R v. Paul, 2014 NBPC 44

IN THE PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF Woodstock Citation: R v. Paul, 2014 NBPC 44 Date: 08-22-2014 Docket: 03832507 Between: Darren J. Paul, Applicant (Defendant), - and – Her Majesty the Queen, Respondent (Informant), DECISION ON APPLICATION Before: Judge R. Leslie Jackson Appearances: Maria Henheffer, Q.C. and Richard Hatchette - for the Applicant B. Bannon Morrisy - for the Respondent JACKSON, P.C.J. Introduction: [ 1 ] The Applicant (Defendant) is charged with three offences under the Crown Lands and Forests Act R.S.N.B.

C-38.1 relating to the felling, removal and possession of timber from Crown Lands. [ 2 ] At the opening of his trial Counsel filed an Agreed Statement of Facts, signed by both Counsel following which the Applicant’s Counsel read into the record at trial the said Statement of Facts agreed facts stating inter alia: 3.

Between February 14, 2012 and May 3, 2012 the Defendant Darren Paul cut down, removed and had in his possession timber from Crown Lands, being hardwood, which the Defendant had cut into semi-tree lengths or more pieces and which the Defendant sold to various individuals in the Juniper or Woodstock area, for firewood. 4. Darren Paul is a status Indian registered under the Indian Act of Canada , and is a Maliseet and a member of the Woodstock First Nation, County of Carleton, New Brunswick. 5.

The Crown admits that the issue of territoriality does not arise in the trial of the Defendant on the charges set out herein. 6. The Crown admits that the Treaty of 1725 and the ratification thereof in 1726 are valid Treaties and also that the Treaty of 1760 is a valid treaty and that the Defendant is a beneficiary of all these Treaties. 7. Mr. Paul was running his cutting operation on Crown Lands and was not authorized to be in possession of wood or timber

pursuant to the Crown Lands or Forest Act or any other Act of New Brunswick or regulations thereunder. [3] After the reception into evidence of the Agreed Statement of Facts and a Crown Grant Map showing the area in which theimpugned cutting took place (Exhibits 1 and 2 respectively), the Crown closed its case and the Defendant commenced his defence bymaking an opening statement in which his Counsel said inter alia: …The Court will hear evidence that trade was a major issue in the negotiations leading up to the signing of the 1713, 1725-1726and 1760 Treaties.

In this particular case, the Court will be asked to address the questions of what was contemplated andunderstood by the British and the Maliseet’s when they were signing those Treaties. In other words, that’s the real issue in thiscase, Your Honour, at the time those treaties were signed, because the defence is of a treaty right, what was contemplated byboth the British and the Maliseets at the time those treaties were signed.

It’s the defence’s position that it was contemplated andthat it was understood that the Maliseet would be harvesting resources, natural resources traditionally harvested… by them fortrade.” [4] The Applicant then called a number of expert witnesses including Dr. William Wicken, a Professor of History at York University,Andrea Bear-Nicholas, Chair of Native Studies at St. Thomas University, and Dr.

Simon Stern, a professor at the University of Toronto Law School with an expertise in the English language of the 18th century; all of whom spoke about either the Maliseet understanding ofthe Treaties noted above or, in the case of Dr. Stern, the meaning of certain words used in the Treaties in the eighteenth century. TheApplicant then closed his case. [5] As is usual in this type of case, the matter was then adjourned so as to allow the Crown to present rebuttal evidence in relation tothe treaty defence raised by the Applicant and for that purpose the Crown engaged Dr. Stephen E.

Patterson, Professor Emeritus inHistory at the University of New Brunswick, to provide a report and to give expert testimony. [6] Dr. Patterson prepared a report entitled “The Maliseet and their Treaties: a Century of Accommodation to British Law andPractice” which pursuant to the rules regarding the testimony of expert witnesses was given to Counsel for the Applicant. In that reportat page 5 Dr. Patterson states: “Many of the matters raised by the Defendant’s witnesses are matters of historical content and we shouldbegin with that.

