Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor .................. Glenn Kauth Associate Editor ......... Robert Todd Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator .. Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter Gay rights issues still simmer — even here L ast week wasn't a good one for gay-rights advocates. In Maine, voters narrowly rejected their state's same-sex marriage law by 53 per cent to 47 per cent. The result overturns legislation signed by Gov. John Baldacci last spring. A vote for the law would have repre- sented the first U.S. victory for same- sex marriage rights through a referen- dum rather than through the courts or legislatures. But it's worth pointing out that even here in Canada, while the debate on the issue has largely gone dormant, it was judges, and later politicians, who changed the laws. We never had a referendum here, so it's hard to say if our legislation would have met the same result. Indeed, at a time when Uganda considers a law that would impose the death penalty for what's called ag- gravated homosexuality, it's clear that gay-rights issues continue to simmer. Even here in Ontario, we haven't set- tled everything. As an article on page 13 of this week's Law Times points out, the rights of gays and lesbians to divorce remain an issue. That's because gay couples from else- where who get married here often find themselves in legal limbo when they want to break up. In the United States, for example, jurisdictions that don't rec- ognize same-sex rights also won't allow them to divorce. But at the same time, if they want to come back to Ontario to end their marriage, the province re- quires at least one of them to have one year of residency here. As a result, many U.S. couples find themselves unwill- ingly joined together. The issue may appear somewhat moot since their home state doesn't ac- cept their marriage anyway, but as Dal- las attorney Peter Schulte points out, the inability to divorce nevertheless leaves them facing legal risks. For example, if they choose to wed someone else, authorities could charge them with bigamy. As well, Ontario rules requir- ing one year of residency for a divorce seem odd given that the province doesn't have a similar restriction on getting married here in the first place. Kelly Jordan, a Toronto family law- yer, has thought about the possibility of a constitutional challenge of the provi- sions but says such a move is unlikely because she doesn't believe the issue is a priority for the general public. At the very least, then, the quan- dary shows that even here, legal rights for gays and lesbians remain a con- cern. The Maine vote, meanwhile, is also a good reminder of the wisdom of our own politicians' decision not to put divisive rights issues such as same- sex marriage to a referendum. Opponents will certainly say that's undemocratic, but there is a quick an- swer to that charge: Canadians have the ability to turf politicians who vot- ed for same-sex marriage in an elec- tion. But for the moment, with the Conservatives holding a minority in Parliament and having taken a pass on overturning the 2005 law, voters have so far declined to do so. — Glenn Kauth chondrial DNA is a relatively new phenomenon in Canadian courts. Known as mtDNA, it's the N genetic material found in the mitochondria of cells rather than the nucleus. MtDNA has been used in anthropological and genealogical studies as well as after 9-11 and to examine the remains of Czar Nicholas II. Still, its use in Ameri- can courts is controversial. You inherit mtDNA mater- nally. Absent genetic mutations, a mother's mtDNA passes on to her children. As a result, they have the same mtDNA as their maternal relatives. A rootless hair may have de- graded DNA that cannot yield a nuclear DNA profile. But mtDNA is available in great numbers in the cell, meaning the profile of the evidentiary sample may be available. The mtDNA test result re- veals markers or nucleotides uclear DNA can pro- vide a veritable match to a suspect, but mito- MtDNA: Beware bad use of good science A Criminal and ultimately a profile or what's called a haplotype. This profile is compared with those in a databank created by the FBI in the United States. The Scientific Working Group on DNA Analysis Methods da- tabase contains 4,839 conve- nience samples collected in a non-random manner from FBI agents, paternity suit samples, and other sources. The FBI database contains 1,655 Caucasians, 1,148 African- Americans, and 686 people of Hispanic descent. About half the haplotypes appear only once, but that still makes it difficult to tell if they are rare because the data- bank is so small. While the profiles are public- ly available, authorities restrict access to them. In fact, mistakes have occurred because informa- tion was manually inputted. As a result, only the FBI can cor- rect these errors. MtDNA mutates more read- ily than nuclear DNA. A hair from one area of your head, for example, may not have exactly the evidence. Mind By Rosalind Conway the same profile as a hair from another area. This is called het- eroplasmy. If hair turns up at a crime scene and it differs by one mark- er from a known sample, the re- sult is inconclusive. Authorities can neither include nor exclude the suspect. The prosecution may put mtDNA forward as evidence to identify the accused, but the crux of the matter is that it can- not prove identity. It can only in- clude, exclude or be inconclusive. A powerful tool for exonera- tion and exclusion, mtDNA is potentially unsafe science when authorities attempt to use it to identify a suspect. Because jury members may confuse it with nuclear DNA, they require a special caution before tendering www.lawtimesnews.com The American database has significant limitations. For example, French-Canadians, Inuit, and Mohawk are not in it, but the Apache and Na- vajo are. A defence challenge to mtDNA evidence should include an attack on the da- tabank itself. There are only two reported cases in which courts in Canada admitted mtDNA into evidence: R. v. Woodcock and R. v. Murrin. In the mtDNA context, if a Caucasian haplotype has never before shown up in the FBI da- tabase (which occurs about half of the time), the probability of an unrelated individual sharing the same mtDNA profile is ex- pressed as one in 556. This is ex- pressed by means of a confidence interval of 95 per cent. Recently, in an unreported decision in Newfoundland in R. v. Turner, four apparently un- related people in a small com- munity had the same or similar mtDNA profiles. In maritime, French-Canadian, and native November 9, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. communities, certain profiles may be quite common but they may not be in the database or may appear to be uncommon. American courts have be- come comfortable with this evidence, but not all American lawyers have. For more details, see the article "Database Limi- tations on the Evidentiary Val- ue of Forensic Mitochondrial DNA Evidence" by Frederika Kaestle, Rick Kittles, Andrea Roth, and Edward Ungvar- sky in the American Criminal Law Review. There is real debate about mtDNA science and its limits. As a result, it's crucial not to ally ourselves too closely with the United States and its database. If this science is to have relevance in Canada, we need to develop our own random databases. What we don't want is bad use of good science. LT Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind. conway@magma.ca.

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• Mandatory Education
• Good Science?
• Focus On Family Law