Chapter 6 - Forensic Evidence and Expert Testimony

I. Introduction

Science continues to play an important role in advancing the truth-seeking function of our criminal courts. As we know only too well, however, forensic science brings with it many potential dangers: science itself is sometimes unreliable, or less reliable than it is believed or stated to be, and can be misapplied in a forensic context. These dangers are heightened by the fact that science is admitted in our courtrooms through the mouths of expert witnesses who give opinion evidence on matters that, by definition, are outside of the knowledge of ordinary people.

Our appreciation of the potential dangers of forensic and expert evidence has come at the expense of individuals who have been wrongfully convicted and through the work of the public inquiries that have been established to examine “what went wrong”. The reports and recommendations of inquiries such as the Driskell and Goudge Inquiries have provided us with a critical lens through which we can evaluate the integrity of forensic science and expert testimony.

There is no doubt that, as a result of these inquiries, all players within the justice system have a heightened awareness of the need to ensure that expert opinion evidence is received from properly qualified experts whose opinions are based on reliable science. But it is equally clear that for all of the progress that has been made, we must continue to be vigilant in ensuring that the trust we place in science and expert witnesses is well placed. For example, in 2016 an expert panel in the United States identified three forensic disciplines (bite mark, firearms and hair analysis) which in its view lacked basic foundational validity.^{Footnote 192} In Canada, one need look no further than the findings of the Lang Report and the Motherisk Inquiry Report on the flawed hair testing conducted by the Motherisk Drug Testing Laboratory at the Hospital for Sick Children between 2005 and 2015 - the same hospital where disgraced pathologist Charles Smith worked - to appreciate that there is no room for complacency.^{Footnote 193}

II. 2005 Recommendations

1. Prosecutors should receive training on the proper use, examination and cross-examination of expert witnesses during ongoing and regular education sessions.
2. The Heads of Prosecutions Committee should consider the feasibility of establishing a national central repository to catalog and track, among others:
   • case law;
   • newsletters and articles;
   • reliability of current techniques;
   • the latest developments and advancements in specific fields of expertise;
   • sources of literature and study guides;
   • directories of professional organizations from across the country (including criteria for the qualifications of specific experts);
   • prosecution policies;
   • teaching aids. This applies to all Web-based models permitting online access to the data and regular updating of information to maintain currency.
3. Prosecutors should not shy away from the use of and reliance on novel scientific technique or theory in the appropriate situation, providing there is a sufficient foundation to establish the reliability and necessity of these opinions and that the probative value does not exceed the potential prejudicial effects.
4. Prosecutors should be reminded of the existence of Section 657.3 of the Criminal Code which sets out the requirements and reciprocal obligations of disclosure imposed on all parties to a proceeding intending to tender expert evidence at trial.

III. 2011 Recommendations

The Subcommittee made the following additional recommendations:

1. Continuing multi-disciplinary legal education among the bar, the judiciary, and the scientific disciplines and police is of utmost importance and will assist all participants in becoming literate with respect to basic scientific concepts, developing scientific areas, methods, and techniques.
2. There should be continuing education for prosecutors on the proper use of, and how to examine and cross-examine, expert witnesses.
3. The federal government should continue its role in updating the provinces and territories with current, relevant information in this area, including press releases, reports, etc. This recommendation effectively and efficiently implements Recommendation 2 in the 2005 Report.
4. Each province or territory should encourage an appropriate network, both within the province/ territory and with other provinces/ territories, when searching for expert witnesses for their cases.
5. Case conferences between Crown experts and defence experts should be encouraged to try to narrow and/or potentially resolve the scientific issues in a given case. Crown and defence counsel should encourage these case conferences and request that issues relevant to the case be addressed.
6. Some international jurisdictions have rules relating to reciprocal disclosure of expert evidence. The Criminal Code addresses this issue in a limited way. Consideration should be given to strengthening the Criminal Code provisions to provide for reciprocal disclosure well in advance of trial. This greatly enhances a full consideration of scientific issues affecting the soundness of prosecutions and convictions.

IV. Canadian Commissions of Inquiry Since 2011

The 2011 Report identified and discussed three public inquiries conducted in Canada between 2005 and 2011 that addressed issues related to forensic evidence and expert testimony: the Lamer Inquiry (2006), the Driskell Inquiry (2007) and the Goudge Inquiry (2008). The lessons revealed, and recommendations made, by these and other earlier inquiries, and especially the Goudge Inquiry, continue to have a significant impact on forensic sciences and the criminal justice system in Canada, with stakeholders approaching the forensic sciences and the reception of expert evidence with heightened rigour and caution.

Since the 2011 Report there have been two related Ontario inquiries dealing with flawed forensic science and expert evidence from the Motherisk Drug Testing Laboratory (MDTL) at the Hospital for Sick Children in Toronto: the Motherisk Hair Analysis Independent Review^{Footnote 194} and the Motherisk Commission. The reports of both emphasize the dangers of ignoring the lessons of the past and the need for constant and continued vigilance.

a) The Motherisk Hair Analysis Independent Review

Commissioner Goudge’s recommendations arising from his review of forensic pathology apply with equal force to the science of forensic toxicology as it relates to hair tests. Of particular relevance are his many recommendations aimed at reducing the risks of an expert opinion being misunderstood: for example, his emphasis on the importance of forensic training, the careful use of terminology and plain language in opinion evidence, transparency, and clear communication of those areas where there are limitations on or controversy concerning the opinion.

Justice Susan Lang, Report of the Motherisk Hair Analysis Independent Review, 2015^{Footnote 195}

The Motherisk Drug Test Laboratory (MDTL) began as a research laboratory at Toronto’s Hospital for Sick Children and, gradually, evolved into a clinical and forensic laboratory. During the 10-year period between 2005 and 2015, it tested thousands of hair samples for drug and alcohol consumption and exposure. While the results of this testing were used primarily in child protection proceedings, they were also used in criminal proceedings in a handful of cases.

Serious concerns regarding the MDTL were recognized following the Ontario Court of Appeal decision in R. v. Broomfield,^{Footnote 196} which involved two convictions related to administering cocaine to a child. In that case, the Court admitted expert fresh evidence from the Deputy Chief Toxicologist of the Office of the Chief Medical Examiner in Alberta which called into serious question the integrity of the MDTL’s hair-testing methodology and its interpretation of the test results. The Court of Appeal held that the trial judge was unaware of the existence of a genuine controversy about the use of the testing methods relied upon. It indicated that while ordinarily a new trial would be appropriate, it was acceding to the Crown’s request to stay the proceedings on the basis that a new trial would not be in the interests of justice.

The Broomfield decision was released on October 14, 2014. On November 26, 2014, the Ontario government appointed former Ontario Court of Appeal Justice Susan Lang to conduct an independent review of the Motherisk hair analysis program.

