Law Times

Page 6 November 10, 2014 • Law Times www.lawtimesnews.com COMMENT More doubts about evidence, experts ix years after former Ontario Court of Appeal justice Stephen Goudge found serious problems with the province's pediat- ric forensic pathology system, it's disheartening to see doubts emerge about the quality of certain evidence used routinely in certain child-protection cases. In Goudge's case, he was looking into the actions of former doctor Charles Smith, the pathologist found to have made questionable con- clusions in 20 of 45 child-death cases reviewed by the Ontario coroner. In 13 of those cases, the courts convicted the accused, many of them family members of the deceased. In 2008, he made 169 recommenda- tions aimed at preventing miscarriages of justice in child-death cases. The latest concern centres on hair-strand analysis performed by the Motherisk program at the Hospital for Sick Children. It follows an Oct. 21 Court of Appeal ruling that admitted fresh evidence and quashed the conviction of Tamara Broomfield on two cocaine-related charges. The victim was her two-year-old son, whom an expert from the Motherisk program concluded must have ingested substantial amounts of cocaine over a 14-month period. The trial judge found Broomfield had given him cocaine during that period, including on July 31, 2005, when he collapsed with seizure-like symptoms. In her appeal, Broomfield sought to admit fresh evidence chal- lenging the expert's findings based on hair analysis that revealed high concentrations of cocaine. After noting there was no evidence presented at trial to challenge the method used by the Crown's ex- pert, the appeal court quashed the conviction on the two counts. SCC ruling, Ottawa attacks show cracks in bilingual services f you want people's attention, tell them something they can relate to. Better still, make it a horror story. Official languages commissioner Graham Fraser took that approach when he spoke to members of the House of Commons' official languages commit- tee recently. He told them a story about something that could have gone horribly wrong that they could easily relate to. On Oct. 22, shooter Michael Zehaf- Bibeau died outside the door of the same meeting room where committee mem- bers were listening to Fraser. Fraser blasted the federal government operations centre for what he called "a glaring failure" when at the start of the attack on Parliament, it sent out an emergency warning in English only. It warned that an armed killer was on the loose with a loaded gun inside the cen- tre block of the Parliament buildings. It was easy to tell from Fraser's face that he was still upset more than two weeks later. "I was extremely disappointed, to see that the alert from the government op- erations centre was entirely in English," said Fraser. Fraser said he had been in New Brunswick at the time consulting with Katherine d'Entremont, his provincial colleague. The warning in English from the government op- erations centre was plain enough. It said parliamentar- ians and federal government employees should "stay away from the windows and stay in their offices until they heard otherwise," said Fraser. Fraser wanted the commit- tee members to be sure of the extent of the mistake by the operations centre. "This was later on followed by mes- sages from the Treasury Board Secretariat that were in both languages, but it was the initial emergency announcement that was in English only," said Fraser. "I didn't quite believe it," said Fraser. "I e-mailed my colleagues asking: 'Is this really true? Did they really put out the message in English only?' It was con- firmed to me that this was the case." He continued: "It particularly struck me because a few months ago, we had received an announcement from the government operations centre that henceforth, because of a reduction in their resources, they were not going to be able to put out announce- ments in both languages," said Fraser. MPs of all political stripes in Ottawa are well aware of the spending cuts imposed by the Conservative govern- ment in advance of the next election. Would those cuts at the government operations centre have been so severe as to force it to start sending out the most frightening of emergency alerts in only one language or was it merely using the Conservative gov- ernment cutbacks as an excuse to avoid having to operate in both English and French? Fraser explained to the commit- tee that when he had learned about the changeover to English-only messages, "we immediately got in touch with them and said to them, 'Excuse me, but what if there is a violent incident and you need to warn people? Are you suggesting that it is only anglophones that are going to be threatened by somebody?'" As a result of this initial discussion with the government operations centre, Fraser said, "they reconsidered and changed their position." Then he added: "But clearly, they did not take the measures necessary to change their capacity to be able to respond in an emergency situation." Fraser's comments follow a recent Supreme Court decision dealing with Air Canada's bilingual service obliga- tions. New Brunswick NDP MP Yvon Godin tried to lure Fraser into a public comment on the case, but he wouldn't fall into the trap. As official languages commissioner his job is to criticize the federal government and its agencies, not the courts. Godin asked point blank if Fraser considered Air Canada's services on for- eign f lights "a lack of respect for official languages?" "We learned from the Supreme Court this morning that it has had it with ex- cuses" from Air Canada, said Godin. Fraser shot back: "I repeat, I am very disappointed and I've got a meeting with the deputy minister." The ruling and the parliamentary inci- dent make it clear that the gaps in bilingual services are more widespread than many people would have thought. LT uRichard Cleroux is a freelance reporter and columnist on Parliament Hill. His e- mail address is richardcleroux@rogers. com . ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. 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. 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The appeal court's findings suggest potential problems when it comes to the reliability of some of the evidence used in and the treatment of expert testimony in these types of cases. The province has certainly acted on many of Goudge's suggestions, including his call to boost legal aid funding for defence experts in criminal cases, but it seems problems may still persist in some areas. Is this a systemic issue or is it a one-off situation? Given the stakes, the province should undertake a review of the approach used by Motherisk and the court cases involving the program and, if necessary, con- sider the systemic issues raised by the findings. — Glenn Kauth I The Hill Richard Cleroux S

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