Somers v. Surrey Pretrial Services Centre, 2025 BCHRT 70
Date Issued: March 19, 2025
File(s): CS-000870
Indexed as: Somers v. Surrey Pretrial Services Centre, 2025 BCHRT 70
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
David Somers
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry Public Safety and Solicitor General (Surrey Pretrial Services Centre)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO EXCLUDE EXPERT EVIDENCE
Section 27.2
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Garifalia (Lia) Milousis
Counsel for the Respondent: Joni Worton
I INTRODUCTION
[1] David Somers is Rastafarian. He says he was mistreated by Surrey Pretrial Correctional Officers for practicing his religion. He has filed a complaint with the Human Rights Tribunal, alleging that the Respondent’s conduct violated his rights under s. 8 of the Human Rights Code . The Respondent denies discriminating against Mr. Somers. The hearing of the complaint is scheduled to begin in June 2025.
[2] In support of his complaint, Mr. Somers seeks to admit an expert report by Jah Lex, a Rastafarian elder and crown prophet of the Bobo Shanti Rastafari order. The report is titled, “Rastafari movement, culture, way of life and spiritual realms” [ Report ]. The Report does not identify what questions Jah Lex was asked to address. In the alternative, Mr. Somers proposes the Tribunal consider the evidence provided to date to be a “written summary of opinion,” and permit the expert witness to be examined by the parties at the hearing.
[3] The Respondent objects to the admissibility of the Report and Supporting Documents, on the basis that it does not meet any of the usual standards of an expert report, and the Report is too deficient to be either necessary or appropriate for the Tribunal to accept as evidence. They argue that the expert is not properly qualified. Further, the Report is not impartial and constitutes advocacy, purports to answer the ultimate question in dispute, is not necessary to assist the Tribunal, and it seeks to usurp the function of the Tribunal. Lastly, the Report was not disclosed in accordance with the Tribunal’s Rules of Practice and Procedure [ Rules ]. It seeks a ruling that all or part of the Report is inadmissible in the hearing.
[4] For the reasons that follow, the application is granted in part.
II Preliminary issue
[5] The Respondents have argued that the Report was not disclosed in accordance with the Rules and request that Mr. Somers consents to their request to place any Reply Report in abeyance pending the outcome of this application.
[6] Pursuant to Rule 21, the participant who wants to call an expert witness or introduce a report stating an expert opinion at a hearing must deliver a written summary of the opinion, or copy of the report, to the other participants no later than 90 days before the start of the hearing.
[7] The hearing was originally set to be heard on April 28-May 2, 2025. Pursuant to Rule 21(8), the parties set new dates for the exchange of expert evidence. The new date was January 28, 2025. Mr. Somers provided the Respondents with a summary of the opinion evidence on January 30, 2025.
[8] By consent, the hearing was adjourned to June 23-27, 2025. A day after the Tribunal issued the decision to adjourn the hearing, the Respondent filed this application. I note that the Respondent may have drafted their argument before the adjournment application was decided. Nevertheless, considering the current hearing dates, the 90-day deadline would be Tuesday, March 25, 2025. I consider Mr. Somers application to be filed on time.
[9] Mr. Somers does not object to the Respondents request that the time required for its response be placed in abeyance. I will leave it to the parties to agree to a schedule for the Respondents to give Mr. Somers and the Tribunal the Reply Report.
III DECISION
[10] The Tribunal has discretion to admit evidence that it considers “necessary and appropriate, whether or not the evidence or information would be admissible in a court of law”: Code , s. 27.2. In exercising this discretion, it is cognizant of the well known dangers of expert evidence, including that it can “distort the fact finding process”, create a risk that a decision maker relies on “junk science” or “unproven material not subject to cross-examination”, and “lead to an inordinate expenditure of time and money”: White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23 at para. 18; R. v. Mohan , [1994] 2 SCR 9 [ Mohan ] at p. 21. To guard against these dangers, the Tribunal follows the analysis laid out by the Supreme Court of Canada in Mohan and White Burgess . In doing so, it may modify any of the court’s admissibility criteria where it is satisfied that the evidence is necessary and appropriate in the circumstances of the particular case: Code, s. 27.2; Oger v. Whatcott (No. 5) , 2018 BCHRT 229 [ Oger (No. 5) ] at para. 22.
[11] In most cases, the Tribunal defers findings of admissibility to the hearing of the complaint. Where there are concerns about expert evidence, it has found that the concerns are best addressed by cross-examining the expert: Northern Interior Woodworkers’ Assn. obo Souter v. Pacific Island Resources , 2011 BCHRT 294 at para. 73; Radek v. Henderson Development (Canada) Ltd. and others (No. 2) , 2004 BCHRT 340 at para. 44. At the same time, however, the Tribunal will decline to admit expert evidence where it is clear that it could not assist in resolving the complaint. In those circumstances, admitting the evidence “would serve no purpose and may lengthen the hearing or divert it from its proper focus”: de Leon v. Coast Mountain School Dist. No. 82 (No. 3) (1999), CHRR Doc. 99-220 (BCHRT) at para. 13; see also Cristoforou v. John Grant Haulage Ltd , 2016 CHRT 14 at para. 68.