Justice Lang released her Report of the Motherisk Hair Analysis Independent Review (the Lang Report) on December 15, 2015. The report cited a myriad of deficiencies at the MDTL and concluded that the “hair-strand drug and alcohol testing used by the MDTL between 2005 and 2015 was inadequate and unreliable for use in child protection and criminal proceedings.”^{Footnote 197} Of particular concern were the following findings:

• Until August of 2010, the MDTL routinely relied on unconfirmed results of ELISA tests - tests expressly intended for use only as preliminary screening tests - to identify positive hair samples.
• The ELISA tests were used to calculate the concentration of drugs in the samples, something which was simply unheard of in forensic toxicology laboratories.
• Although operating as a forensic laboratory, the MDTL had no written Standard Operating Procedures. As a result, its practices were unacceptable and fell well below expected standards for a forensic laboratory.
• The MDTL’s communications to its “customers” were deficient in numerous respects, including the misinterpretation and over-interpretation of test results. Indeed, no one at the MDTL had the expertise to provide forensic toxicological interpretations of the hair test results.^{Footnote 198}

Justice Lang concluded that “the use of the Laboratory’s hair-testing evidence in child protection and criminal proceedings has serious implications for the fairness of those proceedings and warrants an additional review.”^{Footnote 199} She contemplated a review of cases where “an unreliable MDTL test result may have made a material contribution to the outcome of the case.”^{Footnote 200}

Although the Lang Report focused primarily on the use of flawed MDTL testing in the context of child protection proceedings, the testing was used as evidence in a handful of criminal proceedings as well. In the context of the criminal cases, the Lang Report referred to convicted persons’ rights of appeal and recommended that in cases where an individual seeks to set aside convictions based on MDTL evidence, the Crown should assist in facilitating and expediting access to the Court of Appeal.^{Footnote 201}

b) The Motherisk Commission

The Lang Report’s recommendations led to the establishment in January 2016 of the Motherisk Commission, headed by Justice Judith Beaman. The Commission’s focus was on the use of MDTL evidence in child protection proceedings. It was tasked with reviewing cases as well as providing counselling and legal funding in some cases. It reviewed child protection cases in Ontario between 1990 and 2015. The final Report of the Motherisk Commission was released on February 26, 2018. It determined that of 1,271 cases that were comprehensively reviewed, MDTL testing had a “substantial impact” in 56 of them: “Behind every one of the 56 ‘cases,’ families were broken apart and relationships among children, siblings, parents and extended families and communities we damaged or lost.”^{Footnote 202} One of its findings was that this testing was disproportionately used in child welfare proceedings involving Indigenous people.

The Report of the Motherisk Commission made numerous findings and recommendations related to the child welfare system in Ontario. Of particular relevance to the subject of this report were its findings and recommendations related to the use of expert evidence:

Child protection law has special rules of evidence that recognize the need to protect children and to make decisions about their care as quickly as possible. However, the relaxed approach to admitting the test results in the cases we reviewed pushed these less rigorous standards of evidence beyond what could reasonably be considered necessary or fair.^{Footnote 203}

The report also emphasized the importance of the role of judges as gatekeepers in respect of the receipt of expert evidence and recommended increased judicial education to enable judges to better fulfill this role. Other recommendations included suggested changes to the Family Law Rules to require parties who wish to introduce medical or scientific test results to accompany any such results with a report from an expert explaining the meaning of the test results and the underlying science behind the testing. Such a report should include any known possible impacts of gender, socio-economic status, culture, race or other factors in the testing or assessment of the tests and what, if any, steps the expert took to address them. It also recommended amendments to the Family Law Rules to require courts to address the necessity and reliability of expert evidence through a voir dire prior to admission, and to similarly tighten the rules governing the receipt of expert evidence at temporary and summary judgment hearings.^{Footnote 204}

c) Responses to Problems with the Motherisk Drug Testing Laboratory

Upon release of the Lang Report, the Attorney General of Ontario announced that any affected criminal cases would be referred to the Ontario Criminal Convictions Review Committee (OCCRC). The OCCRC reviewed seven criminal cases, six of which resulted in convictions. Other than the Broomfield case, the OCCRC was of the view that the MDTL evidence had a significant impact on one conviction. Although the OCCRC sought to give notice of its findings to the convicted individual, it was learned that this person had died. Since the OCCRC’s initial work a further criminal case has come to light and is to be reviewed.

When the Motherisk Commission’s Report was released, Ontario’s Minister of Children and Youth Services and the Attorney General of Ontario made a joint statement accepting the recommendations.^{Footnote 205} As the Motherisk Report was just released at the time of writing, the Subcommittee cannot yet comment on the full impact of the Report or the specific implementation of its recommendations.

Although the MDTL was located in Toronto, it conducted testing on samples submitted by several other provinces. As in Ontario, the testing was relied on primarily in child welfare cases. Several other provinces, including British Columbia,^{Footnote 206} New Brunswick and Nova Scotia have begun internal reviews of the use of MDTL hair testing in child welfare proceedings. These reviews are of varying degrees of scope and completion, and questions have been raised about whether independent inquiries are needed. In some provinces, such as British Columbia, the government has stated that it was awaiting the findings of the Motherisk Commission before determining how to move forward. Again, as the Report of the Motherisk Commission was just released at the time of the writing of this report, it is too soon to make any definitive comments here.

d) Update on Prosecution Services Response to the Driskell Inquiry

In 2007, the Driskell Inquiry Report detailed the role that problems relating to the use of hair microscopy^{Footnote 207} evidence played in the wrongful conviction of James Driskell. It recommended that “microscopic hair comparison evidence should be received with great caution and, when received, jurors should be warned of the inherent frailties of such evidence.” It also recommended that the Attorneys General of the provinces and territories review other criminal cases in which hair microscopy testing was used.

The 2011 Report outlined the response by prosecution services in Canada to the Driskell Inquiry Report, and noted that all Canadian jurisdictions had conducted some form of review.^{Footnote 208} While at the time of the 2011 Report other jurisdictions had completed their reviews, Ontario had completed only the initial phases of its review, including the identification of cases for detailed review. The final phase - a detailed review by the Ontario Criminal Convictions Review Committee (OCCRC) of those cases to determine whether there was a reasonable basis to conclude that a miscarriage of justice may have occurred - had yet to be completed. The OCCRC’s final review has since been completed. One convicted person was alerted to the OCCRC’s views and offered an opportunity to have DNA testing conducted on the hair sample in issue. That offer was declined.

V. International Developments

The scrutiny being brought to bear on the forensic science disciplines and expert evidence as a result of their role in wrongful convictions is by no means limited to Canada. Internationally, and particularly in the United States, the state of forensic science has been the subject of self-examination and critique by scientists and experts themselves. As in Canada, lawyers and judges in other countries are focused on the integrity of expert evidence and the need to guard against the admission of unreliable and misleading evidence. The concern for both science and the justice system is to ensure that expert opinion evidence received by the courts is both reliable and accurately presented.

An exhaustive review of international developments is beyond the scope of this report. However, two developments are illustrative of the important work that has and continues to be done in these areas. One is the U.S. President’s Council of Advisors on Science and Technology (PCAST) 2016 report Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. It is far and away the most comprehensive statement on the state of forensic sciences since the release of the 2011 Report, and its influence has transcended the borders of the United States.The other is the Law Commission in England and Wales 2011 report Expert Evidence in Criminal Proceedings in England and Wales,^{Footnote 209}and the responses of the government and the courts in England and Wales to that report.

a) United States of America: President’s Council of Advisors on Science and Technology (PCAST), Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, September 2016

… neither experience nor judgment, nor good professional practices (such as certification programs and accreditation programs, standardized protocols, proficiency testing, and codes of ethics) can substitute for actual evidence of foundational validity and reliability. The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of “judgment.” It is an empirical matter for which only empirical evidence is relevant. Similarly, an expert’s expression of confidence based on personal professional experience or expressions of consensus among practitioners about the accuracy of their field is no substitute for error rates estimated from relevant studies. For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.^{Footnote 201}

In 2009, the National Research Council issued its report, Strengthening Forensic Science in the United States: A Path Forward (the “NRC Report”).^{Footnote 211}It identified critical and systemic weaknesses in several forensic disciplines and concluded that “much forensic evidence – including, for example, bitemark and firearm and toolmark identifications – is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline.”^{Footnote 212}

The NRC Report generated extensive discussion within the forensic disciplines, government, and the criminal justice system and led to the establishment in 2013 of the National Commission on Forensic Science (NCFS) within the U.S. Department of Justice and the Organization for Scientific Area Committees for Forensic Science at the National Institution of Standards and Technology.^{Footnote 213} The NCFS was a federal advisory body with a mandate to enhance the practice and reliability of forensic science. It was comprised of federal, state and local forensic science service providers; research scientists and academics; law enforcement officials; prosecutors, defense attorneys and judges; and other stakeholders from across the country.

During its four years in existence, the NCFS made recommendations on a variety of issues related to forensic sciences, including accreditation, certification and proficiency testing. The U.S. Department of Justice formally accepted several of the NCFS recommendations, including its recommendation that forensic experts not use phrases like “reasonable scientific certainty ”or“ reasonable [forensic discipline] certainty” in their reports or testimony.^{Footnote 214} The NCFS’s charter expired on April 23, 2017 and was not renewed by the new Attorney General Jeff Sessions.

