Cowichan Tribes v Canada (AG), 2019 BCSC 1922

Indigenous peoples’ claims require flexibility in order to be fairly adjudicated, but that is not a blanket admissibility of evidence. As with oral history, proving colonial documents has similar difficulties and should only be submitted following an assessment of their reliability.

Indigenous Law Centre
Indigenous CaseWatch Blog

The plaintiffs seek declarations related to Aboriginal title to lands along the south shore of Lulu Island in the City of Richmond. They also claim fishing rights as the Cowichan people had a semi-permanent fishing village called Tl’uqtinus along the south arm of the Fraser River. There is heavy reliance on oral history and hearsay evidence contained in thousands of historical documents and on expert evidence to provide an opinion on the nature and character of the occupation by the Cowichan peoples in the past.

The plaintiffs submit that the defendants improperly objected to the admissibility of the documents. They submit that all of the documents should be admissible for the prima facie truth of their contents, leaving the question of reliability to be considered when assessing the ultimate weight given to the documents. The plaintiffs acknowledge that hearsay is presumptively inadmissible, however, in Aboriginal rights claims under s 35 of the Constitution Act, 1982, the rules of evidence should be broad, flexible and applied purposively to promote truth finding and fairness for plaintiffs faced with having to prove facts across a gulf of centuries (Mitchell v MNR, [2001] 3 CNLR 122 [“Mitchell”]).

Admitting a document into evidence for prima facie truth of its contents does not bind the court to the contents of the document. In some circumstances, however, hearsay evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding (R v Khelawon, 2006 SCC 57 [“Khelawon”]). To address this, there have been common law exceptions to the rule against hearsay and the Supreme Court of Canada [“SCC”] developed the principled approach employing a more flexible, case-by-case approach to assessing admissibility. Under this principled approach, hearsay can be admitted if the party tendering it establishes on a balance of probabilities that the twin criteria of necessity and threshold reliability are satisfied (Khelawon). The trial judge acts as a gatekeeper to protect trial fairness and the integrity of the truth-seeking process by protecting against the admission of unreliable evidence (R v Bradshaw, 2017 SCC 35).

In regards to hearsay in Indigenous claims, the SCC recognized the need for a flexible adaption of the traditional rules of evidence in Aboriginal claims cases, but made it clear that the rules of evidence are not to be abandoned. The flexible approach to evidence does not mandate blanket admissibility, and the threshold for reliability, while not high in Aboriginal claims cases, does continue to exist (Mitchell). Historical Aboriginal claims and rights cases have inherent evidentiary challenges. Necessity is almost automatically met given that these cases rely heavily on ancient documents and hearsay evidence of the deceased (Mitchell; Delgamuukw v British Columbia [1998] 1 CNLR 14 (SCC); Tsilhqot’in Nation v British Columbia, 2014 SCC 44).

That assessment may be fairly automatic if the document falls within certain categories, such as public documents, or official communications between persons responsible for stewardship of government. The court can rely on the evidence of experts to provide it with the information necessary to conduct a reliability assessment. The fact that an expert relies on a document does not automatically establish reliability of the document for the court, but it is evidence that the expert finds the document to be reliable. Courts need the assistance of experts to evaluate and understand historical documents. One of the difficulties in this case is that no living person can be called to give eye witness evidence of what was happening in the claim area before, at the time of, and for many decades after first contact with European settlers (Tsilhqot’in Nation v British Columbia, 2004 BCSC 1237 [“Tsilhqot’in BCSC”]).

It is abundantly apparent the parties must rely on historical documents, oral history and traditions, ethnography and archaeology in the proof of their cases. The meaning of documents is not always self-evident and can only be understood in context. That is particularly true of historical documents where it cannot be properly evaluated until the court knows who wrote it, for whom it was written, and, most importantly, why it was written (Tsilhqot’in BCSC). The distinction between threshold reliability and ultimate reliability remains, and the trial judge still must act as a gatekeeper to keep the record free from unreliable hearsay and to protect the fairness and integrity of the trial.

R v Barton, 2019 SCC 33

Appeal allowed in part. New trial on unlawful act manslaughter ordered. As an additional safeguard, juries should be instructed in a way that counters potential biases, prejudices, and stereotypes against Indigenous persons—particularly Indigenous women and girls, as well as those who perform sex work. 

Native Law Centre CaseWatch Blog

Bradley Barton was charged with first degree murder in the death of Cindy Gladue, an Indigenous woman who was a sex worker. She was found dead in the bathroom of the accused’s hotel room as a result of blood loss from an 11 cm wound in her vaginal wall. At trial, the Crown put forth the theory that the accused used a sharp object to create the wound with intent to seriously harm or kill her. On the alternative, the accused committed the lesser and included offence of unlawful act manslaughter by causing her death in the course of a sexual assault.

