekeeper stage. Cromwell, however, did point out at para. 49 of his reasons that rarely will a proposed expert's evidence be ruled inadmissible for failing to meet this threshold requirement.
26It is these principles which must guide this Court’s consideration of Dr. Harring’s proposed evidence.
Threshold Admissibility
Logical Relevance
27The defendants argue that they are exempt from the regulatory laws governing the fishing, hunting and other activities that are at issue in the offences before the court, or at a minimum that they have a status which would modify how those laws would apply to them.
28This argument is based upon the assertion that they belong to the Amikwa Nation and that the Amikwa Nation has historically occupied the lands and waters upon which the activities at issue took place.
29Dr. Harring’s reports examine the existence of the Amikwa Nation and their territory.
30Neither party argued that the information Dr. Harring would testify to is not logically relevant.
31That is, whether the defendants are members of the Amikwa Nation and have historically occupied the lands and waters upon which the hunting and fishing activities relates to an issue at trial.
32Dr. Harring’s evidence is logically relevant to an issue at trial.
Necessary to Assist the Court
33Expert evidence must meet the threshold requirement that the evidence is necessary to assist the trier of fact.
34Is the information about which the expert would testify outside of the experience and knowledge of a judge or jury such that the finder of fact would need the expert evidence? It is not sufficient that the expert evidence would be helpful.
35The defendants assert that they are members of the Amikwa Nation. The Amikwa Nations’ membership, territory and historical connection to the lands and water in the area at issue is outside of the knowledge of the Court.
36The Court would require expert evidence to determine such issues as membership in and the territory of the Amikwa Nation.
Absence of an Exclusionary Rule
37Counsel for the Crown argued that Dr. Harring’s evidence is barred by an exclusionary rule. Specifically, that in both of Dr. Harring’s reports, he provides opinion on domestic Canadian law.
38The expert reports do contain comments made by Dr. Harring about Canadian law. Dr. Harring’s perspective is that he was expressing scholarly opinion.
39The opinions expressed in some portions of Dr. Harring’s reports appear to provide opinions on questions of domestic law. However, the Court would not exclude Dr. Harring’s evidence on this basis.
Properly Qualified Expert
40A properly qualified expert is subject to the requirement that the witness be willing, and able, to fulfill the expert’s duty to the Court. To provide impartial, independent, and unbiased evidence.
41The Court’s assessment of these characteristics is more than simply receiving the proposed expert’s answer that they are willing and able to fulfill a duty to be impartial, independent and unbiased. The Court’s assessment must encompass the expert’s entire involvement in the matter.
42A further review of the principles enunciated in White Burgess will guide the Court in the final step of the threshold admissibility assessment and during the gatekeeping analysis.
43Commencing at paragraph 24 Justice Cromwell writes:
24 At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the "reliability versus effect factor" while in J.-L.J., Binnie J. spoke about "relevance, reliability and necessity" being "measured against the counterweights of consumption of time, prejudice and confusion". Doherty J.A. summed it up well in Abbey, stating that the "trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence".
25 With this delineation of the analytical framework, we can turn to the nature of an expert's duty to the court and where it fits into that framework.
D. The Expert's Duty to the Court or Tribunal
26 There is little controversy about the broad outlines of the expert witness's duty to the court. As Anderson writes"[t]he duty to provide independent assistance to the Court by way of objective unbiased opinion has been stated many times by common law courts around the world"…
27 One influential statement of the elements of this duty are found in the English case National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd's Rep. 68 (Q.B.) . Following an 87-day trial, Cresswell J. believed that a misunderstanding of the duties and responsibilities of expert witnesses contributed to the length of the trial. He listed in obiter dictum duties and responsibilities of experts, the first two of which have particularly influenced the development of Canadian law:
Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ...
An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise ... An expert witness in the High Court should never assume the role of an advocate.
Impartial
44Black’s Law Dictionary defines impartial as: Favoring neither; disinterested; treating all alike; unbiased; equitable, fair, and just.
45In his evidence, during cross examination, Dr. Harring acknowledged that his strength is being posed problems and finding answers to those problems.
46Dr. Harring acknowledged that as a human rights lawyer he approaches his writing about aboriginal people from a position of empathy. He did acknowledge that one has to always strive to be objective in one’s work.
Independent
47Independent is defined in Black’s as: not dependent; not subject to control, restriction, modification, or limitation from a given outside source.
48There was no evidence called during the voir dire that Dr. Harring was subject to control in the course of his drafting of the Reports in issue.
49There were, it is acknowledged, modifications to Dr. Harring’s Reports between the 2014, 2015 and 2021 versions. Many of the modifications would be expected in the evolution of such a report.
50Dr. Harring did, however, acknowledge that the inclusion of a number of appendices in the 2021 report were inserted into his work not by him.
51Although he provided an explanation for this and described it as merely a clerical task this fact raises issues of concern to the Court with respect to independence.
Unbiased
52Black’s defines bias as: Inclination; bent; prepossession; a preconceived opinion; a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side.
53Obviously, unbiased is the opposing condition: not inclined, not preconceived or predisposed.