In 2015, President Obama asked his President’s Council of Advisors on Science and Technology (PCAST) whether there were additional steps that could be taken to help ensure the validity of forensic evidence.^{Footnote 215}PCAST identified and sought to address two gaps: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods; and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. The Council conducted an in-depth examination of these two issues in the context of “feature-comparison”^{Footnote 216} disciplines which had been identified in the 2009 NRC Report as particularly vulnerable to shortcomings, such as: inadequate training and education; inadequate resources and facilities; a lack of standardization; the absence of systems to determine error rates; and in some cases no meaningful scientific validation.

The PCAST Report was published in January 2016. It issued a strong statement that forensic methodology must be both foundationally valid and valid as it is applied. Foundational validity requires that the scientific method“ be shown, based on empirical studies, to be repeatable, reproducible, and accurate, at levels that have been measured” and for which valid estimates of the method’s accuracy can be given. It “means that a method can, in principle, be reliable”. The nature of the empirical studies required depend on whether the feature-comparison method is objective or subjective. Subjective feature-comparisons, such as hair analysis, “require particularly careful scrutiny because their heavy reliance on human judgment means they are especially vulnerable to human error, inconsistency across examiners, and cognitive bias”. Subjective feature-comparison methods are generally validated through “black box” studies in which many examiners render decisions about many independent tests to determine error rates. The PCAST report asserted that “without appropriate estimates of accuracy, an examiner’s statement that two samples are similar –or even indistinguishable –is scientifically meaningless” and cautioned that “statements claiming or implying greater certainty than demonstrated by empirical evidence are scientifically invalid.”^{Footnote 217}

Validity as applied “means that the method has been reliably applied in practice”. It has two prongs. First, the “forensic examiner must have been shown to be capable of reliably applying the method and must actually have done so”. Second, the “practitioner’s assertions about the probative value of proposed identifications must be scientifically valid. The expert should report theoverall false-positive rate and sensitivity for the method established in the studies of foundational validity.”^{Footnote 218}

PCAST examined six forensic disciplines: single source and simple mixture DNA^{Footnote 219}; complex mixture DNA; bitemarks; latent fingerprints; firearms identification; and footwear analysis. It also considered hair analysis, although it considered recently reviewed data rather than conducting an in-depth evaluation of its scientific validity. In its report, PCAST issued a reminder that its findings reflected PCAST’s views at a particular point in time and that studies published subsequent to the PCAST report may “change the landscape” as PCAST found it:

… the evaluation of scientific validity is necessarily based on the available scientific evidence at a point in time. Some methods that have not been shown to be foundationally valid may ultimately be found to be reliable, although significant modifications to the methods may be required to achieve this goal. Other methods may not be salvageable, as was the case with compositional bullet lead analysis and is likely the case with bitemarks. Still others may be subsumed by different but more reliable methods, much as DNAanalysis has replaced other methods in some instances.

A summary of PCAST’s findings is set out below.

Single-Source and Simple-Mixture DNA analysis:

DNA analysis is an objective method in which the laboratory protocols are precisely defined and the interpretation involves little or no human judgment. Each of the steps has been found to be “repeatable, reproducible, and accurate”. Although human error can occur though sample mix-ups, contamination, incorrect interpretation and errors in reporting, these errors can be minimized through proficiency testing.^{Footnote 220}

Complex-Mixture DNA analysis:

DNA analysis of complex mixtures is inherently difficult. Interpreting a mixed profile is different from, and more challenging than, interpreting a simple profile. PCAST found that initial approaches to the interpretation of complex mixtures that relied on subjective judgment by examiners and simplified calculations have not been found to be foundationally valid and are not reliable. It noted, however, the development of computer programs that applied various algorithms to interpret complex mixtures in an objective way. PCAST found that these programs clearly represent a major improvement over purely subjective interpretation, and while studies have validated their use with three-person mixtures, further study was required to support validity across broader settings.^{Footnote 221}

Bitemark analysis:

“Bitemark analysis is a subjective method. Current protocols do not provide well-defined standards concerning the identification of features or the degree of similarity that must be identified to support a reliable conclusion that the mark could have or could not have been created by the dentition in question. Conclusions about all these matters are left to the examiner’s judgment”. PCAST concluded as follows:

… Few studies –and no appropriate black box studies –have been undertaken to study the ability of examiners to accurately identify the source of a bitemark. In these studies, the observed false-positive rates were very high –typically above ten percent and sometimes far above. Moreover, several of these studies employed inappropriate closed-set designs that are likely to underestimate the true false positive rate. Indeed, availables cientific evidence strongly suggests that examiners not only cannot identify the source of bitemark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bitemark. For these reasons, PCAST finds the bitemark analysisis far from meeting the scientific standards for foundational validity.”^{Footnote 222}

Latent Fingerprint Analysis:

Latent fingerprint analysis is the comparison of a “latent print” – a complete or partial friction ridge impression from an unknown subject on a surface with one or more prints from a known source or sources. PCAST found that latent fingerprint analysis is a foundationally valid subjective methodology – albeit one with a substantial false positive rate which highlighted the importance of stating false-positive rates based on properly designed validation studies. PCAST commented on the importance of seeking to avoid confirmation and contextual bias, and for proficiency testing. It also commented on the desirability of converting latent-print analysis from a subjective to an objective method through the use of automated image analysis.^{Footnote 223}

Firearms Analysis:

PCAST noted that there was only one as yet unpublished and appropriately designed black box study of firearms analysis – many earlier studies having been inappropriately designed. Foundational validity required that there be more than one such study – ideally published in a peer-reviewed journal. PCAST concluded that “[w]hether firearms analysis should be deemed admissible based on current evidence is a decision that belong to the courts. If firearms analysis is allowed in court, the scientific criteria for validity as applied should be understood to require clearly reporting the error rates seen in the one appropriately designed black-box study.”^{Footnote 224}As with latent-prints, PCAST saw potential for firearms analysis to transform itself from a subjective to an objective method.

Footwear Analysis:

PCAST focussed on the reliability of conclusions that an impression was likely to have come from a specific piece of footwear as opposed to more readily discernable class characteristics such as size and make. It concluded that there were “no appropriate black-box studies to support the foundational validity of footwear analysis to associate shoeprints with particular shoes based on specific identifying marks. Such associations are unsupported by any meaningful evidence or estimates of their accuracy and thus are not scientifically valid.”^{Footnote 225}

Hair Analysis:

PCAST did not undertake a detailed review of hair analysis, but referred to recent U.S. Department of Justice guidelines which stated that “hair comparison has been demonstrated to be a valid and reliable scientific methodology” although “microscopic hair comparisons alone cannot lead to person identification and it is crucial that this limitation be conveyed both in the written report and in testimony.”^{Footnote 226} PCAST’s review of available studies found that they did not establish the foundational validity and reliability of hair analysis.

On January 6, 2017, an Addendum to the PCAST Report on Forensic Science in Criminal Courts was issued following stakeholders’ responses to the original report. PCAST affirmed its position that empirical studies of subjective forensic feature comparison methods is the only way to establish the validity and reliability of such methods, and that absent such studies such methods should not be accepted as such.^{Footnote 227}It went on to clarify that while the PCAST report supported “black box” studies^{Footnote 228} to establish empirical validity, it did not intend to discount other objective methods.

The PCAST Report’s findings have real significance in Canada, where our courts rely on similar science as in the U.S. In particular, the PCAST’s findings that bitemark, footwear and hair analysis all lack foundational validity raise a concern as to whether these kinds of evidence should be admissible in our courts at all. In this regard it is worth noting that awareness of the problems with hair analysis emerged in Canada even before the NCR and PCAST Reports, and were the subject of the Driskell Inquiry.