The accused admitted that he caused her death, but did not use a sharp object and claimed it was a non-culpable accident. He claimed that Ms. Gladue consented to the sexual activities as it was a commercial transaction, or at least he honestly believed that she did. The accused did not submit an application under ss 276.1(1) and 276.1(2) of the Criminal Code to adduce evidence of the deceased’s prior sexual activity, thereby he testified at length about his previous sexual activity with the deceased. The Crown did not object nor did the trial judge order a separate hearing to consider the admissibility and permissible uses of this evidence. The jury acquitted the accused. The Court of Appeal allowed the Crown’s appeal, set aside the accused’s acquittal, and ordered a new trial on first degree murder. The accused then appealed to the Supreme Court of Canada. The Court ordered a new trial but it is to be restricted to the offence of unlawful act manslaughter, as it was not demonstrated to the majority of the Court that the acquittal for murder was tainted by reversible error.

The Court held that the trial judge erred in failing to comply with the mandatory requirements set out in s 276 of the Criminal Code. Section 276 of the Criminal Code governs the admissibility of evidence about a complainant’s prior sexual activities and the uses to which that evidence may be put. Evidence of a complainant’s prior sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity in question or is less worthy of belief. This section is categorical in nature and applies irrespective of which party led the evidence. The ultimate responsibility for enforcing compliance with the mandatory s 276 regime lies squarely with the trial judge, not with the Crown. The procedural requirements under s 276 should have been observed, and if any of the evidence was deemed admissible, a careful limiting instruction by the trial judge was essential to instruct the jury on the uses of that evidence.

Trial judges are advised to provide an express instruction aimed at countering prejudices, myths and stereotypes, especially about Indigenous women who perform sex work (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls). When jurors are sworn and empanelled, it is a task that is not easy as it requires patience, judgment, and careful analysis. It would be naïve to assume that the moment the jurors enter the courtroom, they leave their biases, prejudices, and sympathies behind (R v Williams, [1998] 3 CNLR 257 (SCC) [“Williams”]).

A carefully crafted instruction can expose biases, prejudices, and stereotypes that lurk beneath the surface, thereby allowing all justice system participants to address them head-on, openly, honestly, and without fear. Trials do not take place in a historical, cultural, or social vacuum. The Court has acknowledged the detrimental effects of widespread racism against Indigenous people within the criminal justice system (Williams; R v Gladue, [1999] 2 CNLR 252 (SCC); R v Ipeelee, [2012] 2 CNLR 218 (SCC)). With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused.

As well, the language used to refer to Ms. Gladue at trial, witnesses, Crown counsel, and defence counsel all repeatedly referred to Ms. Gladue as a “Native girl” or “Native woman”, which, by the Court of Appeal’s count, occurred approximately 26 times. While in some cases it may be both necessary and appropriate to establish certain biographical details about an individual, it is almost always preferable to call someone by their name. There may be situations where it would be appropriate for the trial judge to intervene to ensure this principle is respected.

R v Newborn, 2019 ABCA 123

Appeal dismissed. An accused is entitled to a fairly chosen representative jury, not to one with a particular composition. As well, the jury is entitled to have competing evidence on a critical issue before them.

Native Law Centre CaseWatch Blog

The Appellant was charged with murder for physically beating a man so severely that he died from the injuries two days later. The offence occurred on a train in front of other passengers, and was recorded by security cameras. The Appellant argued that the Crown could not prove the intent necessary for murder as the accused had a limited intellectual capacity with an IQ of 59 and a moderate cognitive impairment. The Appellant also challenged the jury selection process arguing that his right to a trial by an independent and impartial jury selection under s 11 (d) and (f) of the Charter had been violated, arguing that s 4(h)(i) of the Jury Act excludes persons who have been convicted of a criminal offence. This according to the Appellant is unconstitutional because it disproportionately excluded Aboriginal persons.

An accused is entitled to a fairly chosen representative jury, not to one with a particular composition (R v Kokopenance, 2015 SCC 28). The focus is on the process to select the jury, which must include the delivery of notices to citizens randomly selected from broadly based sources and the deliberate or systemic exclusion of segments of the population is not acceptable. Some limits on jury eligibility, however, are permissible.

It was concluded that the Appellant did not offer any satisfactory rational while his expert witness opinion would be admissible and beneficial to the jury, but the Crown’s rebuttal evidence on the same topic would not. While the Crown and defence experts approached the issue from slightly different perspectives, that does not reflect any error. Neither the Crown nor the defence is required to approach an issue in the way the other side frames it (R v DD, 2000 SCC 43). All of the evidence was relevant and admissible, despite its different assumptions and approaches. ­­The jury was given acceptable instructions regarding expert evidence from the trial judge.