Citation: 2013 TCC 263
Date: 20130821
Docket: 2008-101(IT)G
BETWEEN:
WINSTON BLACKMORE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
RULING ON ADMISSABILITY OF EXPERT EVIDENCE
(Edited from the transcript of rulings delivered orally
from the Bench with respect to the expert witnesses,
Dr. John Walsh on January 31, 2012,
Dr. Ryan Thomas Cragun on February 9, 2012, and
Dr. Randall Balmer February 29, 2012)
Campbell J.
DR. JOHN WALSH:
[1]
Before we begin I'm going to read into the record my
conclusions and the reasons for those conclusions in respect to the
qualifications of Dr. John Walsh regarding the voir dire which I heard
yesterday.
[2]
The question posed to me in
yesterday's voir dire is whether this Court can accept the Appellant's
witness, Dr. John Walsh, as an expert and, consequently, allow him to provide
his testimony in the context of a qualified expert witness.
[3]
The short answer to this issue is
that I am allowing Dr. Walsh to give evidence as an expert, but I am
setting strict parameters for the area where I have concluded that his
expertise exists. Initially, I was inclined to completely reject
Dr. Walsh's credentials as an expert in respect to the particular issues
before this Court. However, upon reflection, I am inclined to allow Dr. Walsh’s
testimony as an expert to assist me purely and strictly as it relates to
doctrinal principles underlying and relevant to the Mormon religion as
suggested by the Crown in her submissions. An extension of that conclusion is
that I will not permit Dr. Walsh to provide opinion evidence on the daily
lifestyle of the community of Bountiful.
[4]
Now, I turn to the reasons for my
conclusion.
[5]
The Supreme Court of Canada in R.
v Mohan, [1994] 2 S.C.R. 9, set out four criteria that must be met if expert
evidence is to be admissible. These are: (1) that the proposed expert is
properly qualified; (2) relevance; (3) necessity in assisting the court; and (4)
the absence of any exclusionary rule.
[6]
The Crown's primary focus in
objecting to Dr. Walsh being qualified as an expert witness was that he is, in
fact, not a “properly qualified” expert.
[7]
The basic premise from which I
begin is the statement provided in Mohan, “the evidence must be given by
a witness who is shown to have acquired special or peculiar knowledge through study
or experience in respect of the matters on which he or she undertakes to
testify.” In other words, the specially acquired knowledge of an expert
respecting a particular subject must be such that it will assist the trier of
fact because the trier of fact, myself in this case, does not possess that
specialized knowledge over that particular subject matter. It makes no
difference how the proposed expert witness acquired that special
knowledge. It can be through academic training, actual experience, participation
in professional organizations, publications, teaching and lecturing, to name a
few. The central focus for me is whether Dr. Walsh does, in fact, possess that
specialized knowledge based on the qualifications he has offered to this Court
during the voir dire.
[8]
When Dr. Walsh was sworn as a
witness, he described himself as an expert in religious studies, with a focus in
the academic field of Mormon studies. Dr. Walsh was a certified accountant
with 15 years in the business world. According to his CV, he obtained an MBA in
1995 from Brigham Young University and a second Master's Degree was obtained in
the area of Jewish studies. His Ph.D. is from the Department of Theology at the
University of Wales. However, the Crown pointed out that this degree was obtained
from an educational institution that was amalgamated with another institution,
several years after Dr. Walsh obtained his degree, to ensure the degree
granting standards were being maintained.
There was also some reference to this
being a long-distance degree, being obtained while Dr. Walsh continued to
reside in the United States. In cross‑examination, a similar query arose
with respect to his Masters Degree in Jewish studies, which Dr. Walsh pointed
out was not a correspondence degree, but was obtained through “distance
education,” meaning, as I gathered from the evidence, that a minimal amount of
time was actually spent on campus attending courses.
[9]
Dr. Walsh's Ph.D. and his thesis
focused on an examination of the ascension theology of the founding Mormon
prophet, Joseph Smith, that is, on how salvation could be attained by achieving
heavenly ascension.
[10]
Dr. Walsh has only one published
article, entitled Are Jesus and Satan Brothers? A Short Exploration in
Mormon Christology. He has one self-published book entitled Mormon
Mysticism, Mythology and Magic. The table of contents in this book is
identical to the table of contents in his thesis. According to Dr. Walsh, the
book's contents had been expanded, however, the subject matter remained the
same. In
addition, he has given only one lecture to graduate students, for which he did
not receive compensation. He does not teach and further describes himself as a
litigation consultant.