The PCAST Report’s findings on other forensic disciplines which are heavily dependent on subjective interpretation, such as fingerprint and firearms analysis, suggest that, at a minimum, this evidence should be admitted only with caution and where the trier of fact is made fully aware of the limitations of the evidence.

United Kingdom: The Law Commission: Expert Evidence in Criminal Proceedings in England and Wales

In 2011, the Law Commission of England and Wales released a report to Parliament proposing draft legislation to consolidate and reform the law relating to expert evidence in criminal proceedings.^{Footnote 229} Building on a 2009 report,^{Footnote 230} which had identified a variety of issues and problems arising from wrongful conviction cases and had made provisional recommendations to develop a new reliability-based test for the admissibility of expert opinion evidence, the Law Commission sought to address a “concern that expert opinion evidence was being admitted in criminal proceedings too readily, with insufficient scrutiny”. The Commission’s 2011 report recommended that there be a single legislative framework governing the admissibility of all expert evidence in criminal proceedings.This framework would include a codification of existing common law concerning expert opinion evidence, including the “Turner test” (the requirement that the court requires the assistance of an expert witness), that the evidence be given by a qualified expert in the relevant field, and that the expert be able to provide objective, impartial evidence.^{Footnote 231} It offered a proposed bill that included a stringent reliability test stipulating that “expert opinion evidence is admissible in criminal proceedings only if it is sufficiently reliable to be admitted”. Reliability would be established if an opinion is soundly based and the strength of the opinion is warranted having regard to the grounds on which it was based. The bill provided a list of factors to be considered in determining reliability, as well as factors that might lead to a finding of unreliability. The bill also allowed the courts to “disapply” the test, so long as this was not done routinely and would not reduce the reliability test to a nominal barrier to the introduction of unreliable expert opinion evidence.

Although the British government did not enact the Law Commission’s draft bill, it did make amendments to Criminal Procedure Rule, Part 33. These amendments took effect on October 14, 2014, and included provision that an expert’s duty to the Court includes obligations to expressly define area(s) of expertise when preparing reports and testifying, and to be proactive in identifying areas that fall outside of their expertise. The amendments also required expert reports to “include such information as the court may need to decide whether the expert’s opinion is sufficiently reliable to be admissible as evidence”.^{Footnote 232}

In addition, a new Practice Direction was issued by the Courts.^{Footnote 233} It notes that the government did not pass the Law Commission’s draft bill, and stated that “Nothing at common law precludes assessment by the court of the reliability of an expert opinion by reference to substantially similar factors to those the Law Commission recommended as conditions of admissibility, and courts are encouraged actively to enquire into such factors.”^{Footnote 234}The Practice Direction sets out the “factors which the court may take into account in determining the reliability of expert opinion, and especially of expert scientific opinion”. These include:

1. the extent and quality of the data on which the expert’s opinion is based, and the validity of the methods by which they were obtained;
2. if the expert’s opinion relies on an inference from any findings, whether the opinion properly explains how safe or unsafe the inference is (whether by reference to statistical significance or in other appropriate terms);
3. if the expert’s opinion relies on the results of the use of any method (for instance, a test, measurement or survey), whether the opinion takes proper account of matters, such as the degree of precision or margin of uncertainty, affecting the accuracy or reliability of those results;
4. the extent to which any material upon which the expert’s opinion is based has been reviewed by others with relevant expertise (for instance, in peer‐reviewed publications), and the views of those others on that material;
5. the extent to which the expert’s opinion is based on material falling outside the expert’s own field of expertise;
6. the completeness of the information which was available to the expert, and whether the expert took account of all relevant information in arriving at the opinion (including information as to the context of any facts to which the opinion relates);
7. if there is a range of expert opinion on the matter in question, where in the range the expert’s own opinion lies and whether the expert’s preference has been properly explained; and
8. whether the expert’s methods followed established practice in the field and, if they did not, whether the reason for the divergence has been properly explained.^{Footnote 235}

It further stated that, “in considering reliability, and especially the reliability of expert scientific opinion, the court should be astute to identify potential flaws in such opinion which detract from its reliability, such as:

1. being based on a hypothesis which has not been subjected to sufficient scrutiny (including, where appropriate, experimental or other testing), or which has failed to stand up to scrutiny;
2. being based on an unjustifiable assumption;
3. being based on flawed data;
4. relying on an examination, technique, method or process which was not properly carried out or applied, or was not appropriate for use in the particular case; or
5. relying on an inference or conclusion which has not been properly reached.^{Footnote 236}

Asubsequent Practice Direction issued November 16, 2016,^{Footnote 237} directed the substance of the “statement and declaration” required by the Criminal Appeal Rules. It requires experts to declare, amongst other things, that their overriding duty is to give objective unbiased evidence within their expertise, that they have no conflict of interest or pecuniary or other interest in the outcome of the case, that they have clearly stated any qualifications to their opinion and have endeavoured to include matters which might adversely affect it, the validity of their opinion, and that they have complied with their duty of disclosure.

VI. Legal Developments and Commentary

Cases Involving Dr. Charles Smith (1991-2001)

Ontario’s Chief Coroner conducted a review of cases between 1991 and 2001 to identify those that resulted in criminal convictions where there was problematic evidence from Dr. Charles Smith. The Chief Coroner’s Review identified 13 cases in which there had been a conviction (or NCR finding in one case) and where there were significant concerns about Dr. Smith’s reports and/or testimony.^{Footnote 238} The results of the Coroner’s Review led directly to the establishment of the Goudge Inquiry. Recommendation 141 of the Goudge Report indicated that in “cases in which it is sought to set aside convictions based on errors in Dr. Charles Smith’s work identified by the Chief Coroner’s Review, the Crown Law Office - Criminal should assist in expediting the convicted person’s access to the Court of Appeal and in facilitating a determination of the real substantive issues in the cases, unencumbered by unnecessary procedural impediments.”^{Footnote 239}

No legal action was taken in three of the 13 cases identified by the Chief Coroner’s Review. All of the remaining 10 cases have now been dealt with at the Ontario Court of Appeal. A brief summary of the outcomes of the cases is set out in the chart below.

Dr. Smith Cases - Post 1991^{Footnote 240}

Case Law

In Chapter 18 of the Goudge Inquiry Report, Justice Goudge discussed the role of the courts in ensuring the integrity of expert evidence. He made numerous recommendations emphasizing that expert evidence should be received by experts who are properly qualified, who testify within a clearly identified area of expertise, and who base their opinions on science which meets standards of threshold reliability.^{Footnote 241} A review of recent jurisprudence dealing with expert evidence suggests that our courts continue to strive to give effect to Justice Goudge’s recommendations.

Of particular note is the Supreme Court of Canada’s decision in White Burgess, in which the Court provided a restatement of the Mohan test for the admissibility of expert opinion evidence and considered where the expert’s duty to the Court fits within that test. Although a civil case, the decision in White Burgess applies equally to criminal cases. Since its release, there has been a renewed focus on the impartiality of expert witnesses and White Burgess has been considered and applied by trial and appellate courts in the criminal context in numerous cases, some of which are noted below.

Expert Qualifications: The Duty to Give Fair, Objective and Non-Partisan Evidence

a) White Burgess Langille v. Abbott and Haliburton 2015 SCC 23

… we are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice …. As observed by Beveridge J.A. in this case [referring to the reasons in the court below], The Commission of Proceedings Involving Guy Paul Morin: Report (1998) authored by the Honourable Fred Kaufman and the Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008) conducted by the Honourable Stephen T. Goudge provide two striking examples where “ [s]eemingly solid and impartial, but flawed, forensic scientific opinion has played a prominent role in miscarriages of justice: para.105.” Other reports outline the critical need for impartial and independent expert evidence in civil litigation.

Justice Cromwell, White Burgess, supra at para 12

White Burgess involved a civil action between shareholders and the auditors of their company. The shareholders retained a forensic accountant and sought to tender her as an expert in the legal proceedings. The auditors objected to the admissibility of the evidence on the basis that the expert was not an impartial expert witness. The Supreme Court held that there was no evidence that the proposed expert was biased or acting as an advocate for the party who called her, and found that she was aware of her ultimate duty to the court.

