Today's trial: evaluating evidence.

• Author: Mitchell, Teresa

Issues of justice involving First Nations people in Canada are complex and controversial. Aboriginal leaders point to the disproportionate numbers of young native men in Canadian jails and the harshness of a criminal justice system that does not reflect traditional aboriginal customs and values. Other groups in Canadian society argue that Canadian courts go too far in trying to redress the harm done to aboriginal people when it comes to adjudicating land claims, traditional hunting and fishing rights, and setting sentencing standards. The Supreme Court of Canada has spent decades trying to find a way to balance the cultural, social, and historical imperatives of First Nation peoples with the rule of law and the Canadian constitution. It is well accepted now in Canadian law that the oral tradition of the aboriginal peoples must be respected and considered. However, a recent Supreme Court decision that rejected an aboriginal group's claim shows that sometimes such evidence will not meet the tests of reliability and persuasivness that all Canadian litigants must meet.

The case before the Court was about the claim of Michael Mitchell, a Grand Chief of the Mohawk Nation of Akwesasne. In 1988, he brought goods purchased in the US across the Canadian border. He refused to pay tax on the imported goods, claiming that aboriginal and treaty rights exempted him from paying duty.

Chief Justice Beverley McLaughlin, writing the majority opinion, noted "Aboriginal right claims give arise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records." She referred to a 1996 Supreme Court decision that said "... a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in." Nevertheless, she noted, "courts render decisions on the basis of evidence, and this fundamental principal applies to aboriginal claims as to any other claim." Thus while courts must use evidentiary rules with some flexibility and sensitivity, they must still be guided by three basic rules:

* evidence must be useful in the sense of tending to prove a fact relevant to the issues

* the evidence must be...