The Supreme Court of Yukon ruled on the admissibility of two expert reports tendered by Canada. The Court held that a report prepared by Dr. Paul G. McHugh was inadmissible in its entirety, but allowed the report of Dr. Theodore Binnema to be entered into evidence subject to some deletions.

The trial judge had made a mid-trial ruling in September 2014 on the admissibility of Dr. McHugh’s report, with reasons to follow. It was noted that, in the first phase of the trial in 2011, Dr. McHugh had been qualified as an expert legal historian to provide opinion evidence in the areas of the historical, political, legal and social context surrounding the creation of the Rupert’s Land and North-western Territory Order (U.K.) on 23 June 1870 and the Crown-Aboriginal relations of the period: 2011 YKSC 87 and 2012 YKSC 4. In May 2013, the Yukon Court of Appeal overturned the judgment of the Supreme Court on a “threshold issue” of justiciability, due to the procedure followed by the trial judge, but did not deal with the issues of Dr. McHugh’s qualifications or the admissibility of his evidence: 2013 YKCA 6. Gower J. held that the Court of Appeal decision in 2013 did not overturn the admissibility of Dr. McHugh’s earlier evidence, and the first report that had been tendered in 2011.

In September 2014, the Court held that the second report of Dr. McHugh was inadmissible, but it was appropriate to recall Dr. McHugh to respond to criticisms of his methodology contained in an article by Professor McNeil. His evidence would be limited within that sphere.

The mid-trial ruling in regards to Dr. McHugh’s second report was reported at 2014 YKSC 49, and summarized in our e-Newsletter of 20 November 2014.

The trial judge released his reasons on the admissibility of Dr. McHugh’s evidence, as well as the expert report of Dr. Binnema, on 5 November 2014.

Canada had tendered the second report of Dr. McHugh prior to the recommencement of the trial in 2014.
Due to the uncertainty about the status of Dr. McHugh’s first report and earlier testimony, the 2014 report covered much of the same ground as the evidence tendered in 2011.

The Court referred to the Mohan criteria for the admissibility of opinion evidence, as well as the two-step process suggested by the Ontario Court of Appeal in R. v. Abbey, 2009 ONCA 624. Following the Abbey approach, the trial judge must first consider whether all of the Mohan criteria have been satisfied and then, pursuant to the “gatekeeper function” of the trial judge, determine whether the probative value of the evidence outweighs the potential costs of admitting it.

The Court held that the McHugh report was relevant since the original legislative intention is part of the overall exercise of statutory interpretation. The report would also be “necessary” in the sense that the historical context is beyond the expertise of the court. However, employing the “gatekeeper” role, Gower J. determined that the 2014 McHugh report should be excluded as not being necessary. The Court already has a “good deal of evidence” from Dr. McHugh, in both his first report and during his extensive testimony in the first phase of the trial. The 2014 report may be “helpful”, but it is not necessary. Gower J. noted the significant overlap between the two reports. The additional details in the 2014 report were not sufficient to justify its admission. Gower J. also noted the limited number of trial days, and commented that Dr. McHugh “is not a man of few and simple words”. Allowing the second report into evidence would unduly protract and complicate the trial.

The Court, however, ruled that Dr. McHugh could testify in response to an article by Professor McNeil submitted by the plaintiff. This article was a direct challenge to the reasoning and methodology of Dr. McHugh. Gower J. commented that it would have been more appropriate for the plaintiffs to call Professor McNeil as a witness to allow cross-examination by Canada. In the circumstances, it was “fair” to allow Dr. McHugh an opportunity to testify in response.

Canada sought to qualify Dr. Binnema as an expert historian able to research and interpret historical documents related to the history of indigenous peoples in western North America and the history of Indian policy. The focus of his evidence would be on the facts surrounding the 1870 Order and its relationship to the development of treaties in Canada. The plaintiff took no issue with Dr. Binnema’s qualifications. They sought to exclude Dr. Binnema’s report and evidence on the basis that it was not relevant or necessary.

As with the McHugh report, the Court rejected the plaintiff’s submissions that the Binnema report was not “relevant”. The intentions of the Canadian and Imperial Parliaments in the late 1860s, as well as the views of individual actors such as George-Etienne Cartier, may shed some light on how the 1870 Order should be interpreted today.

Gower J. also stressed the importance of an expert’s knowledge and understanding of the context of historical documents in assisting the court. He referred to comments of Mr. Justice Vickers in Tsilhqot’in First Nation v. British Columbia, 2004 BCSC 1237, Garson J. (as she then was) in Ahousaht Indian Band v. Canada, 2008 BCSC 768, and McEachern C.J.B.C. in Delgamuukw on the role of the expert in assisting the Court to understand the meaning of historical documents. He stated:

In short, it is my view that Dr. Binnema’s report is necessary in this trial because it is not possible for me to otherwise understand and evaluate the historical documents and other materials, or to understand the context in which they were written, without his expert assistance.

The Court, however, found that certain passages in the Binnema report concerned the contemporary legal effect of the “equitable principles undertaking” in the 1870 Order. As it is impermissible for an expert to opine on questions of domestic law, those passages were excised from the report being admitted into evidence.

The Court also rejected the plaintiff’s arguments relating to the application of the Daubert test to expert evidence. The Daubert test, as adopted by the Supreme Court of Canada in R. v. J.-L.J., 2000 SCC 51, concerns the reliability and admissibility of novel scientific evidence. Such an analysis does not apply to a recognized professional discipline such as history.

The Court therefore ruled that the second McHugh report was inadmissible, but that Dr. Binnema’s report will be admitted subject to certain passages being excised.


Scott Kerwin


Aboriginal Law