Writing for the Court, Justice Cromwell adopted Justice Doherty’s reformulation of the Mohan test with “minor adjustments”. The first stage of the test focuses on the threshold requirements of admissibility - the four traditional Mohan factors (logical relevance, necessity, absence of an exclusionary rule and a properly qualified expert) plus the additional requirement of reliability in cases involving novel or contested science. Evidence that does not meet these requirements should be excluded. The second stage is the residual or gatekeeper stage, where the trial judge balances the potential risks and benefits to ensure that the potential helpfulness of the evidence is not outweighed by the risk that the dangers associated with expert evidence will materialize.

The decision also clarified a debate in the jurisprudence on whether concerns about whether the expert can discharge their duty to the court - will their evidence be impartial, independent, and free of bias - goes to should the evidence be admitted rather than how much weight to attach to it. The Court’s answer was that it goes to both. The expert’s duty is a central aspect of the threshold requirement. While an expert’s independence and impartiality should not be presumed, once an expert testifies that they will fulfill their duty, the burden falls to a party challenging their evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If they do, the party seeking to call the evidence must rebut the concern on a balance of probabilities. If this burden isn’t met, then the evidence “or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded”. Even where the expert evidence meets the threshold requirement, the trial judge still has a residual discretion to exclude the evidence under the second or gatekeeper stage of the inquiry.^{Footnote 242}

In respect of the application of the test, the SCC made the following additional comments:

• The threshold requirement is not onerous and should not result in trials becoming longer. It will likely be quite rare that an expert’s evidence would be excluded for failing to meet it.^{Footnote 243}
• A mere employment relationship with the party calling the evidence will be insufficient to meet the threshold. A direct financial interest in the outcome of the litigation, a close familial relationship, or situations where the expert would face professional liability if his evidence is not accepted by the court, will cause more concern.^{Footnote 244}
• Exclusion will occur only in very clear cases where the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear inability to meet the duty to the court can still be taken into account in the overall prejudicial vs. probative value analysis.^{Footnote 245}
• The question of a reasonable apprehension of bias does not enter into the admissibility analysis.
• The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill their primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.^{Footnote 246}

b) R. v. Tang 2015 ONCA 470

In Tang, the Ontario Court of Appeal applied White Burgess in the context of a criminal case that had originally begun as an Ontario Securities Commission (OSC) investigation. At issue on appeal was whether opinion evidence from a forensic accountant who was in the employ of the OSC and involved in the investigation was wrongly admitted at trial as lacking in independence and impartiality. In its endorsement, the Court affirmed that White Burgess did not establish a per se rule that would automatically disqualify an expert with a prior connection with an investigation and stated that this issue could only be determined with reference to the context and facts specific to the case:

The nature of the prior investigation, the role played by the individual expert in that investigation, and the nature of the proposed expert evidence would all be important considerations in the determination of whether the expert’s prior involvement made the case was (sic) one of those relatively rare cases in which an expert’s lack of independence or impartiality provided a basis for holding that the expert was not competent to testify. As Burgess indicates, in most cases, suggestions that an expert witness lacks independence or impartiality will go to the weight of the expert’s evidence rather than its admissibility.^{Footnote 247}

The Court in Tang did not give effect to the objection to the admissibility of the forensic accountant’s evidence and noted that, in any event, the bulk of the accountant’s evidence related to the tracing of funds and that the few answers that could be considered opinion evidence were not central to the case.

c) R. v. McManus 2017 ONCA 188

In McManus two accused were convicted of drug offences at trial. On appeal, they argued that the trial judge erred in admitting the opinion evidence of a police officer about the meaning of language used in text messages. The officer in question had had prior dealings with one of the accused, believed him to be a drug dealer, and had testified at the accused’s bail hearing that he believed him to be a member of a criminal organization. The officer was also extensively involved in the investigation in that he had participated in both surveillance of the accused and the execution of a search warrant during which he had discovered cocaine and acted as the exhibits officer. It was also significant that the officer had taken it upon himself to prepare the report analyzing the text messages following the conclusion of the preliminary inquiry at which the judge had observed that the Crown’s case was not a strong one.

Writing for the Court, Justice Van Rensburg applied White Burgess and found that there was a “realistic concern” that the officer was unable to comply with the duty of an expert to provide independent, impartial and unbiased evidence. In so finding, Justice Van Rensburg commented that “there is a heightened concern with police expert witnesses to ensure their ability to offer impartial expert evidence”.^{Footnote 248} As the evidence did not meet the fourth Mohan criteria, the evidence should not be admitted. This, combined with two other errors, denied the appellants a fair trial. The appeal was allowed and a new trial was ordered.

d) R. v. Soni 2016 ABCA 773

In Soni, the Alberta Court of Appeal applied White Burgess in the context of a charge of dangerous operation of a motor vehicle causing death. The Crown tendered evidence from an accident reconstructionist - a police officer who had been actively involved in other aspects of the investigation, including interviewing the appellant and a co-accused. In so doing he had made it clear that his investigation to that point suggested that the appellant was guilty, and he told one witness that he thought she was withholding evidence. The defence conceded that the officer could give evidence on collision reconstruction and stated that any concerns went to the weight of the evidence. This concession was made with knowledge that White Burgess was under reserve and was maintained even when the trial judge expressly asked whether there was any opposition to the officer testifying as an expert on the basis that “playing multiple roles perhaps in a police department eliminates your availability as an expert”. The appellant sought to retract that position at the conclusion of the trial. The trial judge agreed with the defence and found that the officer’s evidence lacked the objectivity and impartiality expected of an expert witness. As there was other evidence supportive of his opinion, she was, however, placing diminished weight on it rather than according it no weight at all.

The Alberta Court of Appeal held White Burgess does not “compel a trial judge to perform any independent analysis about the admissibility of expert evidence when the parties concede it is admissible”, and that the appellant ought not be permitted to retract his original position on the admissibility of the expert evidence in this case.^{Footnote 249} It further held that an employment relationship was not a disqualifying factor: there is “no rule that expert witnesses cannot be investigators, and investigators cannot be experts”.^{Footnote 250} Nor, the Court of Appeal held, does “[a]n expert lose objectivity merely because he forms an opinion about the case”.^{Footnote 251} While the expert ought not to have disclosed his preliminary views of the case to the appellant, the interview was conducted seven months after the accident and there was no suggestion that the officer had prematurely jumped to any conclusions or that he had closed his mind to alternative theories as the investigation progressed. Finally, the Court of Appeal held that, if anything, the trial judge overemphasized the perceived problems with the expert’s evidence. In the Court’s view there was nothing on the record before it “to suggest that the expert’s objectivity was so lacking that his evidence should have been ruled completely inadmissible”.^{Footnote 252}

e) R. v. Natsis 2018 ONCA 425^{Footnote 253}

The appellant was convicted of impaired driving causing death and dangerous driving causing death and sentenced to five years imprisonment. She appealed on grounds that included that the police accident reconstruction officer who gave expert evidence at the trial was unable or unwilling to provide fair, objective, and non-partisan evidence. While the trial judge accepted that there was a realistic concern that the officer might be biased, he accepted that the officer at least believed he was acting independently and was not driven by malice. The trial judge limited the officer’s evidence to “analyses and opinions based directly upon his personal observations, calculations and measurements as documented by his field notes and in the photographs” and speed calculations that were largely confirmed by vehicle data recording systems. The trial judge found that, if circumscribed in this manner, the officer was able to give his evidence impartially. The Court of Appeal found no basis to interfere with the trial judge’s ruling. Justice Pardu. writing for the Court, noted that although the trial judge did not have the benefit of the Supreme Court of Canada’s decision in White Burgess, he effectively applied the same test, and considered bias at several stages: at the threshold bias inquiry; the bias inquiry; the Mohan admissibility inquiry; and when considering the weight to be given to the officer’s evidence. Justice Pardu also agreed that the degree of subjectivity associated with an expert’s opinion is a relevant factor in assessing whether conduct suggesting bias leads to the conclusion that the expert will not be able to give evidence independently and impartially. Significantly, in Natsis, there was abundant objective evidence supporting the officer’s conclusions.

