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Thursday
Jan262012

The Goudge Report And Expert Evidence

I had the pleasure of attending a top-notch legal seminar at the Alberta Law Conference organized by the Canadian Bar Association on Evidence and Advocacy. Madam Justice SheilahMartin moderated the main panel discussion, presented as a joint session for all practitioners in family, criminal, and civil law including members of the judiciary, with Mr. Justice Goudge of the Ontario Court of Appeal and Toronto criminal lawyer, Mark Sandler as keynote speakers. The presentation was excellent and was about excellence as the title of the panel suggested: Recommitting to Excellent Expert Evidence.

The basis of the discussion was the 2008 Goudge Report on the Inquiry Into Pediatric Forensic Pathology in Ontario and the recommendations contained therein for the just and appropriate use of expert evidence in the criminal justice system. The Inquiry was struck after systemic frailties surfaced in pediatric forensic pathology in Ontario, which was marked by the flawed and inadequate methodology used by the primary pathologist in the field: Dr. Charles Smith. These flaws were exacerbated by a system, which unquestionably supported and approved of Dr. Smith’s role as an expert. The result was devastating as loving parents and devoted caregivers were wrongly convicted of killing the children they loved.

In one such case, called Amber’s Case after the child who died, the young neighbourhood babysitter was accused of shaking Amber to death. The teen insisted the child fell down a set of stairs but Dr. Smith, in his “expert” opinion, adamantly maintained the teen’s scenario was impossible. The teenager was ultimately acquitted after the Trial Judge found serious flaws in the expert evidence. Flaws, which remained uncorrected in future cases. Amazingly, the exonerated teen went on to become a Crown Attorney. This is a perfect example of the human ability to triumphantly overcome even the greatest adversity.

There were a number of factors contributing to these “unassailable” convictions. For one, Dr. Smith considered himself a Crown witness who was committed to the ultimate goal of conviction. Oftentimes, he was permitted to give evidence in areas outside of his knowledge and expertise. Much of his opinion was not based on scientific evidence but was merely anecdotal. Furthermore, his reputation was so fixed that even defence lawyers were reticent to challenge his position.

All of these factors came together in a system, which favoured the admissibility of forensic evidence from accepted experts without inquiring into the actual foundation of the opinion. There was no question of how Smith came to his opinion. There was no inquiry into the absence of quality control or peer review of his conclusions. Reliability and accuracy were presumed once the Crown established his expertise. Such expertise was easily established based upon Smith’s position as Director of the Ontario Pediatric Forensic Pathology Unit at the prestigious Hospital For Sick Kids in Toronto. The admissibility of his evidence was guaranteed based upon the innumerable times he was accepted as an expert at trial. As a result, conviction was also virtually guaranteed.

There are many lessons to be learned both systemically, in terms of the role of the criminal justice system, and individually, in terms of the specific functions of the participants in that system. Justice Goudge counseled increased vigilance from all participants: be it the “gatekeepers” function of the Trial Judge or the vital role of defence counsel in understanding and applying the evidentiary rules. Cases such as the Supreme Court of Canada decision in Mohan and the Ontario Court of Appeal (leave to SCC refused) in Abbey, which set out the test to be applied in accepting expert evidence, must be required reading when dealing with any kind of expert evidence. There must be no fear in dealing with experts and no broad based acceptance of their expertise when a life is in jeopardy. Where an expert’s evidence is concerned, only evidence-based opinion should be admitted if an accused is truly to be tried in accordance with our fundamental values of fairness, impartiality, and justice.

Sadly, even with the knowledge of the past, the system is still open to failure. Yesterday, the Texas Court of Criminal Appeals set aside a murder conviction, which was based on faulty forensic opinion evidence. The frailties of the evidence had been uncovered by investigative reporting. The accused had been serving a 60-year prison sentence.

Hopefully, the implementation of the safeguards as outlined in this posting, and in the other recommendations found in the Goudge Report, will prevent any recurrence of these injustices and will provide, instead, a mechanism for a fair trial.

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