Central to the arguments advanced by both defendants are the remarks of McLachlin C.J. in Mitchell v. M.N.R., [2001] S.C.R 911, at para. 33, as follows: The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonable reliable source of the particular people’s history? The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted. In that passage, McLachlin C.J.C. is reminding the reader that there are two dimensions to the issue of reliability. The first is whether the evidence of a particular witness can be relied upon to a sufficient degree to be admitted as evidence at the trial. The second dimension of reliability relates to the weight to be given a witness’s evidence once it has been admitted. She is also saying that “inquiries as to a witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate…”. She is not saying that such inquiries must be held in all cases. There is a discretion that remains with the trial judge in that regard.
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