I propose then to deal with the Treaty of 1725-26 by examining its content, the meaning of “lawful occasions” whenplaced in context, and the evidence of subsequent hostilities and the question of extinguishment.” Later at page 18 he says: “In myanalysis of the historical evidence, the Treaty of 1726 was terminated by hostilities or it was overtaken (superseded) by later events andtreaties …I have seen nothing to suggest that either the Maliseet or the British viewed the 1726 Treaty, as it was framed at Annapolis asthe basis for their relationship after 1760.” And later again at page 24: “My preference is to say that the 1726 Treaty was terminated orextinguished by hostilities.” [7] Following receipt of a copy of Dr.

Patterson’s report the Applicant filed a Notice of Application requesting an Order: 1. That the Crown may not call evidence concerning the validity of the 1725 Treaty or the 1760 Treaty as part of its case onrebuttal, additionally or alternatively the Crown is estopped from re-litigating the validity of the 1725 Treaty or the 1760 Treaty,those issues having already been litigated and determined by superior courts. 2. That the Crown is estopped from challenging the constitutional protection recognized and afforded aboriginal treaty rights byvirtue of

section 35 of the Constitution Act, 1982, and as established by the Supreme Court of Canada in R. v. Marshall (SCC), [1999] 3 S.C.R. 456, R. v. Badger (SCC), [1996] 1 S.C.R. 771, and R. v. Sparrow (SCC), [1990] 1 S.C.R. 1075. 3. That the Crown may not enter the expert report of Dr. Patterson dated both February 21st, 2014 and April 14th, 2014, as anexhibit in this prosecution as it offends item 1 & 2, and also is a legal brief as opposed to an appropriate historical expert report. 4. Alternatively, that any attempt by the Crown to enter the expert report of Dr.

Patterson and/or to call vive voce evidence onthese issues is an abuse of process and cannot be permitted. Position of the Parties [8] Counsel for the Applicant submitted three arguments namely: 1. The Crown cannot on rebuttal challenge the validity of the 1725-26 Treaty as it offends the rules of evidence citing McWilliamson Evidence at 21:50:10 entitled Reply evidence and the Rule against case-splitting; 2. The Crown is estopped from re-litigating the validity of the 1725-26 Treaty as it has been accepted as valid by various superiorcourts and violates the principles enunciated in R. v.

Mahalingan 2008 SCC 63; and 3. Dr. Patterson’s report is inadmissible as it contains arguments of law which is not an area in which Dr. Patterson is an expertciting The Law of Evidence in Canada, Third Edition, paragraphs 12.141-12.158. [9] Counsel for the Respondent replies that it is appropriate to consider existing decisions of the courts in a report such as the oneprovided by Dr. Patterson as the references to the cases are made only to provide context and focus for the report. Counsel also notedthat the admission as to the validity of the Treaty of 1725-26 in R. v.

Sappier and Polchies, 2004 NBCA 56 only for the purpose of thatlitigation only and that the decision in R. v. Paul and Polchies (NB KB), [1988] 4 CNLR 107 where Dickson J. ruledthat the Crown had not proven that the said Treaty was terminated by hostilities does not close the door regarding litigation of theTreaty’s validity. Analysis and Decision [10] I propose to deal firstly with the question of whether or not the Crown may call rebuttal or reply evidence suggesting that the

Treaties of 1725-26 were terminated or extinguished after having agreed at the opening of trial that: ..the Treaty of 1725 and theratification thereof in 1726 are valid Treaties …and that the Defendant is a beneficiary of all these Treaties. [11] McWilliams (Supra)sets out the general rule with respect to rebuttal evidence as being that such evidence is only admissible inexceptional cases because it clashes with the rule precluding the Crown from splitting its case.