[11]
Dr. Walsh has been qualified once
in Canada as an expert in the recent British Columbia polygamy reference case. He
was qualified in that case on the basis of providing expert evidence in respect
of “purely doctrinal matters” and “normative practices” of the FLDS Church, and not on the day-to-day practices within the Church or, more specifically, the
community of Bountiful.
[12]
The Crown suggested that reference
cases, being distinctly different from civil proceedings, may have employed
relaxed rules concerning admissibility of expert evidence. However, whether the
Crown is correct or not in these observations respecting the admission of
expert evidence in the British Columbia reference case, I simply take note of
the fact that Dr. Walsh was qualified as an expert. The decision to accept Dr.
Walsh or reject him as an expert in the end is mine alone to make, based on the
evidence before me, regardless of whether he has been qualified once or 100
times in other courts.
[13]
Dr. Walsh's credentials are
limited and I have no evidence before me that he has any specialized knowledge
in respect to Bountiful. His Masters degree is in Jewish studies, his prior
background is related to business activities, he has only one peer-reviewed
publication, his book is self-published and appears to be closely aligned with
the content of his Ph.D. thesis, he does not lecture or teach, he has no
expertise as a sociologist, psychologist or anthropologist, he has no listed
distinctions or awards, and his thesis and published article deal with subject
matter that is unrelated to the issues before me in these appeals. Dr. Walsh is,
himself, a practicing Mormon since approximately 1990. His expertise appears to
have also developed over 20 years of interviewing many individuals who are
practicing Mormons. While Dr. Walsh may have gained expertise in the doctrine,
history and practices of the Mormon faith, the evidence does not establish any
expertise he may have in respect to the community of Bountiful. He admitted
that he has never been to Bountiful and that any conclusions that he would be
offering were based on information from telephone conversations with Mr.
Blackmore, the examination for discovery materials and some other miscellaneous
documentation. Hardly the “meat and potatoes” of expert evidence. His background
and experience is in comparative religious studies, with a focus on Mormonism. This
does not translate to an expertise in the day-to-day activities and how the
Mormon faith is practiced in communities such as Bountiful.
[14]
Although I am operating in a bit
of a vacuum, as I am not privy at this point in time to the contents of Dr.
Walsh's report, Crown counsel has suggested that he is venturing into areas and
drawing conclusions in respect to the daily practices in Bountiful. In doing so,
he would potentially be drawing factual conclusions from telephone conversations
with Mr. Blackmore, as well as several documents. The broad issue before me is
whether Mr. Blackmore is a member of a community that is a congregation as
defined in subsection 143(4) of the Income Tax Act. My concern is that
Dr. Walsh may be attempting in his report to draw conclusions without an
expertise basis respecting the very issue which is for this Court to decide
after hearing and weighing all of the evidence. Overall, even though I am
admitting him as an expert, albeit on a limited basis, I do have concerns about
his qualifications and I conclude that he is unlikely to be able to assist me
with the very matters that go to the heart of the issue and those are, to name
a few, the United Effort Plan, the United Effort Plan Trust, the term “tithing,”
the declaration of trust or consecration. None of these terms are the focus of
his thesis, his publications or his expertise.
[15]
The Crown also touched briefly on
the issue of personal bias on the part of Dr. Walsh, in that he is a practicing
Mormon and lacks the essential objectivity that is generally expected of those
individuals offered as expert witnesses. Based on my conclusions, I do not feel the need to
address those concerns in my remarks except to state that, in restricting his
expert evidence to testimony respecting the history, principles and doctrine of
Mormonism, I believe any resultant bias on the part of Dr. Walsh in respect to
the issues before me has been eliminated or at least limited in scope.
[16]
In summary, I am allowing the
admission of Dr. Walsh's evidence as an expert, but limited to testimony in
respect of the doctrines, history and principles of the Mormon faith, which
evidence, I am hopeful, will assist me as the trier of fact in this specialized
area. I believe that, as the trier of fact, it may be beneficial for me to hear
evidence respecting the broader underlying principles of the Mormon faith. However,
according to Mr. Blackmore's testimony, there is a connection between the Bountiful community and the mainstream Mormon faith. Consequently, Dr. Walsh's testimony may
be of some assistance to me but, at the end of the day, considering the
totality of the evidence, I will determine the amount of weight to be accorded
to his evidence.
