Law Times

www.lawtimesnews.com Page 10 January 28, 2008 / Law Times Probe into pediatric forensic pathology wraps in April criminal lawyers hope inquiry brings change M embers of the prov- ince's criminal bar are hoping Ontario's Inquiry into Pediatric Forensic Pathology will strengthen the system to help prevent future miscarriages of justice, they tell Law Times. Now into its third month of witness testimony, the inquiry, led by Justice Stephen Goudge, is expected to wrap up in a few months. While a few changes have been made to the system since the Ontario chief coroner's office released the results of its review into a number of cases in 2005, criminal lawyers say they'd like to see the inquiry re- sult in important alterations — including a restoration of faith in forensic pathology evidence before the courts. Since the inquiry's first wit- ness took the stand in mid- November, the panel has heard testimony relating to missing evidence found after a search of the office belonging to former Ontario forensic pathologist Dr. Charles Smith. It has also heard concerns about the quality of fo- rensic pathology at the Ottawa unit, as well as about staff short- ages in the forensic pathology unit in the late 1990s, acccord- ing to reports. The inquiry was launched last April, following the release of the results of a coroner's of- fice review of 45 criminally suspicious and homicide cases, dating from 1991 to 2002, in which Smith had performed an autopsy or provided an opinion in consultation. According to the report, reviewers for the office of the chief coroner had concerns in 20 of the 45 cases reviewed. Among the 20, there were 12 convictions and one finding of not criminally responsible. By the end of April, Goud- ge is slated to deliver his rec- ommendations "to restore and enhance public confidence in pediatric forensic pathology in Ontario and its future use in investigations and criminal proceedings." Among the changes made through previous cases, and as a result of the coroner's review, is the development of a two- day course for pathologists who provide expert evidence in court. The course includes mock examination and cross- examination and it empha- sizes the importance of giving balanced and fair testimony. It's run with the assistance of Crown and defence counsel and pathology experts. Early-case conferences are also now held following all ho- micides and criminally suspi- cious cases, or whenever there are outstanding issues or significant unanswered questions follow- ing the autopsy. Required to be present at these conferences are a senior coroner, the pathologist who conducted the examina- tion, scientists from the Centre of Forensic Sciences, police, and any other experts. "These case conferences are held, in part, to ensure that all members of the death investiga- tion know what has been found at the time of the autopsy and what outstanding examinations or test results are necessary be- fore appropriate conclusions can be reached by the pathologist," says the coroner's office review document. Without commenting specif- ically, as this issue will be before the inquiry, Joseph Di Luca, a Toronto criminal lawyer and vice president of the Criminal Lawyers' Association, says that without pinpointing a time, he thinks there's been an improve- ment in the quality and calibre of forensic evidence. "But we're only now starting to learn of the limitations of that evidence — and the potential fallibility of that evidence — and we're also seeing some pretty clear examples of how dangerous it is to cloak opinion evidence under the fancy title of foren- sic expert evidence," he says. "Through the inquiry, we also have a very clear demon- stration — a very clear pub- lic demonstration — of the linkage between substandard forensic medical evidence and wrongful conviction," he adds. Louis Sokolov is counsel for the Association in Defence of the Wrongly Convicted (AIDWYC), the organization that represented William Mul- lins-Johnson, who was acquit- ted more than 13 years after he was wrongfully convicted of the first-degree murder of his four-year-old niece, based partly on the evidence given at trial by Smith. Sokolov says that what they are hop- ing comes out of the inquiry is that miscarriages of justice that have been identified will be corrected. They are also looking for recommendations for further examination of other cases that may have led to miscarriages of justice. "What we have heard at the inquiry is significant evidence that the problems with forensic pathology weren't solely related to Dr. Smith; there were prob- lems with other pathologists and there were larger structural problems as a whole," he says. Sokolov's organization is in- sistent that the process not stop here, that it carry on and other problematic cases be identified. "We're not at all sure that there are not other people who we are not aware of yet sitting in prison for crimes that they did not do, as a result of flawed pathology," says Sokolov. Di Luca, who is representing the CLA at the inquiry, says that the association has three hopes for the inquiry. It appears, he says, that all three are going to be addressed. The first is that the inquiry serves to restore faith in foren- sic pathology evidence tendered before the courts. "Not only has evidence from Dr. Smith been called into question, [but] I think we're learning through the inquiry that there are broader systemic issues with forensic pa- thology evidence that need to be addressed," he says. The association is also hop- ing that the inquiry will im- prove fair access to forensic pa- thology evidence and promote a system that permits and perhaps funds defence access to the tools needed to "appropriately and fairly meet forensic evidence that's proffered on behalf of the Crown," he says. Lastly, the CLA is hoping that the inquiry will provide a road map for how to improve the quality and calibre of foren- sic pathology evidence — and to better understand its limitations "I think there's room to im- prove the evidence, but also rec- ognize its limitations, and that'll be one of the lasting lessons from the inquiry," he says. Another goal, shared by oth- ers taking part in the inquiry, says Sokolov, is to strengthen the system to prevent miscarriages of justice in the future. "That will come by produc- ing scientific evidence of greater quality; that will come through better training for forensic pa- thologists, through accredita- tion, through . . . meaningful peer-review of the work that forensic pathologists do, and through better education of members of the legal profession — both Crown and defence — as well as a higher level of scru- tiny on the part of lawyers and indeed on the part of members of the public — scrutiny of ex- pert evidence in general and forensic pathologic evidence in particular," he says. One of the inquiry's goals is to restore public confidence in the pediatric forensic pathology system, and, while AIDWYC is not opposed to that, Sokolov says it hopes that "a much more critical and carefully scrutinized level of confidence" be estab- lished by the process. 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