Canada should follow Australia in requiring more than DNA proof: Binnie

The Canadian criminal justice system should move away from the idea that DNA evidence stands on its own to prove guilt, according to former Supreme Court justice Ian Binnie.

“DNA has taken on this magic and there are so many wrongful convictions that have not only been exposed by DNA but which have been inflicted by DNA,” said Binnie during a discussion panel on the evidence revolution in Canada last week at the Canadian Institute for the Administration of Justice’s annual conference held in Toronto.

The reliance on genetic proof ignores many possibilities that would make a piece of evidence questionable, said Binnie, who gave the example of a mix-up of samples at a laboratory.

Canada should follow Australia’s lead by introducing a provision that says DNA proof is conclusive only in the presence of other corroborative evidence pointing to the same truth, according to Binnie.

“It seems to me there’s a real credibility issue the courts have to face up to. The judges have the tools to do that,” he said, noting the courts must also be more aggressive in assessing whether expert witnesses are going beyond the scope of their expertise.

Binnie said the whole issue of understanding expert evidence is an area where he feels the courts “need to up their game.” When it comes to complex evidence, some litigants feel the courts don’t fully understand what they’re hearing, he said.

The issue isn’t exclusive to criminal law, he added. “In the broader community of litigants who are getting feedback from lawyers, there is a concern that the judges just don’t get it,” he said, referring to areas such as intellectual property and financial instruments.

“That is in part driving us toward alternative dispute resolution and away from the court. And I think it is a problem because the jurisprudence is drying up because so much gets decided outside of the courts. It’s important that the jurisprudence be developed and it can only be done if the courts . . . are deciding these cases.”

Binnie, Osgoode Hall Law School professor Benjamin Berger, and former British Columbia Supreme Court justice Lynn Smith also talked about a trend that shows the courts are increasingly favouring expert evidence against judicial notice. Smith, who moderated the discussion, asked Binnie and Berger about the effect on access to justice as the courts move toward expert evidence instead of deeming some facts to be well-known and indisputable.

The trend poses a concern for access to justice as litigation becomes more costly and takes longer to play out when expert evidence is a necessity, said Berger.
But the caution against taking some facts for granted, especially when it comes to sexual violence cases, isn’t unwarranted, he added.

If he could choose one change to the evidence of law in Canada, Berger said it would be in the law dealing with privilege. He spoke about a lack of privilege in Canada to protect “therapeutic and psychiatric conversations.”

It’s an area where Berger said he would like to see the principles of evidence “tempered a little bit” to offer more flexibility in line with people’s realities.

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