DR. RYAN THOMAS CRAGUN:
[17]
Let the record show, then, that I
am delivering reasons in respect to the voir dire of Dr. Cragun, which
we concluded after two days on yesterday's date.
[18]
This is the second voir dire
held in these appeals in respect to the admissibility of proposed expert
evidence. I must decide if the report of the Respondent's witness, Dr. Ryan
Cragun, is admissible and, in addition, whether he can provide his testimony
respecting that report as an expert witness.
[19]
My conclusion is that I am
prepared to accept Dr. Cragun as an expert witness, however, I am again, as I
did with Dr. Walsh, setting parameters within which he may provide that expert
testimony.
[20]
The Respondent has tendered this
witness as being an expert in respect to broad areas of expertise. These areas
include: (1) the scientific field of sociology of religion, with a
sub-specialty in Mormonism, that would enable him to provide expert testimony
respecting the various entities existing under the umbrella of Mormonism; (2)
as a sociologist with a specialty in religion, to provide expert testimony
respecting the practices and traditions of members of the Hutterite Brethren
Church, or Hutterite colonies generally; and (3) expert testimony respecting
the community of Bountiful, together with resulting comparisons and conclusions
between lifestyles and work relationships of the Hutterite colonies and the
community of Bountiful.
[21]
The Appellant opposes the
admissibility of Dr. Cragun's report based on all four of the criteria as set
out in the Supreme Court of Canada decision in Mohan.
[22]
Those criteria that must be
established before proposed expert evidence will be admissible are: (1)
relevance of the evidence; (2) necessity in assisting the Court; (3) absence of
any exclusionary rule; and (4) that the proposed expert is properly qualified.
[23]
Dr. Cragun is presently employed
as an assistant professor of sociology at the University of Tampa, and has been employed at this university since obtaining his Ph.D. in 2007. His Bachelor
of Arts degree was obtained from the University of Utah, with a specialty in
psychology. Both his M.A. and Ph.D. degrees were in sociology and obtained from
the University of Cincinnati with a focus on religion. He testified that he
enrolled in any course related to religion that the university offered,
including a philosophy course on religion and psychology and anthropology
courses on religion. He explained his focus, the sociology of religion, as
encompassing an understanding of the history and belief systems of religion
generally. His specialty in the broader discipline of religion reflects the
fact that degrees in Mormonism are not available. Dr. Cragun grew up in a devout
Mormon family as a practicing member of the LDS Church, more commonly referred
to as the mainstream church. He served as a Mormon missionary in Costa Rica for a two‑year period. Although he ceased membership in the church in
2002, and formally resigned in 2004, he has maintained an interest in Mormonism
throughout his life and, at the age of 35 years, testified that he has devoted
the last 14 years to study and research on Mormonism.
[24]
Much of the two-day voir dire
was spent, both in direct and cross‑examination, on taking Dr. Cragun
through a considerable list of peer‑reviewed articles, books, book
chapters, non-peer-reviewed publications, book reviews, lectures and
presentations, conference papers and presentations, as well as his grants,
awards, service for professional organizations and consulting and public
appearances.
[25]
While nothing in his CV suggests
an expertise in respect of Hutterites or Bountiful, he clearly has an
established specialty in Mormonism. Although many of his articles did not
directly deal with tenets of the Mormon religion, his work required a particular
depth of knowledge of the religion well beyond that of this Court. He has
numerous peer-reviewed articles listed on his CV. In his direct examination,
Dr. Cragun testified that he has participated in the review of publications in
the Journal for the Scientific Study of Religion close to 20 times. He
described this journal as being the top-ranked sociology of religion journal in
the world. It does not appear that he would be asked to participate in such
peer reviews unless he possessed a broad and encompassing knowledge of the
history, principles, beliefs and doctrines of religions generally, including
Mormonism.
[26]
Returning to the Mohan criteria,
I conclude that evidence which he may be able to provide respecting the
history, doctrine and principles of Mormonism meets the requirements of
relevancy and necessity. There is clearly a connection between such evidence
and the issue before this Court. In addition, both parties to these appeals
have drawn the Court's attention to the connection between the Bountiful community and the FLDS. I suspect it will assist me because it should provide
relevant background information.