[12] In this case, I have the benefit of Jah Lex’s report, affidavit, and statement of qualifications. I note that Jah Lex uses the term “mansion” and “order” interchangeably in the Report, and I understand that to be sects of the Rastafari movement. I adopt the term “mansion” as it is most used in the Report. I also apply a broad and liberal approach in my understanding of the Report, as it is, in Mr. Somers’ own admission, “unique and unusual” in the subject matter it discusses, and the variation of language and affect used by the author.
[13] I understand from the Report that the expert addresses the following issues:
1. What is Rastafarianism?
2. What types of head coverings are required for Rastafari? On what occasions?
3. Is a Rastafari inmate required to cover their head as part of Rastafari way of life?
4. Are members of the Rastafari denied the right to follow and practice their spiritual way of life while incarcerated in Canada?
5. Do prison system employees oppress, punish, and prejudice detained Rastafari for demanding their right to practice their spiritual life?
[ Issues ]
[14] From the Report and the statement of qualifications, I understand the expert’s qualifications to be:
1. He is a member of the Rastafari community.
2. He embraced Rastafari principles from a young age.
3. He studied with the High Priests at Bobohill of the Bobo Shanti mansion.
4. He participated in Rastafari ceremonies after which he was crowned Prophet by the High Priests of the Bobo Shanti mansion.
5. Since May 8, 2013, he has been a Crown Bobo Shanti prophet.
6. For the last few years he has been a consultant with Chaplains from Bridges of Canada on Rastafari culture.
7. He has been the main subject of an unnamed TV5 documentary on Rastafari.
8. He is a member of The Ethiopia Africa Black International Congress E.A.B.I.C
9. He has faced prejudices for wearing a head covering.
[15] The analysis proceeds in two stages. First, the party seeking to introduce the evidence – here, Mr. Somers – must establish the threshold requirements of admissibility: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert: Mohan , at para. 17; White Burgess at para. 23. Second, the Tribunal balances the potential risks and benefits of admitting the evidence: White Burgess at para. 24. While considering the threshold issues, I am alert to the dangers of applying rigid interpretation of the factors to marginalized and minority communities, and the Tribunal’s history of accepting social context evidence as necessary and appropriate.
[16] I begin with the threshold requirements.
A. Relevance
[17] Expert evidence is relevant where it is “logically probative of an issue that is required to be proved”: Pinch (Guardian ad litem of) v. Morwood , 2016 BCSC 75 at para. 12. The Tribunal must consider whether the proposed evidence tends to prove or disprove a material fact at issue in the complaint.
[18] Mr. Somers brings this complaint under s. 8 (discrimination in accommodation, service, or facility) of the Code. To prove his complaint, he must prove that the Respondent’s conduct adversely impacted him in accommodations, services, or facilities in connection with his religion. If Mr. Somers proves his complaint, the Tribunal will have to decide what remedy to award. One of the remedies he is seeking is compensation for injury to his dignity, feelings, and self-respect.
[19] Mr. Somers say that the question of whether wearing a head covering is a religious requirement as part of Rastafarianism is a live legal issue. I agree. As stated earlier, the questions that the expert witness was asked to answer is not before me. I have distilled my understanding of the expert report such that the first three areas of the Report concern, in my view, relevant content. I am satisfied that those issues are relevant to the legal issue of whether a head covering was required by the Rastafarian religion.
B. Necessity in assisting the trier of fact
[20] Expert evidence is necessary where it “provides information ‘which is likely to be outside the experience and knowledge of a judge’”: Mohan at p. 23, quoting R. v. Abbey , [1982] 2 SCR 24.
[21] Mr. Somers argues that it is necessary for the Tribunal to receive evidence about the tenets of the Rastafarian faith. They say the Respondent criticizes Mr. Somers in the Complaint Response for not purporting to do so while he was in detention at SPSC. They say now that they seek to tender such evidence, the Respondents seek to have it excluded.
[22] I cannot agree with Mr. Somers that the Respondent is acting inconsistently or in bad faith. I understand the Respondents seek to have the Report excluded because of what they view as deficiencies in the form and substance of the Report, and not in an effort – either in bad faith or inadvertently – to be inconsistent in their position.
[23] I agree with the Respondents that some of the evidence in the Report would be unhelpful. In particular, I am referring to the areas covered in issues 4 and 5. That is opinion evidence that would squarely fall within the purview of the adjudicator and, if admitted, would usurp the function of the Tribunal. I find that this area of the Report and expert testimony is excluded.
