[para24] Prior to the commencement of dealing with the various components of this section, it is important to deal with the expert evidence called by both the Crown and the defence regarding the historical roots of a Metis populationin the Sault Ste Marie area. Mr. Long, on behalf of the Crown, made extensive submissions as to the weight that should be given to one of the defenceÌs expert witnesses.
[para25] Ms. Teillet called two experts regarding the historical aspects of this case and the Crown called one witness in reply. At the outset, let me make it clear that from an objective point of view, all three witnesses were not that far apart on most of the key issues. Obviously, each expert approached the questions from their particular field of academic interest.
[para26] Dr. A. Ray, a professor of history at the University of British Columbia, was the first witness called by Ms. Teillet. The evidence given by Dr. Ray was presented in a most informative and interesting manner. Dr. Ray's extensive research, as evidenced in his report (Exhibit 30) and his supporting documentation, illustrated a well researched and thoughtful consideration of the historical issues of this case.
[para27] The second expert called by Ms. Teillet, although well qualified, did not present his material in such a way as to inspire confidence. If this witness was the only one called by the defence, I would have been hard pressed to placegreat reliance on it. The following aspects of his evidence were troublesome:
(a) The accuracy in reference to his source material was less than one would expect from an expert with his qualifications. When the witness was directed to one such example of literary licence, his response was ÏWell, if I were to do it over again, I would break it out and IÌd have separate quotes for each. I grouped it together. Gibbard's Report is all over the place and he talks about Metis people in different sections and I was trying to put them altogether and cite only one document for [convenience], but I agree that IÌve done something there that is hard to follow and I would ... I would break them out individually and put page numbers on them. That's something that I've done inadvertently.
(b) When Ms. Christie questioned the witness on his unusual approach regarding quotations from source documents, he agreed that this was not the approach onewould use in academic work. However, he seemed to justify his format by stating that Ïhe [had not] intend[ed] this to be an academic work.Ó I would hope that an expert witness would approach his duty and obligation as a witness under oath in a quasi-criminal proceeding to be on a par with the need for accuracy in an academic paper.
(c) The witness then went through certain mental gymnastics to explain how his report was merely a guide for his evidence and but one component of the overallpackage.
(d) Another inaccurate piece of information demonstrated how the wrong factual starting point could impact on the subsequent conclusions of the witness. When the witness used January as a reference date, he then concluded that John Robertson wintered at a specific location and therefore hunted there. Unfortunately, the correct time reference should have read September. This error undermined the subsequent scenario as presented in evidence.
(e) Another error that cannot he characterized is in oversight of little weight, is the evidence surrounding the burning of a bible. The report of this incident by the expert is substantially revised through Ms. ChristieÌs thorough cross-examination to the point where the witness indicated that he would rewrite this incident. The revised version depicts a significantly different snapshot than the original evidence. The expert had difficulty agreeing that his evidence presented Ïa very different propositionÓ but he did concede that ÏI donÌt ... itÌs not very different. It is ... itÌs ... itÌs more faithful to this document, yes.Ó
(f) The witness gave evidence regarding a plan by Anderson to influence Charles Oakes Ermantinger to make the Metis move away from the area. Cross-examination regarding this evidence resulted in a couple of interesting responses from the expert witness. The first answer of note was: ÏI agree. IÌve misquoted this particular document.Ó The second statement was: ÏIt was in error yes, and I would totally revise this paragraph and rewrite it according to contents of the letter and I apologize that in the haste of preparing the report, I may have made errors and this is one of those cases, so the paragraph would be ... substantially revised.Ó
(g) The following exchange between counsel and the witness certainly taints an expert's reliability: Q. And you spoke yesterday about people who belong to the Orange Lodge recruiting people to fight at Red River and that they considered the Metis to be the enemy. A. Yes, I think I remember saying something like that. Q. Are there any documents that support the proposition that the Orange Lodge or anybody considered the Metis to be the enemy in your document set? A. Well, my mother-in-law is a family historian of Cookstown, which is a largely Protestant, Irish town in Southern Ontario and I may have been getting my information from talking to her. ThereÌs a problem in Orange Lodge in that community ... Q. I see. A. ... and it may be oral tradition.
(h) The following additional excerpts from the testimony of this particular witness have the cumulative effect of undermining his testimony: ÏIt was one of those things of expediency.Ó ÏI had limited time to prepare this.Ó ÏI didnÌt have time to obtain a copy and bring it with me.Ó I didnÌt include it in the binder because of space and time and transportability of the documentsÓ Ï IdidnÌt intend this to be an academic work. Its not something thatÌs published.Ó
[para28] It is unnecessary to further dissect the evidence of the second expert called by Ms. Teillet. Suffice it to say that the of time pressures is not an excuse for the number of errors by this witness in this case. He was presented as an expert who had prepared a report for the courtÌs consideration. This trial has been outstanding for years and the witness was retained in ample time to prepare a proper report. The witness did not preface his testimony by explaining to the court that there might be a few errors due to time constraints. It was only after counsel in cross-examination highlighted omitted documents, changed evidence, and errors that the ÎreasonsÌ for the shortcomings were put forward.
[para29] Under normal circumstances, the evidence of a witness with the aforementioned frailties would be of little or no value. However, in the case at bar, much of the evidence given by witness number two was not markedly different from Dr. Ray and Ms. Gwynneth C.D. Jones in its general support of a Metis presence in the Sault Ste Marie area.
[para30] Ms. Gwynneth C.D. Jones was called by the Crown. Her evidence
did not undermine Dr. RayÌs evidence and in fact was rather consistent
with it.
|
|
|||
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|||