At paragraph 21:50:80 the author states:“To be admissible in reply, the Crown must demonstrate that the evidence took on real relevance only as a result of the defence case.Unless this test is met, the evidence is inadmissible in reply, regardless of whether it was unavailable to be called during the Crown’scase in chief”. [12] It seems clear to me that at the outset of the trial, if not before, the Crown was aware that the Applicant would be relying on the1725-26 Treaties as a basis for an aboriginal or treaty right to harvest wood for sale to both native and non-native communities.

It is alsoclear that the rights which flow from that Treaty were to be a central point of the trial. It cannot seriously be asserted that the Crown wasaware of the Applicant’s reliance on the Treaties only as a result of the defence case. [13] In my view, to allow the Crown to suggest on rebuttal after the Applicant has closed his case, and particularly after making theadmission it did on the opening day of the trial, that one of the Treaties relied on was of no effect having been terminated by hostilities,would clearly offend the rules of evidence relative to what may be presented as rebuttal evidence.

I cannot conceive how saying on onehand that a defendant is a beneficiary of all that flows from a Treaty and then saying that the same Treaty was terminated and thereforeof no force and effect can be allowed in the same trial.

What benefits could flow from a Treaty that was terminated three hundred yearsago? [14] In my view, the evidence as to the termination or extinguishment of the 1725-26 Treaties is inadmissible in this trial as suchevidence would offend the rule precluding the Crown from splitting its case. [15] However, even if I am incorrect in refusing to admit the evidence on the basis set out above, I am also of the opinion that theevidence is admissible on the basis of issue estoppel. [16] In Mahalingan (Supra) McLachlin C.J.C. clearly stated that the principle of issue estoppel should be retained as part of Canadiancriminal law (par.76).

The Chief Justice identified three requirements necessary to succeed on a claim of issue estoppel saying: “[52] The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding. This requiresthe court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in theaccused’s favour in a prior criminal proceeding… To establish this, the accused must show that the question was or mustnecessarily have been resolved on the merits in the accused’s favour in the earlier proceeding.

It is not enough to show that theevidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge’sfindings or from the fact of the acquittal that the issue was in fact resolved in the accused’s favour… It should be rememberedthat we are not dealing with res judicata which focuses on the fact of acquittal, but on issue estoppel — whether a particular issuehas already been resolved in favour of the accused.…… [55] The second requirement of issue estoppel is that the judicial decision which is said to create the estoppel be final.

Findingson particular issues at trial are final, unless overturned on appeal. … [56] The third requirement of issue estoppel is mutuality — that the parties to the two proceedings at issue are the same. Whereissue estoppel is raised by the accused against the Crown, it is in complete harmony with other criminal law principles. If thesecond trial is a criminal proceeding, the parties are always the same — the Crown and the particular accused person. … [59] I conclude that issue estoppel, with the minor modification just discussed, fits well within the criminal context.

Far fromconflicting with criminal law principles, it supports concerns fundamental to the criminal law — fairness to the accused, integrityand coherence of the criminal process, and finality.” [17] In this case, the first two requirements are easily met, the issue is the same, the validity of the 1725-26 Treaties; and thedecisions in Sappier and Polchies (Supra) and Paul and Polchies (Supra) were never appealed. The only issue is the mutuality of theparties. [18] The Applicant relies on the decision of the Supreme Court of Canada in Angle v.

M.N.R. (SCC), [1975] 2 SCR248 where Dickson J. (as he then was) said at page 254: “Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [4], at p. 935, defined the requirements of issue estoppel as: …(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which theestoppel is raised ….” [19] The Applicant was clearly not the same person charged in the cases cited, but was he their privie?

Black’s Law Dictionarydefines “privies” inter alia as: “persons connected together, or having a mutual interest in the same action or thing, noting that there aresix kinds including privies in estate such as heirs to an ancestor, and privies in law such as in the estate of curtsey or dower or theincumbent of a benefice.” The Applicant suggests that all Maliseet are privies in any question or matter concerning treaties entered intoby their ancestors.