Anecdotal Evidence & the Proper Scope of Expert Testimony

f) R. v. Sekhon 2014 SCC 15

The appellant appealed convictions related to the importation and possession of cocaine on the basis that the trial judge improperly relied on evidence from a police expert who went beyond the proper scope of his expertise when he testified that, throughout his career, he had never encountered a courier who did not know what they were carrying. The majority of the British Columbia Court of Appeal disagreed, Justice Newbury dissenting.

At the Supreme Court of Canada, both the majority and the dissent held that the police expert had strayed outside of the area of appropriate expert testimony. The evidence was neither relevant nor necessary, and had significant prejudicial potential. The majority held:

The inherent danger of admitting such evidence is obvious — as Newbury J.A. pointed out:

Anecdotal evidence of this kind is just that - anecdotal. It does not speak to the particular facts before the court, but has the superficial attractiveness of seeming to show that the probabilities are very much in the Crown’s favour, and of coming from the mouth of an “expert”.^{Footnote 254}

The majority stressed the need to be vigilant in ensuring that experts remain within their appropriate areas of expertise, and stated:

Given the concerns about the impact expert evidence can have on a trial - including the possibility that experts may usurp the role of the trier of fact - trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges - including those in judge-alone trials - have an ongoing duty to ensure that the expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert’s testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert’s testimony, the testimony remains within the proper boundaries of expert evidence.^{Footnote 255}

The majority found that the trial judge’s reliance on the evidence was minimal in the context of what was an otherwise overwhelming case and held that, accordingly, no miscarriage of justice had been occasioned by the evidence. The dissent did not agree and would have ordered a new trial.

g) R. v. Dominic 2016 ABCA 114

In Dominic, the Alberta Court of Appeal considered Sekhon, again in the context of expert evidence given by a police officer in relation to drug trafficking. The appellant was arrested with 11 grams of cocaine in individually wrapped packages, and was also in possession of $600 cash, money, cell phones with no information on them, and a rental car. The appellant’s defence was that he was not a dealer but simply a heavy user of cocaine. The police expert was qualified to give expert opinion evidence on a variety of issues related to cocaine use and trafficking, including the practices and habits of cocaine traffickers, but not on the issue of consumption patterns. The police expert testified that cocaine is a “binge drug” where regular users would commonly buy no more than two or three grams at a time, and that the circumstances of the appellant’s cocaine possession was consistent with drug trafficking rather than heavy personal use. The defence challenged the officer’s qualifications on the basis that his experience in relation to regular cocaine users was dated, was based on anecdotal evidence, and was limited to regular rather than heavy users of cocaine.

The Alberta Court of Appeal dismissed the appeal, holding that the expert officer’s experience was lengthy, broad, and intensive and included training courses and extensive experience with 50 drug informers over a 10-year period. The Court distinguished Sekhon, saying that it had not rejected anecdotal evidence per se. It stated that to exclude all anecdotal evidence was:

… tantamount to challenging expertise gained through experience. “Anecdotal evidence” is not a legal concept or a term of art but simply a way to describe second-hand evidence. It does not define, must less preclude, admissibility of that evidence. Being a qualified expert means having “acquired special or peculiar knowledge through study or experience”: Mohan, supra at 25. The mere fact that police experience about drug use is gained through information received from others does not, by itself, diminish the validity of the special knowledge acquired in this manner. The reality is that experience is often based on the accumulated wisdom of what some might describe as anecdotal information learned on the job.^{Footnote 256}

Even handed approach to defence and Crown experts: DNA Evidence

h) R. v. Awer 2017 SCC 2^{Footnote 257}

The accused was convicted of sexual assault. A critical piece of evidence was the presence of the complainant’s DNA on a penile swab taken from the accused. Both the Crown and the defence called experts who gave opinion evidence on what inferences could be drawn on how the complainant’s DNA was transferred to the accused’s penis. The Crown expert testified that wet materials would transfer more DNA than dry ones. Relying on studies and his experience, he opined that contact with a dry substance could not result in the large amount of the complainant’s DNA found on the accused’s penis. The defence expert testified that the mode of DNA transfer could not be conclusively determined and that there was no reliable scientific basis to support the Crown expert’s opinion. The trial judge accepted the evidence of the Crown’s expert and relied on it and other evidence to find that the only reasonable inference to be drawn was that the accused had non-consensual sexual contact with the complainant. An appeal to the Alberta Court of Appeal was dismissed, with dissenting reasons.

The Supreme Court of Canada allowed the appeal and ordered a new trial on the basis that the trial judge had subjected the evidence of the defence expert to a materially higher level of scrutiny than that of the Crown expert. The Court did not decide whether the evidence from the Crown’s expert was admissible or not. Although the defence expert had challenged the evidence of the Crown’s expert as speculative and without scientific foundation, defence counsel at trial had not cross-examined the Crown’s expert on this. Accordingly there was “no way of telling whether it was speculative, scientific, or somewhere in between”. This issue would have to be determined on a voir dire in the event the Crown sought to tender this evidence on a re-trial.

Scope and Necessity of Expert Evidence: Psychiatric Evidence Going to Disposition

i) R. v. Suarez-Noa 2017 ONCA 627

Mr. Suarez-Noa was charged with the second-degree murder of his common law partner. While he admitted to stabbing and killing her, he claimed that he did not have the intent for murder or, alternatively, that he acted under provocation such that he was guilty only of manslaughter. The jury found him not guilty of second-degree murder but guilty of manslaughter. The Crown appealed on the basis that provocation ought not to have been left to the jury and that the trial judge erred in admitting the evidence of a defence psychiatrist.

The Ontario Court of Appeal allowed the second ground of appeal, set aside the acquittal and ordered a re-trial on the charge of second-degree murder. Citing R. v. Robertson [1975] O.J. No. 1658, the Court noted that psychiatric opinion evidence going to an accused’s disposition is admissible only in limited circumstances - where the disposition in question constitutes a characteristic feature of an abnormal group such that the jury can receive appreciable assistance from the expert on a matter outside of the knowledge of lay people. In this case, the psychiatrist’s opinion was not based on any diagnosis of a recognized psychiatric disorder, but “reflected his personal opinion on what may have been in Mr. Suarez-Noa’s mind”.^{Footnote 258} The Court held that the psychiatrist’s opinion went beyond the proper ambit of expert psychiatric opinion of disposition and that it was also unnecessary in that the jury had the same, indeed more, information about Mr. Suarez-Noa’s state of mind and the factors that may have been relevant to his conduct than the expert did.

The Reliability of Expert Evidence: Meaning of Tattoos

j) R. v. Abbey 2017 ONCA 640^{Footnote 259}

This case is a “sequel” to R. v. Abbey 2009 ONCA 624, which was discussed in the 2011 Report. In its 2009 decision, the Ontario Court of Appeal ordered a retrial following an acquittal on the basis that the trial judge had erred in excluding an expert’s opinion on the meaning of a teardrop tattoo engraved on the accused’s face within months of the murder. The Crown tendered the expert evidence on the retrial and Abbey was convicted. He appealed his conviction, relying on fresh evidence which called into question the credibility and reliability of the statistical evidence and studies on which the expert purported to base his opinion. The Court of Appeal found that the fresh evidence showed the expert evidence on the meaning of a teardrop tattoo was too unreliable and that had the trial judge been aware of the fresh evidence, he would not have admitted it. The Court found that the evidence had played a prominent role in the Crown’s case. The fresh evidence was admitted and a new trial was ordered.