54Dr. Harring testified that he met Mr. Swinwood between 12 and 15 years ago when he contacted Dr. Harring to talk about, in his words, Indian Law. Dr. Harring described their relationship as professional. He testified that they had dinner together with each of their spouses at a conference about 8 years ago.
55Dr. Harring acknowledged that he had been to Mr. Swinwood’s office in Ottawa a few times, that they had sushi once, and that when he was first introduced to Stacey McQuabbie, it was Mr. Swinwood who transported him for that visit. He stayed with Mr. Swinwood in his home either before or after the visit with Mr. McQuabbie.
56The Court heard that Dr. Harring’s visit with Mr. McQuabbie was for two or three days during which he was welcomed into Mr. McQuabbie’s home.
57Dr. Harring testified that staying in the homes of community members in the First Nations communities he has visited is the norm; there are no hotel accommodations in many of these communities.
58Stacey McQuabbie provided Dr. Harring with his body of research about the Amikwa Nation.
59In re-examination Dr. Harring was asked if he had ever heard of the Amikwa before he met Messrs. Swinwood and McQuabbie. He had not.
Analysis – Properly Qualified Expert
60The November 2014 report authored by Dr. Harring represents his first involvement in a proceeding that relates to the Amikwa Nation. He candidly testified that he had never heard of the Amikwa Nation prior to his first introduction to Stacey McQuabbie.
61The starting point, therefore, for Dr. Harring’s research in that matter is Stacey McQuabbie’s research.
62Dr. Harring acknowledged that his research and the reports prepared during his involvement with matters involving the Amikwa Nation rely heavily on secondary sources.
63Dr. Harring testified that historical documents must always be contextualized for use. Although Dr. Harring acknowledged the necessity of contextualization, in respect of the October 2015 Report, 37 of the 40 source documents requested by Counsel for the Crown were never provided.
64Dr. Harring was unable to provide an explanation for the fact that despite repeated requests no source documents were provided to Counsel for the Crown for the 2021 Report.
65Dr. Harring repeatedly referred to the lack of financial resources for this research as a hinderance to fulsome primary source consultation in his work.
66Against this backdrop, is it possible to find that Dr. Harring’s expert opinion is impartial, independent and unbiased?
67As noted previously, these attributes are not based on the intentions, honesty or personal characteristics of the witness. They are based on an assessment of facts and evidence.
68Dr. Harring is a scholar with an impressive body of research and publications.
69Dr. Harring did not have knowledge of the Amikwa Nation prior to meeting Stacey McQuabbie.
70He has no prior research experience tracing first nation communities from, or before, the time of contact in North America.
71During cross examination, Dr. Harring agreed that throughout all three of his reports in this matter there are statements of historical fact which are not attributed to a source.
72A review of the 2014 and 2015 reports reveals that there are five primary source documents cited. Dr. Harring’s explanation for his failure to consult more primary sources in the research for his report was that he was working without remuneration, or pro bono.
73The last paragraph of page two of Dr. Harring’s November 2014 report includes the following qualification:
This report must be taken to be preliminary because these questions are difficult both because of colonial dislocation, over the course of almost four hundred years of history, but also because they require extensive primary research, which is very expensive and will take a great deal of time.
74Although Dr. Harring acknowledged no significant primary source research was conducted between the 2014 and 2015 reports, the follow up report in October 2015 does not contain a similar caveat.
75Despite the lack of qualifying statement in the October 2015 report, Dr. Harring acknowledged that the first 26 pages, with few exceptions, are a copy of the November 2014 report. He was unable to explain why a similar qualification was not included in the October 2015 report.
76During another exchange in the course of cross examination Dr. Harring’s reliance on the Handbook of Indians of Canada was discussed. Page 20 of the Handbook is referenced in footnotes 1 and 21 of the October 2015 report for the definition of Amikwa:
Amikwa (from amik, ‘beaver). An Algonquian tribe found by the French on the N. shore of l. Huron, opposite Manitoulin id. Where they were identified in the Jesuit Relations at various dates up to 1672.
77Dr. Harring agreed that this source does not locate the Amikwa along the French River as indicated in his report. When pressed further that throughout all three reports Dr. Harring cited no source that located the Amikwa in the area indicated in his reports Dr. Harring responded “Apparently not”. He agreed that he would be obligated to remove that footnote from his report.
78In the November 2014 report, top of page three, Dr. Harring writes:
In the first French map to locate Indian peoples, the famous “New France” map dated about 1640, the Amikwa are clearly marked as living there as, “les Amicoue” based, apparently, on several different accounts from the Jesuit Relations.
79Counsel for the Crown challenged not only this statement based on the Handbook of Indians of Canada as indicated above but pointed out that Dr. Harring included a 1632 map in his 2021 report which clearly contradicts the above passage.
80During an exchange concerning page 44 of Dr. Harring’s April 2021 report which contains a copy of a 1641 Nouvelle France map Counsel for the Crown directed the witness to the location indicated for the Amikwa – indicated as Eslovatarionon, an Iroquian word for Beaver People – in response the witness said “The maps were added, I didn’t put the maps in.”
81The exchange following this response concerned the Court.
