Supreme Court

Criminal Law

Evidence of two experts was subjected to materially different levels of scrutiny

Sexual assault

Accused was convicted of sexual assault. Majority of appellate court concluded that there was no basis for overturning accused’s conviction. Accused appealed. Appeal allowed. Because new trial had to be ordered, court did not need to finally decide whether impugned evidence of Crown’s DNA expert as to source of complainant’s DNA, found on accused’s penis, was or was not admissible. Assuming impugned evidence of Crown’s DNA expert was admissible, it was challenged by defence DNA expert as being speculative, and without any scientific foundation. On its face, there was no way of telling whether it was speculative, scientific or somewhere in between, and defence counsel did not explore this in cross-examination. Even though neither Crown nor defence counsel referred to impugned evidence in their closing addresses, trial judge accepted it at face value, without subjecting it to any scrutiny, and used it as important piece of evidence in finding accused guilty. At same time, trial judge subjected testimony of defence DNA expert to intense scrutiny. Materially different levels of scrutiny to which evidence of two experts was subjected was unwarranted, and it tended to shift burden of proof onto accused. Given importance that trial judge placed on impugned evidence in finding accused guilty, it could not be said that verdict would necessarily have been same had she not done so. Conviction was quashed, and new trial was ordered.

R. v. Awer (2017), 2017 CarswellAlta 47, 2017 CarswellAlta 48, 2017 SCC 2, 2017 CSC 2, Moldaver J., Karakatsanis J., Wagner J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellAlta 827, 2016 ABCA 128, Ronald Berger J.A., Jack Watson J.A., and Frederica Schutz J.A. (Alta. C.A.).

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