Admissibility of Drug Recognition Examiner: Knowledge of Underlying Science

k) R. v. Bingley 2017 SCC 12

In Bingley, the Supreme Court of Canada considered the qualifications of a certified drug recognition examiner (DRE). Mr. Bingley was observed driving erratically, pulling into a parking lot and striking a car. He exhibited symptoms of impairment but passed a roadside screening device for alcohol. He failed a field sobriety test and was taken to the police station where a drug recognition evaluation was conducted by a DRE. The evidence of the DRE was admitted at his first trial without the necessity of a voir dire, but he was acquitted. The Crown successfully appealed. At his second trial, the trial judge held that s. 254(3.1) of the Criminal Code did not allow for the automatic admissibility of the DRE’s evidence and that the evidence was not admissible under common law principles because the DRE expert was not trained in the science underlying the drug recognition procedure. The Court of Appeal held that s. 254(3.1) implicitly allows the automatic admissibility of this kind of evidence.

The majority of the Supreme Court of Canada held that while s. 254(3.1) gives the police “the investigative tools” to investigate such crimes, it does not dictate that the evidence is automatically admissible - the common law rules apply. In this case, the question was whether the DRE expert had special expertise to meet the fourth Mohan factor. The Court stated that this factor requires only that the witness have expertise outside the experience and knowledge of the trier of fact. Certified DRE’s are specially trained in how to administer and interpret the 12-step drug recognition evaluation and, as such, possess knowledge outside of the experience of the trier of fact and that knowledge of the science underlying the evaluation is not a precondition to the admissibility of a DRE’s opinion. Expert witnesses are not barred from assisting the court with their special knowledge simply because they are not trained in the underlying science of the field. Such knowledge is required only where the science is novel. The scope of a DRE’s expertise is in the application of the prescribed 12-step evaluation, not its scientific foundation.^{Footnote 260}

In respect of the underlying reliability of the 12-step evaluation, the majority held that by establishing a uniform evaluative framework Parliament had established that the 12-step evaluation is sufficiently reliable for the purposes of determining impairment. No further evaluation of the reliability of the steps mandated by the Regulations was required and any challenge to the underlying effectiveness of the evaluation would require a challenge to the legislative framework itself.^{Footnote 261}

Judicial Notice of Forensic Literature - Fingerprint Analysis

l) R. v. Bornyk, 2015 BCCA 28

The accused was charged with breaking and entering. The Crown relied primarily on the evidence of a police officer qualified to give expert evidence on the identification and comparison of fingerprints. The trial judge reserved his decision following the conclusion of the evidence. Before rendering a decision, the judge sent counsel four articles critical of fingerprint identification evidence. In acquitting the accused, the judge referred to these articles and found areas of concern with the expert’s evidence on matters that were not put to the expert witness and which appeared to have been derived from the articles located by the judge.

The British Columbia Court of Appeal ordered a new trial. It held that a judge may only rely on evidence presented at trial, except where judicial notice may properly be taken. Articles commenting on forensic science are not matters of which the judge could take judicial notice. The trial judge stepped beyond his proper neutral role and compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research he assumed the multi-faceted role of “advocate, witness and judge”. The trial judge also erred by conducting his own analysis of the fingerprints, absent the assistance of the expert witness. The very point of having an expert witness in a technical area is that the specialized field requires elucidation in order for the court to form a correct judgment.^{Footnote 262}

As a postscript to this case, the accused was again convicted following a re-trial (see R. v. Bornyk [2015] B.C.J. No 94). Significantly, however, the trial judge presiding over the retrial heard the evidence of two police identification experts, as well as two other experts on the integrity of fingerprint identification evidence more generally.

Fresh Hair Analysis Evidence Admitted at Supreme Court of Canada

m) R. v. Hay 2013 SCC 61^{Footnote 263}

Hay and a co-accused were found guilty of first degree murder in the shooting of two men. The Crown’s case against Hay included hair clippings found in the garbage of the bathroom nearest his bedroom and hair clippings in an electric razor found in his nightstand. Hay had very short hair when he was arrested and the Crown’s theory was that he had shaved his head after the shootings in order to disguise his involvement. This evidence was also said to explain why an eyewitness described the second shooter as having longer and different hair than Hay’s, and why another witness was unable to identify him from an arrest photo.

Hay’s appeal to the Court of Appeal for Ontario was dismissed. While his application for leave to appeal to the Supreme Court of Canada was pending, Hay filed a motion to compel the Crown to release hair clipping evidence for forensic testing to determine from what part of the body the clippings came. The Court allowed the motion and Hay ultimately sought to tender the results of that testing as fresh evidence on the appeal.

The fresh evidence from two defence experts was that the hair clippings were predominantly facial as opposed to head or trunk hair. On the basis of a paper review, the Crown’s experts concluded that there was no evidence to support the proposition that the hair clippings represented a head shave. Given the Crown’s reliance on the hair clippings at trial the fresh evidence could reasonably have affected the result. The motion to adduce fresh evidence was granted and a new trial was ordered. The Crown subsequently withdrew the charge, stating “it is no longer in the public interest to continue with the prosecution of Mr. Hay.”

VII. Other Developments Related to Forensic Sciences & Evidence in Canada

a) Centre for Forensic Science and Medicine (CFSM) at the University of Toronto, Forensic Science in Canada: A Report of Multidisciplinary Discussion

Forensic science in Canada is at a critical juncture. Both public and judicial confidence in our practices have been eroded by several high profile inquiries into the damage wrought by faulty forensic evidence. We have learned that reliable forensic science is a cornerstone of any effective justice system. However, in the past few years there have been considerable improvements, much to the benefit of the public. In this report, forensic experts from across Canada describe the current state-of-the-art in forensic science and make recommendation to improve services. The unanimous conclusion is that the forensic sciences must grow and develop in Canada to enhance public health, public safety, and justice. Continuous and sustainable improvement in all the disciplines of forensic sciences will require the coordinated efforts of academic institutions, government, stakeholders in the justice sector, and forensic scientists.^{Footnote 264}

CFSM, Forensic Science in Canada: A Report of Multidisciplinary Discussion, 2013

In 2013, the Centre for Forensic Science and Medicine (CFSM) at the University of Toronto published Forensic Science in Canada: A Report of Multidisciplinary Discussion (the CFSM Report).^{Footnote 265} The CFSM Report was the product of discussions held at the CFSM on the state of forensic sciences in May 2012. These discussions were held in direct response to well-known public inquiries and cases, including cases of wrongful convictions, in which forensic science played a key role. They were also responsive to publications of the National Academy of Sciences (NAS) in the United States, and in particular its 2009 publication Strengthening Forensic Science in the United States: A Path Forward, which “painted a bleak picture of the state of forensic sciences in the United States and cast doubt on the reliability of evidence coming from experts working in long-established forensic sciences”.^{Footnote 266} Fundamental to the discussions was the recognition of the paradigm shift to an evidence-based form of forensic scientific inquiry, and the need to bridge the gap between expectations and deliverables in expert opinion evidence in the forensic sciences.^{Footnote 267}

The CFSM Report surveyed the state of nine key disciplines within forensic sciences: pathology; anthropology; odontology; nursing; entomology; physical evidence; toxicology; biology; and psychiatry. It looked at a variety of aspects within each discipline, including the history or development of the discipline, the provision of services (including legal/legislative frameworks, facilities, and the existence of professional standards); education (including qualifications/certification and continuing education); research; and the existence and role of professional bodies and organizations. It did not advocate for specific systemic reforms as the NAS report did, nor did it make recommendations on how principle stakeholders and clients of forensic sciences should make use of the report. Rather, it identified themes, conclusions and made general recommendations designed to assist the academic and public sectors in defining and funding strategic priorities to strengthen forensic science in Canada. Its aim was to engage stakeholders and act as a catalyst for further activities and the development of a national strategic plan for forensic science in Canada.

