Expert Witness Cross-Examined Amid Controversy Over Unregulated Cannabis Stores
SUDBURY June 13, 2023 — Cross examination of expert witness Dr. William Newbigging, a professor of History and Anishnaabemowin, began last week in the controversial case involving ten defendants charged with operating unregulated cannabis stores in the communities of Wahnapitae, Henvey Inlet and Garden River First Nations.
On January 24 of this year, the Expositor reported on the potentially precedent setting case involving ten First Nations defendants who filed a constitutional challenge four years ago. The defendants contend that that after the legalization of cannabis in 2018, the charges against them violate their rights as First Nations to trade the substance as a means of economic development.
The accused are charged with breaking the Cannabis Act and the Controlled Drugs and Substances Act. They have admitted to the actions that led to the charges. After years of legal proceedings and two dismissal attempts by the Crown, one question remains: Do these laws infringe on the accused's traditional rights to use and trade cannabis and hemp, making them inapplicable under section 35 of the Constitution Act, 1982?
At the centre of the controversy, are claims that all ten defendants,David Brennan, Sarah McQuabbie, Harley Hill, Clayton Hill, Chadwick McGregor, Michael Nolan, Dennis Wigmore, Derek Roque, Noble Boucher and Luke Klink are in fact descendants of the Amikwa Nation, who didn’t enter into treaty negotiations nor ceded their territory.
Thomas Lambert, the employment and training manager for Nippissing FN reached out the Expositor to denounce the Amikwa as a fraudulent organization representing themselves as a First Nation. In an emailed statement, Lambert asserted that Swinwood was “trying to use the history of a group that does not or ever existed”.
January 31, February 1, 2, and more recently on March 12 and 14, 2024, Regional Senior Judge for the Superior Court of Ontario heard the defence, Michael Swinwood’s, proposal to call Dr. William Newbigging as an expert “with respect to the history of the Anishnaabe people of the Great Lakes, particularly Lake Huron, and with respect to the Amikwa people.” Lambert compared the Amikwa to Métis Nation of Ontario, who is currently under fire by the Chiefs Of Ontario as the Robinson-Huron Treaty case is winding up.
Jeannine Plamondon and Brian Bencze, for the Crown, opposed the request and a voir dire, or a “trial within a trial” was held to determine whether Newbigging, a professor of History and Anishnaabemowin, would be admitted as an expert in the existence of the Amikwa as a nation.
In March, Dr. Newbigging was cross examined for three days. Dr. Newbigging submitted multiple reports crucial to the case, including "The People of the Amikwa Nation" (June 2022) and a response to Alexander von Gernet’s reports from October 2023, dated December 8, 2023. His testimony during cross-examination focused extensively on these reports, as well as on another report prepared for a different case: "The Anishinaabe Presence on the Penetanguishene Peninsula: With Specific Reference to the Amikwa Presence in Tiny Township" (October 31, 2023), commonly referred to as the "Tiny Township report.”
Since Dr. Newbigging is a witness for the defense, two important points need to be considered. First, according to legal precedent, a trial judge has the authority to be flexible with rules about what evidence can be presented if sticking strictly to those rules could lead to a miscarriage of justice and if the concerns the rules are meant to address aren't present in this case. Second, if the judge thinks about not allowing defense evidence because its harmful effects are greater than its usefulness, they can only do this if the harmful effects "significantly outweigh" its usefulness, as originally written.
Judge Boucher deemed the threshold of admissibility as valid, and the trial is officially began at in June. Cross examination for Dr. Newbigging will resume September 9 and 10, 2024.
The outcome of this landmark case could have far-reaching implications for First Nations' sovereignty and their rights to economic activity within their territories. As proceedings continue, stakeholders await Judge Boucher's ruling on whether Dr. Newbigging's testimony will influence the case's outcome.
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Jacqueline St. Pierre, Local Journalism Initiative Reporter, The Manitoulin Expositor
