ARCTIC OBITER

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16 | <strong>ARCTIC</strong> <strong>OBITER</strong> Such an expert can do much damage without effective oversight by those who must provide it and constant vigilance on the part of the participants in the criminal justice system who can protect the system against flawed expert evidence. None of that happened here. The challenge is to ensure that this history does not repeat itself. From the perspective of fairness and ethics, Crown counsel can no more ignore an expert’s transgressions on the witness stand than she can a trial judge’s errors in a jury charge. If defence counsel does not object, Crown counsel has a responsibility to bring the problem to the court’s attention, even if it makes a conviction less likely. Also, forensic evidence is often more equivocal than it seems. Comparisons between one sample and another often produce only the weak conclusion that the two samples ‚could have‛ come from the same person. The danger is that juries will use this as evidence that the two samples ‚did‛ come from the same person. This is what happened in Guy Paul Morin’s first murder trial. Hair comparison evidence provided a very weak inference but was probably used by the jury [or relied upon by the Crown] to refute Mr. Morin’s alibi. This case illustrates how important it is for the Crown prosecutor to satisfy herself about the strength of forensic evidence before the trial, possibly in the form of a searching cross-examination of the analyst. The Kaufman report on the Morin wrongful conviction concluded: ‚Had the limitations on [the hair evidence] been adequately communicated..., Mr. Morin may not have been arrested when he was - if, indeed, ever.‛ The report also concluded that Crown counsel had overstated the strength of the fibre evidence in the closing address. ‚[T]he Crown’s closing address, in some respects, took the study farther than anything that the scientists had said about it‛. Novel fields of forensic science are most likely to cause problems. The adversarial trial has difficulty assessing the trustworthiness of such evidence. It is very important that Crown counsel do not take an overly credulous view of such evidence, or blind themselves to its shortcomings. The trial process is vulnerable to self-appointed experts who peddle their revolutionary ‚profiling‛ techniques from one court to the next. For example, take the murder trial of Dimitre Dimitrov. Police investigating the scene had found abandoned boots covered in blood. At trial, the Crown called a Sgt. Robert Kennedy of the RCMP, who had become an expert in ‚barefoot morphology‛ and developed a technique of footprint identification. At Dimitrov’s trial, Sgt. Kennedy claimed that he could go further and identify the wearer of a shoe by the unique pressure imprint made on the inside of the sole. The Court of Appeal overturned Dimitrov’s conviction, distinguishing between the footprints in mud, blood, or another substance, and footprints on the inside of shoes. The latter was ‚novel‛. That warranted a higher level of scrutiny of the technique’s reliability. Indeed, in his own testimony, Sgt. Kennedy admitted that the science was at too early a
NOVEMBER 2009 | 17 stage to enable positive identifications. Finally, the Court concluded that the risk that the jury would be overawed by the technical language and other scientific trimmings outweighed any probative value the evidence might have. The Crown Policy Manual in Ontario now provides that: The ultimate objective of the Crown in putting forward scientific evidence is to ensure that such evidence is presented to the court with no more and no less than its legitimate force and effect. The scientist should inform Crown counsel of any limitations on the inferences that can be reliably drawn from such evidence and Crown counsel must make every effort to ensure that those limitations are fully impressed upon the trier of fact. As in all matters, Crown counsel should be guided by the general duty to see that justice is done in the circumstances of the particular case. THE UNREPRESENTED ACCUSED The growing number of unrepresented accused presents an acute problem for trial fairness. To represent oneself is a constitutional right (Swain) but many accused are unwillingly enjoying that right because all but the very poor are too rich for Legal Aid assistance and Legal Aid is less and less willing to provide funding in less serious cases. Cases have recognized a power to appoint amicus curiae at the trial of an unrepresented accused. This power is an aspect of the court’s inherent jurisdiction. In exceptional cases, the court may appoint state-funded counsel. Both powers are to be exercised to ensure the fundamental fairness of the trial and the proper administration of justice. They are exercised sparingly. In a case where an accused is unrepresented, the trial judge has a special responsibility to make sure the accused can navigate the process and defend himself adequately. Sometimes trial judges can go too far, and, in seeking to ensure the trial remains fair, may compromise another aspect of trial fairness, perhaps by cross-examining prosecution witnesses in an inappropriate manner. (McGibbon) Sometimes unrepresented accused will conduct their defence in such a disruptive and unprofessional manner that they will have to be removed from the courtroom. This may be the only way to allow the trial to continue but it comes at a very high cost to fairness, since the accused can no longer witness the proceedings in person or directly participate. The rules governing fair trials that I have been talking about may prove to be entirely ineffective unless some way is found to address the problems posed by the unrepresented litigant. Justice Ian Binnie was appointed Queen’s Counsel (Ontario) in 1979. He was appointed to the Supreme Court of Canada on January 8, 1998.
Page 1 and 2: ARCTIC OBITER NOVEMBER 2009 V OLUME
Page 3 and 4: NOVEMBER 2009 | 3 PRESIDENT’S MES
Page 5 and 6: NOVEMBER 2009 | 5 not, we find that
Page 7 and 8: NOVEMBER 2009 | 7 earning a degree
Page 9 and 10: NOVEMBER 2009 | 9 event, held at th
Page 11 and 12: NOVEMBER 2009 | 11 ROBED AND READY
Page 13 and 14: NOVEMBER 2009 | 13 the 6 hour perio
Page 15: NOVEMBER 2009 | 15 wake of the Mori
Page 19 and 20: NOVEMBER 2009 | 19 — ‚We are so
Page 21 and 22: NOVEMBER 2009 | 21 to one another.
Page 23 and 24: NOVEMBER 2009 | 23 Kraft Dinner: It
Page 25 and 26: NOVEMBER 2009 | 25 probable cause m
Page 27: NOVEMBER 2009 | 27 NOTICES NOTICE O

ARCTIC OBITER

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