The Provincial Court of New Brunswick ruled that an expert report tendered by the Crown, challenging the validity of a treaty made in 1725-26, was inadmissible. The parties had already filed an Agreed Statement of Facts in which the Crown admitted the validity of the 1725-26 Treaty, and allowing the expert report at this stage would constitute impermissible “case splitting”. Further, the doctrine of issue estoppel prevents the Crown from challenging the validity of the 1725-26 Treaty since the validity of the treaty had been accepted in earlier cases. The Court also held that the expert report was not proper opinion evidence, since it expressed legal opinions on matters of domestic law and the “ultimate issue”.

The accused Darren Paul had been charged with illegal logging on Crown lands pursuant to the provincial Forest Act. He is a status Indian and a member of the Maliseet people and the Woodstock First Nation. His main defence was that the 1725 Treaty of Boston, ratified in 1726, as well as a 1760 Treaty, provided a right to harvest resources for trade. He called various expert witnesses on the meaning and scope of the treaties. In the Agreed Statement of Facts, the Crown admitted that the treaties were valid and that Mr. Paul is a beneficiary of the treaties.

Following the defence’s closing of their case, the trial was adjourned to allow the Crown to file rebuttal evidence. The Crown filed the expert report of Dr. Patterson, a Professor Emeritus in History at the University of New Brunswick. Dr. Patterson opined that the Treaty of 1725-26 was “terminated by hostilities or it was overtaken (superseded) by later events and treaties”. His conclusion was that the 1725-26 Treaty was “terminated or extinguished by hostilities”.

The Court held that Dr. Patterson’s report violated the rules about rebuttal evidence and “case splitting”. The Crown had already admitted in the Agreed Statement of Facts that the 1725-26 Treaty was valid. The Crown was aware that Mr. Paul would be relying upon the 1725-26 Treaties in his defence, and that the treaty rights would be a “central point” of the trial. Allowing Dr. Patterson’s evidence would “clearly offend the rules of evidence relative to what may be presented as rebuttal evidence”. Provincial Court Judge Jackson stated:

I cannot conceive how saying on one hand that a defendant is a beneficiary of all that flows from a Treaty and then saying that the same Treaty was terminated and therefore of no force and effect can be allowed in the same trial. What benefits could flow from a Treaty that was terminated three hundred years ago?

In my view, the evidence as to the termination or extinguishment of the 1725-26 Treaties is inadmissible in this trial as such evidence would offend the rule precluding the Crown from splitting its case.

The Court held, in the alternative, that Dr. Patterson’s evidence was inadmissible on the basis of issue estoppel. The requirements for the doctrine of issue estoppel to arise are: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel was final; and (3) the parties to the judicial decision or “their privies” were the same persons as the parties to the proceedings in which the estoppel is raised.

Jackson P.C.J. held that the first two criteria are “easily met” in this case. The validity of the 1725-26 Treaty was decided in R. v. Sappier and Polches, 2004 NBCA 56 and R. v. Paul and Polches [1988], 4 C.N.L.R. 107, and those decisions were not appealed. The main question is whether the criterion of mutuality is met. The Court agreed with Mr. Paul that “all Maliseet are privies in any question or matter concerning treaties entered into by their ancestors”. Jackson P.C.J. held:

I agree with that assertion and conclude that the Applicant is a privie to the other aboriginal persons who were the subjects of the previous judicial decisions in which the validity of the 1725-26 Treaties were considered.

The Court also found that Dr. Patterson’s report was not proper opinion evidence, since it expressed legal opinions on matters of domestic law. Dr. Patterson’s comments on the meaning of prior Canadian judicial decisions have no place in an expert report. Some of his conclusions also offend the “ultimate issue” rule.

The Court therefore held that Dr. Patterson’s report, as currently drafted, was inadmissible.


Scott Kerwin


Aboriginal Law