82Dr. Harring acknowledged his responsibility for the entirety of the report, however, he offered varied explanations for the inclusion, in a report authored by him and submitted to the Court as his work, of materials that he did not carefully review.
83In light of Dr. Harring’s indication that he was unfamiliar with the Iroquian word for the Amikwa, Counsel for the Crown pressed him on his familiarity with the other source materials included in his report: he replied that he believed he’d seen them all.
84Dr. Harring amended this statement the following morning when cross examination resumed indicating that he had seen all of the maps and asked that they be appended to his report.
85Dr. Harring acknowledged that throughout the three reports that when he included quotes from an “Amikwa person” those are references to information received from Stacey McQuabbie.
86Dr. Harring was asked a series of questions about the information received from Mr. McQuabbie that he relied upon.
87Dr. Harring did not assess the reliability of the information received other than his statement that, in general, he finds Mr. McQuabbie honest and resourceful.
88An assessment of the honesty, or credibility, of Mr. McQuabbie is distinct from an assessment of reliability, or accuracy, of the information that Mr. McQuabbie is conveying. It is the reliability of information that an expert must discern in their analysis in order to provide assistance to the Court.
89On page 24 of the April 2021 report, Dr. Harring writes:
From this point on I rely on Amikwa oral history as told by Stacy Mcquabbie [sic] and developed in his affidavit of May 7, 2015, together with numerous exhibits.
A quarter of Dr. Harring’s report relies entirely on information received from Stacey McQuabbie whose information, Dr. Harring acknowledged, was accepted without critical examination.
90The cross examination of Dr. Harring concerning the April 2021 report raised additional prescient issues.
91Dr. Harring acknowledged that the April 2021 report was intended to be a reply to the expert report that was prepared at the request of Counsel for the Crown.
92In this report Dr. Harring included discussion about Section 25 of the Canadian Charter of Rights and Freedoms [1].
93Dr. Harring conceded that the Crown expert report did not raise Section 25.
94Dr. Harring acknowledged that he has not previously written about, or studied, Section 25 of the Charter and the inclusion of the discussion in his April 2021 report was at the behest of Mr. Swinwood.
Conclusion – Properly Qualified Expert
95A properly qualified expert has specialised knowledge in the area of expertise and must acknowledge and carry out a duty to the Court to provide unbiased evidence.
96Dr. Harring had never studied the Amikwa Nation prior to his engagement in this, and a related, proceeding. Indeed, he testified that prior to meeting Stacey McQuabbie he had never heard of the Amikwa Nation.
97Dr. Harring acknowledged that the starting point for his research in this matter was receipt of Stacey McQuabbie’s research.
98Significant portions of all three of Dr. Harring’s reports, and a full quarter of the 2021 report, rest entirely on information received from Stacey McQuabbie.
99Further, the resources consulted beyond Mr. McQuabbie’s research have not been carefully relied upon as indicated by the clear contradictions between the source documents and the reports prepared by Dr. Harring.
100With reference to Justice Cresswell’s obiter comments in National Justice Compania about the duties and responsibilities of experts:
Is Dr. Harring’s evidence the independent product of him, uninfluenced by the litigation?
101The Court is unable to conclude that it is.
Is Dr. Harring able to provide independent assistance to the Court by way of an objective unbiased opinion in relation to matter within his expertise?
102The Court is not able to conclude that that is the case.
103Dr. Harring’s evidence is incapable of meeting the threshold requirements for admissibility.
104Does the admission of Dr. Harring’s evidence outweigh its potential risks?
Risk Benefit Analysis
Legal Relevance, Necessity, Reliability and Absence of Bias
105An analysis of the probative value of Dr. Harring’s evidence contrasted with the prejudicial effect, again, weighs against receipt of his evidence.
106The underlying problems in the various reports prepared by Dr. Harring will not assist the Court in its fact-finding mission as their reliability has not been established.
107The evidence of Dr. Harring, as indicated in the threshold analysis, has not been subjected to the rigours expected of an expert opinion. There is an absence of critical assessment of both the primary and secondary source material and of the oral history relied upon.
108The primary source materials, in the minimal references to such materials, were not accurately referenced in the reports. Rather the Handbook of Indians of Canada, supports an opposing conclusion to Dr. Harring’s ultimate conclusion about the historical location of the Amikwa Nation.
109It is a significant concern that the source of much of the information Dr. Harring relied upon is entirely based on information received from Stacey McQuabbie.
110Mr. McQuabbie is not a disinterested party in these proceedings. It cannot be presumed that research provided by an interested party is neutral and balanced.
111Neutrality and balance are the qualities the Court requires from experts who are qualified to give evidence about specialized information.
112This is one of the rare circumstances where a proposed expert’s evidence must be ruled inadmissible for failing to meet the threshold admissibility requirement and would, had threshold admissibility been met, be excluded upon application of the gatekeeper role of the Court.
113On an analysis of all of the evidence heard during this voir dire the Court is unable to qualify Dr. Harring as an expert in the existence of the Amikwa Nation and the territory of the Amikwa Nation.
Released orally: May 13, 2021
Justice E. J. Lainevool
1Being Part 1 of the Constitution Act, 1982