[27]
At various points in his direct
examination, Dr. Cragun addressed the specialized knowledge he possesses in
respect to the FLDS and mainstream LDS branches. At pages 1637 and 1638 of the
transcript he states the following:
… Three of my book
chapters examined the FLDS, sometimes in comparison to the LDS but to examine
the FLDS, the two of my journal articles look at them as well. So I spend a
considerable amount of time looking at the FLDS. I've been to Colorado City and I've interviewed several people who are members of the FLDS Church, former members of the FLDS Church. I've read a substantial amount of literature, books,
a few articles; there aren't many on them. Plenty of newspaper articles. I have
an ongoing kind of e-mail alert, when anything about the FLDS comes up. I'm
very cognizant of what's going on there. And interviewed a number of people who
are very familiar with the FLDS as well. So it is probably not as much as a
specialty area as the mainstream LDS church, but certainly an area where I have
spent a great deal of time becoming an expert.
Dr.
Cragun goes on to state that he has also interviewed former members of the FLDS
who were expelled by Warren Jeffs.
[28]
Again, at page 1639 of the
transcript, he makes clear the fact that both the LDS and FLDS branches are
within his specialty of Mormonism. He has published journal articles on the FLDS,
two of which have been peer-reviewed, at least three book chapters on the FLDS
which have been editorially reviewed, and presented numerous conference papers
referencing the FLDS.
[29]
In response to the Respondent Counsel's
query: “Are you familiar with the principles, practices and beliefs of the
mainstream LDS Church?” his response, at page 1644 of the transcript was, “Intimately
so.” And
in response to a similar question respecting the FLDS, his response was in the
affirmative. He has visited FLDS communities in Utah, including the communities
of Colorado City and Hilldale. Again, at page 1647, he confirms his familiarity
with the history of both the FLDS and mainstream LDS churches.
[30]
However, beyond the FLDS and LDS
branches, I am not prepared to permit Dr. Cragun to testify as an expert. At
page 1644 of the transcript, he himself appears to limit his expertise to these
branches in the following exchange that occurred in direct examination:
Q And are
you familiar with the principles, practices and beliefs of the FLDS church?
A Yes.
Specifically the FLDS, I would say yes. If we go into the broader community of
Mormon fundamentalists, which isn't exactly what you asked, those can vary a
lot. So it would be very hard to pin those down.
Q Right.
A So, I
would be more reticent to say that I know everybody's beliefs because they can
vary so much.
Q Because
they're independent.
A Yes,
they're independent.
[31]
In respect to Dr. Cragun's
qualifications, which I have outlined briefly, I conclude that he meets this
criteria in respect to testimony, which I anticipate that he can provide,
respecting the doctrines, history, principles and beliefs of the FLDS and LDS
organizations falling within the umbrella of Mormonism. Based on his
qualifications, which are more varied and extensive than those of Dr. Walsh, I
am permitting testimony by Dr. Cragun in respect of some of the critical aspects
essential to the issues before me, including such areas as consecration,
tithing and property ownership, as those areas relate to the general FLDS and
LDS branches. However, Dr. Cragun will not be permitted to provide expert
testimony respecting the lifestyle of Hutterite colonies or of Bountiful, or to draw comparisons between them. Dr. Cragun has no more expertise in the Bountiful community than that of Dr. Walsh and, in fact, he may have less because Dr. Walsh
conducted a telephone interview with Mr. Blackmore. Other than this factor, it
appears from the evidence adduced in the voir dire that Dr. Cragun had
access to and reviewed the same materials as Dr. Walsh. For similar reasons as
I enumerated in my reasons for Dr. Walsh, I conclude that Dr. Cragun has
demonstrated no expertise in the Bountiful community. Also, I have come to the
same conclusion in respect to admitting him as an expert for the Hutterite
faith. His CV contains nothing in the way of courses or studies in this area,
and it does not appear that any of his articles or publications or lectures
were in respect to the Hutterites, even in a general sense.
[32]
One can hardly claim to be an
expert in any area by reading a book from a leading authority on the topic
after one has been engaged to produce a report. A visit to a Hutterite
community, subsequent to the production of his report, even without prompting
by the Respondent, must be excluded from my consideration in reaching the
conclusion I have in respect to the admissibility of a report that was already
in existence at the time of the visit.