The CFSM Report drew six general conclusions, paraphrased as follows:

1. That forensic science wants for lack of a national granting agency. Because forensic science generates novel questions and issues distinct from mainstream scientific problems, it does not fit well into the mandate of existing funding agencies.
2. There is no culture of research in Canada’s forensic science community, possibly due to workload and lack of funding. The lack of research culture directly and negatively impacts on our capacity to train forensic scientists and practitioners.
3. The low number and geographically scattered nature of Canada’s population makes it difficult to create a critical mass of scientists and practitioners in any one place, and creates a dissonance between the academic and forensic science communities.
4. Forensic science has suffered from the patchwork of provincial and federal agencies, responsibility and paymasters, which impede the development of unified strategies.
5. There is a lack of coordination of training and recruitment amongst universities, institutions and agencies. There is no agreement on the content and standards of training for most disciplines on a national level, with a few exceptions such as forensic pathology and forensic psychiatry.
6. Credentialing of forensic scientists is absent in some disciplines, fragmentary in others, not universally accepted as necessary or desirable by some, and not lawfully mandated for most.^{Footnote 268}

The CFSM Report’s recommendations focused on four main areas: research; education and training; best practices; and administration and regulation.

Research: The CFSM Report made a variety of recommendations to foster a research culture in Canada, including a recommendation that research granting agencies and universities recognize and fund research and programs in the forensic sciences. It also recommended the development of a statistical, probabilistic approach to problems in forensic science, the use of objective and evidence based methodologies, and the encouragement of research addressing cultural dimensions of the practice of forensic science.^{Footnote 269}

Education & Training: It recommended multidisciplinary cross-training between scientists, police, lawyers and judges, and specifically recommended continuing education in key forensic sciences for judges. It recommended that scientists receive training on best practices in report writing and giving expert witness testimony, the development of internet-based training modules for forensic-identification officers and scientists, and increased graduate and postgraduate degrees and training programs in key forensic disciplines.^{Footnote 270}

Best Practices: It recommended the development and circulation of standards and best practices, including international standards where appropriate, and the development of and participation in professional certification programs. It emphasized the need for all practitioners to “embrace professionalism and adopt strong codes of ethical practice” and to adopt a “culture of scientific neutrality … irrespective of their paymaster.” It also recommended a systemic response to error: “We note with regret that, at present, the public inquiry is the primary mechanism for remediation after a miscarriage of justice occurs, if the error is detected at all.”^{Footnote 271}

Administration and Regulation: It recommended the development of workload standards, MOUs between fee-for-service forensic scientists and service end-users, and funding models that emphasize full-time personnel over fee-for-service providers, especially in the areas of forensic nursing and pathology. It also recommended the development of peer review and other quality management systems, and that the “policies and procedures of medicolegal death investigation systems should be brought into alignment with current thinking on the best practices in forensic pathology”.^{Footnote 272}

The CFSM Report was a critical step by members of key forensic disciplines in Canada to engage in self-examination on a national scale and to identify areas for and barriers to improvement. At the same time, it acknowledged the limitations of what it could do. As stated in the concluding remarks to the report:

The science that serves as the underpinning of so many court cases in Canada requires scrutiny. The volunteerism, good intentions, and ad hoc organizational efforts of Canada’s forensic scientists are no substitute for a thoughtfully designed system of service delivery. Other jurisdictions, including the United States, have begun the process of critically evaluating these systems, and Canada cannot afford to lag behind her peers in this respect.^{Footnote 273}

Regrettably, to date, the CFSM Report has not received the attention it deserves, and Canada still lacks a national strategy or multidisciplinary forum in which to continue to address issues related to forensic sciences. As the late Mr. Justice Marc Rosenberg stated in his Forward to the CFSM Report:

As the Driskell, Morin and Goudge inquiries show, we ignore the state of forensic sciences at our peril.^{Footnote 274}

b) DNA: Probabilistic Genotyping

A recent change in forensic DNA analysis involves the use of probabilistic genotyping. Probabilistic genotyping involves the use of computers to aid scientists with the interpretation of forensic DNA profiles. The underlying technology remains unchanged: where sufficient DNA is gleaned from a crime scene or a person, selected regions of DNA known as short tandem repeats (STR’s) are amplified using polymerase chain reaction (PCR) and a profile is derived from the results. The change is in how these results are interpreted. Formerly, the results were interpreted solely by qualified experts through the application of empirical guidelines and professional judgment. Now, an expert’s interpretation is aided by both the same empirical guidelines as well as computer algorithms based on biological modelling, statistical theory, and probability distributions. This new method has produced impressive increases in a forensic laboratory’s ability to interpret forensic DNA profiles, particularly those involving complex mixtures.^{Footnote 275}

The shift to probabilistic genotyping requires a change in how forensic DNA results are reported. An exclusion remains an exclusion and will be reported as such. In a case of non-exclusion, random match probability statistics will no longer be used as they are incompatible with probabilistic genotyping. Instead, a likelihood ratio will be reported such as the “evidence is 1 million times more likely if the DNA profile originates from Jane Doe than if it originates from an unknown, unrelated individual.” Essentially, a likelihood ratio provides a mathematical estimate of how well one particular hypothesis or proposition explains the DNA results relative to another.^{Footnote 276} This form of expression seems awkward at first but makes sense upon reflection. A likelihood ratio, in the example above, is the probability of the evidence under the proposition that it originates from Jane Doe divided by the probability of the evidence under the competing proposition, i.e. that it originates from an unknown, unrelated individual. A result in favour of the Jane Doe proposition will be a number greater than one, potentially a very large number. A result in favour of an unknown, unrelated individual will be a number smaller than one. The statistic, then, focuses on the probabilities of DNA results under given propositions (which are the proper province of the expert) as opposed to the more global question of the probabilities of the propositions themselves (which is the province of the trier-of-fact). The statistic focuses on the DNA results. It does not define the probability of guilt.

The particular form of probabilistic genotyping software chosen by public Canadian forensic laboratories to date, STRmix^TM, has received a high level of acceptance in courts in the United States, the United Kingdom, Australia, and New Zealand. The Centre of Forensic Sciences in Ontario began employing STRmixTM in selected cases in August 2016. It is now available in most cases submitted for DNA analysis, other than those submitted through the Centre’s High Volume Service. Québec’s forensic laboratory, le Laboratoire de sciences judiciaires et de médecine légale du Québec, is currently validating STRmix.^TM

c) Legislative Developments

Ontario: Forensic Laboratories Act

As a practical matter, most large forensic laboratories are already accredited on a voluntary basis. However, some laboratories engage in forensic testing without accreditation or, as was the case with the Motherisk Drug Testing Laboratory, without even an appreciation that they are operating as a forensic laboratory. As Motherisk illustrated, the risk inherent in the operation of an unaccredited forensic lab can be extremely high.

On March 8, 2018 Ontario passed the Forensic Laboratories Act. The Act seeks to ensure that forensic laboratories in Ontario have common operational standards. Accreditation is to be done by accreditation bodies using the International Organization for Standardization (ISO) 17025 standard. The accreditation process includes proficiency testing, annual audits, performance reports, surveillance visits, management reviews and a code of conduct. It also requires that reports on testing conducted in the laboratory provide specific information on a form to be prescribed by the Regulations. The Act provides for regular inspections and enforcement mechanisms. In cases of non-compliance it contemplates warnings, suspensions, revocations and fines of up to $30,000 for a first offence and $50,000 for second and subsequent offences. The Act also provides for an advisory committee to advise the Minister.

VIII. Updated Recommendations

The recommendations of the 2005 and 2011 Reports continue to be relevant and are endorsed by the Subcommittee. Education, in particular, is a continuing and continual priority. In addition, the following additional recommendations are made.

1. The federal, provincial and territorial governments should support the creation of a permanent national multidisciplinary group to study and make recommendations concerning aspects of forensic sciences in Canada.
2. The federal, provincial and territorial governments should consider amendments to the Criminal Code and other provincial legislation, including rules of criminal procedure, to codify, clarify and enhance the common law rules concerning the admissibility of expert opinion evidence.
3. All levels of court should consider amendments to Practice Directions concerning the requirements for the admissibility of expert opinion evidence.