[24] The first three issues are issues that are not at the core of the Tribunal’s specialized knowledge. To my knowledge, this Tribunal has not published any decisions concerning discrimination against Rastafarians in British Columbia, and there is no judicial notice I could take on the religion. In determining whether the trier of fact would be unlikely to form the correct judgment about the religious practices of Rastafari if unassisted by the expert opinion evidence, I find that the answer is a resounding yes. It is axiomatic that if the trier of fact is not apprised of religious sensitivities and customs, many would take an Occidentalized view and find certain spiritual aspects of the practice not worthy of implementation or belief. As a result, I find his evidence necessary to assist the trier of fact.
C. Absence of any exclusionary rule
[25] The Respondents argue, and I agree, that the evidence the expert witness offers, in the form of opinions relating to the content of issue 4 and 5, seeks to decide the ultimate issue before the Tribunal. It is the role of this Tribunal to make its own independent findings based on the totality of the evidence presented at the hearing. As previously decided, this area of the Report and expert testimony is excluded.
D. Properly qualified expert
[26] A properly qualified expert is one 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”: Mohan at para. 27. An expert “must not only be qualified generally but must also be qualified to express the specific opinion proffered”: R. v. Orr , 2015 BCCA 88 at para. 67; Oger (No. 5) at para. 27. This is perhaps the most strongly contested part of the analysis.
[27] Mr. Somers says that Jah Lex, as a Crown Prophet, within the Rastafarian religion is qualified to speak about the religious tenets and requirements of Rastafarianism. Mr. Somers also says, being in a position of authority within the religion is sufficient to qualify Jah Lex as an expert. He argues that the requirement of academic training or paid work experience would suggest that “an academically-trained ‘expert’ who has studied Rastafarianism…would be more qualified-more appropriate-than a Crown Prophet in the Rastafarian faith[…] Such a position is demeaning and discriminatory, reflecting an excessively Westernized, institutionalized, and formalized interpretation of what legitimizes and qualifies an expert witness.”
[28] I also understand Mr. Somers to argue that much of the Respondent’s objections lie in misunderstanding Rastafarianism and Rastafarian organizations. They say, as with the courts’ flexible application of oral histories to establish Aboriginal claims to “gain a true picture of the aboriginal practice relied on or its significance to the society in question,” so too should the Tribunal find evidentiary value in hearing this expert evidence: Mitchell v. Minister of National Revenue , 2001 SCC 33 at para. 32. Mr. Somers explains that due to the decentralized nature of Rafarianism and the inability of a standardized resume to speak to spiritual qualifications, they provided an affidavit from the expert witness and a reference letter from another Rastafarian elder to show the expert witnesses.
[29] The Respondents argue, overall, that the Report provides no context to his purported expertise. They say in order to be properly qualified, an expert must have acquired special or preclear knowledge through study or experience in respect of the matters they intend to testify; and must be qualified to express the specific opinion offered. They say Jah Lex has not set out what qualifies him provide the opinion in the Report, particularly as they relate to the different mansions of Rastafari, or to inmates in provincial institutions. The Respondent describes his qualifications as:
· He was born Rasta and when growing up he embraced Rastafari principles on instinct;
· Describes childhood incidents of prejudices he faced growing up;
· Spent time in Jamaica in the 200’s, and met with many in the Rastafari Community;
· Was the subject of a TV5 documentary on Rastafari and released songs of Rastafari prayers;
· Is a member of the Ethiopia Africa Black Congress;
· Became a crown prophet on May 8, 2013, of the Bobo Shanti mansion;
· Had “a singular experience with an inmate advocacy group in federal correctional system,”
· “Spen[t] a lot of time in Jamaica”; and
· Had “[met] with many in the Rastafari Community,”
[30] They say he has not particularized details of these experiences, including “the title of the documentary, what it was about, his role in the documentary, how it is relevant to the opinion he offers or the Complaint, or how it makes him an expert;” what the Ethiopia Africa Black Congress is, how membership furthers his expertise, or any documentation that supports this claim; a description of the Chaplains of Bridges of Canada, [or] any details as to the dates or for how long Jax Lex volunteered, any specifics as to the nature of his work.” They submit that this Report is “a more glaring case than that of RR No. 5 where an expert report should not be admitted.” In this circumstance, I am satisfied the threshold for assessing whether he is a properly qualified expert is different than the Tribunal’s well-established practice of assessing the necessity of a medical professional to tender expert evidence at a hearing: RR v. Vancouver Aboriginal Child and Family Services Society (No. 5) , 2020 BCHRT 37.