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

[ 20 ] I therefore conclude that the Crown may not, in this action, challenge the validity of the 1725-26 Treaties on the basis of issue estoppel. [ 21 ] Finally, I propose to address the question of Dr. Patterson’s report as a whole, and in particular, whether or not it is a legal brief as opposed to a report of an expert on a subject in which that person possesses the required expertise. [ 22 ] In the introduction to his report Dr. Patterson says: “I have been frequently called to give testimony as an expert witness in the courts of Nova Scotia, New Brunswick, and Newfoundland.

And in turn, this experience helped me develop a better understanding of the intersection between history and law, a subject I developed in undergraduate courses before I retired. I continue to read Canadian court decisions that address matters of aboriginal and treaty rights, primarily as a guide to the kinds of historical evidence required by the courts in such matters. My interest is in how the courts use historical evidence, and provide guidance in such “tests” to be followed by those addressing or adjudicating

section 35 claims. The following report attempts to stick to those prescribed limits. Beyond that, I am happy to leave legal inferences and determinations to those qualified to make them.” [ 23 ] The Applicant’s complaint however, is that Dr. Patterson has not done what he said he would do but has rather, in the course of his report expressed legal opinions on matters of domestic law, a subject on which courts do not permit expert testimony, and also a subject on which he is not qualified to express an opinion. [ 24 ] A review of Dr. Patterson’s report reveals a number of occasions in which he clearly expresses his view on the proper

interpretation to be given to decided cases. The following are a few examples: at page 3 dealing with a case in Newfoundland in which he testified he says: “ It was valid in its day, I argued, but it was either terminated by subsequent hostilities or superseded by subsequent treaties. Mr.

Justice Barry of the Supreme Court off Newfoundland, Trial Division, agreed… and the Court of appeal found no error in this determination.” ; at page 4 in talking about Sappier and Polchies( Supra) in which he testified he says: “The Trial Judge’s conclusion was that this gave a treaty right to the Maliseet to cut wood for personal use in the forests of their original territory in the St. John River watershed. … The Supreme Court of Canada coupled the subsequent appeal with another similar New Brunswick case, R. v. Gray .

Its decision in Sappier and Gray sidestepped the validity of the 1725 Treaty…” ; at page 10 in talking about cases involving Donald Marshall Jr. he says: “The Supreme Court has accepted that these treaties are valid, subsisting treaties for the purposes of

Section 35 of the Constitution. … In Marshall 1 , the Supreme Court of Canada indicated that the Mi’kmaq received the same treaty terms as the Maliseet.” At page 12 he says: “Nothing above is meant to detract from aboriginal rights already well-established as law in our time.” ; and finally at page 31 he says: “The Supreme Court of Canada’s handling of Sappier and Polchies and Gray sidestepped the treaty-rights claim by ruling that cutting wood on Crown Lands for personal use was an aboriginal right.

In the present case, Defendant Paul has revived the treaty rights claim to support his harvesting of trees for commercial sale as firewood. … These issues were partially canvassed in R. v. Bernard and R. v. Stephen Marshall et al. , where the courts looked for, and did not find, Native (sic) engagement in commercial logging before 1760.” [ 25 ] Dr.

Patterson is a learned man undoubtedly perfectly capable of reading legal precedents and forming an opinion as to what they mean, and his opinion may, in fact, be correct; however in the context of an expert report on matters dealing with the intentions of the parties to various treaties made in the eighteenth century comments as to what courts may or may not have decided have, in my view, no place.

Firstly, they are on a subject which, as I have already said, is not a subject on which Canadian courts receive expert testimony, and secondly, particularly in relation to the last example given in the foregoing paragraph, the opinion expressed is essentially the ultimate question upon the Court will be called to pronounce. [ 26 ] For these reasons Dr. Patterson’s report as it is currently drafted will not be received as evidence in the trial on the Applicant. Dated at Woodstock this 22 nd day of August, 2014. _____________________________ R. LESLIE JACKSON , P.C.J.