[33]
I am also of the opinion, at this
point, that I may be able to take judicial notice, if necessary, of the book
referred to by Dr. Cragun, being Hostetler's Hutterite Society. Although
Dr. Cragun's testimony respecting the contents of this book, and
particularly in light of his background in religion, might be of assistance,
that does not elevate such testimony to expert evidence. Based on the
evidence, I reject the Respondent's submission that Dr. Cragun possesses an
expertise in Hutterites because he has an expertise in the area of religion and
Mormonism. This alone cannot give him the credentials essential to classifying
him as such an expert, and reading a leading book on Hutterites does little to assist
either.
[34]
In respect to the fourth and final
criteria for admissibility, the Appellant submitted that two exclusionary rules
applied to Dr. Cragun's evidence: (1) that he became an advocate; and (2) the
prejudicial effect of his proposed evidence outweighs its probative value. With respect to
the second submission, because I have limited the areas where Dr. Cragun can
give expert testimony, I believe that the probative value far outweighs any
potential prejudicial effect in these appeals. In respect to Appellant Counsel's
advocacy submissions, as I understand that position, she is suggesting that Dr.
Cragun may have been influenced by the Crown, based on an exchange of e-mails
and notes, to produce a product that is not independent and unbiased and, in
addition, that he may have ventured from the area of opinion into the area of
expressions respecting conclusions based on law. However, I viewed Dr. Cragun's
evidence during the voir dire to be straightforward and candid. He
expressed his viewpoint in an objective and impartial manner. Although he had
given expert evidence only once in a custody dispute in the U.S. courts, this was his first attempt at producing a written report for a court. He
admitted to several drafts which he incorrectly approached from an academic
viewpoint. From the oral and documentary evidence before me, I conclude that he
was not improperly influenced in his final work product and, consequently, that
he did not assume the role of advocate on behalf of the Crown.
[35]
Finally, I will permit Dr. Cragun
to give evidence in respect to Dr. Walsh's report, but only to the extent of
those portions of that report that would be included within the parameters
which I established in respect to Dr. Walsh's expertise. And in respect to any
conclusions that Dr. Cragun may have attempted to draw in his report regarding
the purpose or scope of section 143 of the Income Tax Act, or of the
intention of the Canadian Parliament in enacting that section, those will not
be admissible as an area of his expertise.
I should note, as well, that although Respondent
Counsel referred to the Hutterite communities as the “gold standard,” and I
assume by that she meant in respect to an interpretation of section 143, the
provision makes no specific reference to this group and a reading of the section
implies that it will apply to any community that can bring itself within the
requirements and conditions set out in that section.
[36]
In summary, I am allowing Dr.
Cragun to provide his testimony as an expert witness with respect to the areas
of his specialties, the sociology of religion and Mormonism. Specifically, his
testimony will be limited to evidence regarding the history, doctrine, belief
systems, practices and principles of Mormonism. I have also determined that Dr.
Cragun has specific expertise in the FLDS and LDS branches and, consequently,
will be permitted to testify on such areas as consecration, tithing and
property ownership, as those areas relate to the FLDS and LDS.
[37]
However, I am not permitting him
to provide expert evidence respecting the Hutterite colonies and faith, or the
community of Bountiful, or to draw comparisons in respect of these. Nor will
Dr. Cragun be permitted to offer evidence as to the scope of, and intent
behind, section 143 of the Income Tax Act. I will permit him to
critique Dr. Walsh's report insofar as it is limited to those portions of that
report which would fall within the parameters of my ruling on Dr. Walsh.
DR. RANDALL BALMER:
[38]
Let the record show that I am
delivering my reasons in the two-day voir dire that I had respecting the
qualifications of Dr. Randall Balmer.
[39]
The Respondent is seeking to have
Dr. Randall Balmer qualified as an expert in American religious history, with
specialized knowledge of “polity,” as that concept is applied to and relates to
American religious organizations, including Mormon religious organizations.
According to the Respondent's submissions, the inclusion of Mormon religious
organizations from the perspective of American religious history would
necessarily encompass testimony relating to fundamentalist Mormon tradition,
history, practices and beliefs.
[40]
Appellant Counsel in his
submissions conceded that Dr. Balmer is an expert in the area of (1) American
religious history, and (2) polity as it applies to American religious
organizations. However, the Appellant took exception to Dr. Balmer's
proposed expertise with respect to the following:
(1) the extent to which Dr. Balmer's
expertise in American religious history and polity touches on fundamentalist
Mormonism and particularly the Bountiful group because the Appellant argues
this is outside the scope of his expertise;
(2) Dr. Balmer's expertise relates
to religion in the United States and cannot be extended to Canada where Bountiful is situated; and
(3) Dr. Balmer's alleged conclusions
with respect to section 143 should not be permitted.
