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Editorial: More doubts about evidence, experts

Six years after former Ontario Court of Appeal justice Stephen Goudge found serious problems with the province’s pediatric 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 conclusions 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 recommendations 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 challenging 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 expert, the appeal court quashed the conviction on the two counts. “The trial judge made her decision unaware of the genuine controversy among the experts about the use of the testing methods relied upon by the Crown expert at trial to found a conclusion of chronic cocaine ingestion, thus, its administration by Ms. Broomfield,” the appeal court found.

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, consider the systemic issues raised by the findings.

Glenn Kauth

  • M Pat
    PLEASE READ RECENT TORONTO STAR ARTICLES REGARDING MOTHERISK HAIRSTRAND TESTING.
  • brian francis
    Bad expert evidence is as common as dirt in the Ontario civil justice (personal injury context). Shoddy medico-legal assessments and rogue insurer experts has been a frequent topic in the mainstream press over the last few years (see especially Alan Shanoff's Toronto Sun columns). Why is it that the law magazines are so quick to jump all over instances of shoddy expert evidence in the criminal justice context - yet happily ignore ubiquitous substandard evidence proffered by the rogue experts who flourish in Ontario's civil justice context? It is true that inept and/corrupt experts in the criminal justice system can cause great harm. But being a brain injured auto accident victim who is wrongfully painted by a biased and/or unqualified insurer medical expert is no cakewalk. Why does Law Time cover only the former and ignore the latter?
  • Mike S
    Bad expert evidence is so common because of willfully blind presumption by the courts in CAS cases in Ontario and elsewhere. Even when a court criticizes the work of a CAS doctor, the court refuses to prohibit further use of an expert witness who can easily mislead other courts and violate the Statutory Interests of children under the CFSA. As a result, CASs use lists of Drs almost all with serious deficits that are withheld from subsequent courts and parents. In 2011 forum poster no_ethics_at_CAS was the first to find and post names and cases of CAS doctors with negative decisions. So far over 15 drs and 25+ decisions have been found. Learn more at www.canadacourtwatch.org

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