[31] A properly qualified expert must also understand and be capable of giving evidence that is impartial, independent, and free of bias. The Supreme Court of Canada describes these concepts as follows:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her…
White Burgess at para. 32
[32] This threshold is not onerous. Generally, an expert’s testimony recognizing and accepting their duty will be sufficient to establish their independence and impartiality. The burden is on the party opposing admission of the evidence – here, the Respondent – to show there is a “realistic concern” that the expert is unable or unwilling to comply with their duty: White Burgess at para. 47; Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16, at para. 106
[33] The Respondent argues that there is nothing in the Report or Supporting Documents indicating Jah Lex is aware of the duty of impartiality, and to provide an objective and non-partisan opinion. They point to the following statements as evidence of the Report offering highly partisan opinions:
1. “It has come to the I knowledge that members of the Rastafari culture were denied the rights to follow and practice our spiritual way of life while incarcerated in Canadian establishments, furthermore oppressed, punished and faced prejudices by works of those establishments, for demanding the right to and for practicing their spiritual life;”
2. In this particular case, an inmate was demanding to cover his dead as it is a part of the Rastafari way of life. …Depending on the mansions, the time, places, and occasions, to cover their head remain similar but can differ, and should be respected;” and
3. Overall, head wraps hold a deep cultural and spiritual significance for the Rastafari movement. They serve as a symbol of identity, heritage and resistance against oppression, and are used in rituals and ceremonies.”
[34] I acknowledge the Respondent’s concerns that these appear to be facts that have not yet been determined and purport to answer the ultimate question in this hearing as to whether or not Mr. Somers was discriminated against on the basis of his religion. Viewed in conjunction with his overall writing style, I read these statements to be introductory remarks on his understanding of the case. As I explain later, the Respondents’ concerns can be addressed on cross-examination on the witness’ qualifications.
[35] In sum, I am satisfied that the expert witness’ proposed evidence meets the threshold criteria for admissibility. Though it is possible a court could have reached a different conclusion, I have applied these criteria with a view to fulfilling the purposes of the Code and assessing whether the evidence is necessary and appropriate. I turn now to the residual balancing to determine whether to admit the evidence.
E. Residual balancing
[36] I retain a residual discretion to exclude Jah Lex’s evidence based on a cost-benefit analysis, balancing the potential risks and benefits of admitting the evidence: White Burgess at para. 19; International Air Transport Assn v. Canada (Transportation Agency) , 2024 SCC 30 at para. 72. In White Burgess , the Court explained:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [at para. 54]
[37] The Respondents argue that Jax Lex has not met the criteria for being aware of his duty to provide fair, objective and non-partisan opinion evidence. While I addressed some of this above, I share some of the Respondent’s concerns. I note that some of Jah Lex’s opinions are not relevant, such as his own experiences of discrimination and his understanding of the experiences of other Rastafarian employees of the Bridges of Canada working in correctional institutions. These are opinions that would not be admissible at the hearing, and I put Mr. Somers on notice to caution their witness on what evidence is and is not appropriate to tender as an expert witness.
[38] The Respondents take issue with other parts of the Report. They say he makes assertions to support Mr. Somers’ position and purports to answer the ultimate question, and is of little assistance to the Tribunal. As an example, they point to his comments on the “Tam” head covering but he does not provide foundational information about how it is different from a Turban, why it may or may not be an acceptable compromise, which mansions find Tam wearing acceptable, and how the Tam relates to this complaint or Mr. Somers. They say by describing conditions where a Rastafarian may not be required to wear a head covering, he provides overbroad opinions that advocate for Mr. Somers’ position without any underpinning of support in the Report. Lastly, the Report does not indicate or make an assumption of which mansion Ms. Somers purports to have been a part of at the material time.
[39] I acknowledge and agree that Jah Lex’s evidence is under scrutiny for the potential of its impartiality, overbroad statements, and lack of a foundational underpinning of which mansion Mr. Somers is a part of or which requirements apply to which mansion. However, at this preliminary stage I am not persuaded that this prejudice outweighs the potential probative value of his evidence which, as we have explained, is likely to assist the Tribunal to situate the issues properly in their religious context and assess a material fact in dispute. I accept Mr. Somers’ proposal to consider the evidence to date to be a “written summary of opinion”. I can and will manage the impact of admitting the evidence by instructing the witness of what opinion evidence he may or may not give, allowing additional time, if needed, on cross-examination with the expert witness, and hearing arguments in closing submissions about Jah Lex’s qualifications, the admissibility of his opinion, and the weight to afford his testimony.
IV CONCLUSION
[40] I admit Jah Lex’s Report as a written summary of opinion pursuant to Rule 21(1). He will be called as a witness during Mr. Somers case and be subject to examination by the parties.
[41] The Reply Report is in abeyance until such time the parties mutually agree.
Laila Said Alam
Tribunal Member