[41]
My short answer is that I intend
to have Dr. Balmer qualified as an expert in American religious history, with a
specialty knowledge in the area of polity of American religious organizations,
including Mormon religious organizations and their traditions, history,
principles and beliefs.
[42]
In arriving at this conclusion I
do not see the Appellant and Respondent as being that far apart on the parameters
of Dr. Balmer's expertise and qualifications and, in fact, they may be “splitting
hairs.” I make this observation, of course, without the benefit of having the
report before me. While everyone else in this Court is aware of the contents of
this report, unfortunately I am not, and this, I believe, leaves me at a
distinct disadvantage.
[43]
My perception, based on Dr.
Balmer's testimony, is that he is operating from an entirely different
perspective of the term “fundamentalist” and “fundamentalist groups” than both
the Appellant and Respondent. At pages 2403 and 2404 of the transcript, in response
to counsel's question asking Dr. Balmer to explain “fundamentalist group,”
that are no longer identified with the mainstream church, he responded as
follows:
A. Well,
first of all, the term “fundamentalist” has to be understood in its historical
context, and it's routinely misused quite a bit. The term “fundamentalism” came
from a series of pamphlets that were written and published between 1910 and
1915 called “The Fundamentals”, and they were a response to what their authors
believed was the drift towards Protestant liberalism in mainline Protestant
denominations in the United States. It's from this series of pamphlets that we
derive the term “fundamentalist”. So the term “fundamentalist” has a specific
historical context.
Now,
it is certainly the case that the term “fundamentalism” as applied to religion
has been applied much more broadly over the last, what, say, seven or eight
decades, nine decades, since the publication of “The Fundamentals” to
encompass, for example, Hindu fundamentalists, particularly the practice of
suttee, Jewish fundamentalist, those who want to blow up the Dome of the Rock
in order to rebuild the Jewish temple in Jerusalem. Certainly Muslim
fundamentalists with the various associations with terrorism and so forth. I
would even claim that there is such a thing as Buddhist fundamentalists.
But
the term properly belongs to this series of pamphlets published between 1910
and 1915 that articulated the very conservative understanding of Protestant
orthodoxy. In the case we're talking about, the term “fundamentalist
Mormonism”, or “fundamentalist Mormons”, has been applied to those groups that
persist in the practice of polygamy in defiance of, in contradiction to the
teachings of the Church of Jesus Christ of Latter-Day Saints.
[44]
These remarks indicate that the
terms “fundamentalism” and “fundamentalist” have a specialized meaning within
religious studies. Dr. Balmer will be able to add “context,” as those are
applied to the terms “fundamentalist Mormonism” and “fundamentalist Mormons.” While
these comments were not pursued to any great extent by either the Appellant or
the Respondent, I suspect that Dr. Balmer's approach from the polity
perspective will provide the Court with an alternate appreciation and
understanding of these terms.
[45]
The reference to the origin in
these pamphlets offers a different perspective on the term “fundamentalist”
than I have heard previously in these proceedings, because Dr. Balmer appears
to be applying the term broadly to many religious groups and not specifically
to Mormons. It is important, therefore, for me to hear such evidence from the
historical perspective of an acknowledged scholar in the field of American
religious history and polity. I heard entirely different perspectives from two
other experts, but because the issues touch on areas where I have no experience
or knowledge to bring to the table, Dr. Balmer's assistance in the religious
history and polity, including the foundational and structural aspect of
fundamental Mormon groups, will add another dimension to the other expert
evidence.
[46]
Dr. Balmer is not being offered as
an expert in fundamental Mormonism or fundamentalist Mormon groups. His
expertise is from the perspective of a religious historian who possesses
specialized knowledge in the polity of religious organizations. Dr. Balmer
testified that he possesses both professional and personal knowledge of the
three different types of polity which he identified.
[47]
Because Dr. Balmer is an acknowledged
expert in American religious history, as conceded by the Appellant, it is
logical that he would by necessity possess a basic knowledge and understanding
of Mormonism, including “fundamentalist Mormonism.” He clearly indicated that
Mormonism is an indigenous American religion or, in other words, it emerges in
the context of American religious history, clearly his area of expertise. In addition, he
has published and lectured specifically in the areas of Mormonism and polity. He
has been an invited guest speaker at Brigham Young University, a lecturer at
the Tanner Lectures for the Mormon History Association and the moderator of a
panel on Mormonism and politics in America.
[48]
Dr. Balmer has no specific “on-the-ground”
knowledge of daily life in Bountiful, any more than the other two experts had.
However, the Respondent is not attempting to have him qualified as an expert in
this regard. Any evidence he gives respecting Bountiful will be from the
perspective of an historical religious account together with perspective of the
polity of Mormonism and fundamentalist Mormonism, including their traditions,
practices and beliefs. It is from this perspective of history and polity that
Dr. Balmer's evidence must focus. As I understand the term “polity,” such evidence will
address such topics as the relevance of ex-communication, succession, and
polygamous practices, but without reference to the day-to-day practices in Bountiful for which Dr. Balmer possesses little direct knowledge.
[49]
With respect to the Appellant's
remaining arguments, I believe that Dr. Balmer's expertise is not confined
geographically to the United States. Although his primary focus may be the United States, he did state that his field encompasses Canada and Mexico.
[50]
Both Appellant and Respondent Counsel
have agreed that any conclusions by Dr. Balmer respecting section 143 of the Income
Tax Act are to be ignored. If Dr. Balmer has made conclusions in his
report, other than those respecting section 143, he is doing so in his
capacity as an expert applying his expertise and knowledge. This is not unlike
any other expert who arrives at specific conclusions utilizing their particular
expertise and applying that to the facts.
As the ultimate trier of fact, I am no
more obligated to accept Dr. Balmer's conclusions than I would be that of any
other expert appearing before me. I go back to the reason why experts may be
required in the first place, and that is to assist the trier of fact in areas
where that individual cannot reasonably be expected to possess the necessary
knowledge and experience in that particular area in order to come to an
informed decision. It is the information, knowledge, expertise and methods
employed by the expert in reaching his conclusions that are useful to the trier
of fact. Depending upon the weight to be assigned, the trier of fact may fully
adopt or reject or accept portions of those expert conclusions.
[51]
Dr. Balmer meets all the Mohan criteria,
which I have reviewed in detail in my reasons respecting the prior two experts.
His testimony, respecting Mormon history and polity, is clearly connected to
and relevant to the issues before me. He brings a different perspective to the
Court than the prior experts. Where his expertise is in American religious
history and encompasses polity, this must include Mormonism given that
Mormonism is an indigenous religion to North America. The probative value of
all of this outweighs any potential prejudice.
[52]
In addition, Dr. Balmer's
testimony is outside my experience and knowledge as the trier of fact in these
appeals, and in this respect it is necessary to assist me in dealing with the
issues before me.
[53]
I also conclude that Dr. Balmer is
properly qualified. He has an M.A. and Ph.D. in the area of American religious
history from Princeton University. He is a tenured professor at Columbia where he has been teaching for 27 years. He is about to accept the prestigious
position of Chair of the Department of Religion at Dartmouth. He teaches
religious history at both Columbia and Dartmouth, including a course in
Mormonism. He has taught at 4 or 5 of the 8 Ivy League universities in the United States, again in the area of religious history. He has authored 13 books and 54
peer-reviewed articles, published 45 op-ed pieces and 25 encyclopedia
articles, and authored 5 forwards and prefaces in American religious history,
including coverage of the Joseph Smith period. He has published in the area of
Mormonism and polity. He has been qualified as an expert in the United States on 4 prior occasions. He is consulted regularly by a wide range of multi‑media
outlets including ABC, NBC, CBC, CNN, BBC, CBS and PBS, to name a few.
[54]
Finally, I see no exclusionary
rule that applies to exclude Dr. Balmer’s evidence.
[55]
In summary, all of the Mohan criteria
respecting the admissibility of Dr. Balmer's expert evidence have been
met. Dr. Balmer will be permitted to provide his evidence as an expert in
American religious history with specialty knowledge in polity, which is
understood as the foundations and structures to religious organizations, and I
note this is by concession of the Appellant.
Further, Dr. Balmer brings a new
perspective to the terms “fundamentalist” and “fundamentalism” as those terms
are applied to fundamentalist Mormons and to the history, beliefs, practices
and traditions of Mormonism.
[56]
And that concludes my reasons with
respect to the voir dire of the last two days.
Signed at Summerside, Prince Edward Island,
this 21st day of August 2013.
“Diane Campbell”
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