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w w w . c a n a d i a n l a w y e r m a g . c o m O C T O B E R 2 0 1 8 53 performed by computers, but its popularity in police crime labs is changing that. However, she says, "No one's tested it to see how often it's accurate." Much forensic science has little scientific foundation, Pakosh says. And while it's been argued that cognitive bias can be elimi- nated by using computers, "somebody still has to program all that and decide what should be compared," she says. "I'm just naturally a bit skeptical." Emerging issues Gruspier has similar concerns regarding fallibility with the so-called portable police lab and black box technology that are starting to be used at crime scenes. While it's possible to run DNA through a black box — which will conduct a test and allow police to make an arrest on the spot — it is still a technology and, therefore, fallible, and even the DNA can be wrong, she says. "I'm the DNA co-ordinator for a death investigation sys- tem," Gruspier says. "I have to look at a probability number I get [from testing teeth, for example] to determine the match. If police are just throwing something into a black box . . . that whole interpretation part is gone." Pattern evidence — any markings produced when one object contacts another, such as fingerprints, bite marks, shoe prints and tool marks — is also problematic, Gruspier says, noting that individuals are on death row and have even been wrongly executed in the U.S. based on bite marks, to which a dentist will testify. "We're still struggling with the foundations of forensic sci- ence that have been accepted in our courts," she says. Privacy is also an issue as it concerns DNA evidence. The DNA Identification Act doesn't allow for familial searching in the national DNA databank, says Pakosh (who stressed that views expressed were her own and not those of the Ontario Ministry of the Attorney General). "All of a sudden, now, there are public genealogy databases," she says, such as the one that led to the arrest of DeAngelo. While there are benefits to familial DNA searching — it can help identify suspects and solve cold cases, especially involving serial offences — the potential use of these public genealogy databases as an investigatory technique would mean that DNA samples would be collected in a manner currently outside the scope of the DNA Identification Act and the Criminal Code. Before the courts Courts have long sought certainty, and "in an effort to increase the level of certainty, we've often turned to forensic science to guide us," says Jonathan Shime, a criminal defence lawyer at Cooper Sandler Shime and Bergman LLP in Toronto. "It's a noble effort, but the end result has been mixed, to say the least," says Shime, who served as a staff lawyer to Goudge on the Inquiry into Pediatric Forensic Pathology in Ontario and whose partner Mark Sandler was the commissioned counsel. Although he agrees that there have been developments in forensic science from which the justice system has benefited, with DNA evidence being the most obvious, "The flip side is we have too easily been taken in, believing that forensic science . . . allows for greater certainty than reality would suggest," he says. Shime notes that high-profile cases of wrongful convictions in Canada that have been predicated on forensic science, such as the stomach contents evidence used to convict a young Steven Truscott of rape and murder in 1959 and the hair analysis used as evidence in Guy Paul Morin's conviction for murder in 1992. (Improvements in DNA testing would exonerate Morin three years later.) "The lesson [for] all of us in the justice system, whether you're a defence lawyer, a Crown or a judge, is we need to be more diligent in how we think about what is 'forensic evidence,'" says Shime. When Gruspier testifies in criminal proceedings, she says, she is often asked about her bias. That's important; but the ques- tion she isn't asked is, "What is fallible in your evidence?" And that may be the most important question to ask forensic witnesses. Lawyers should always meet with experts before they get to court, notes Shime. "If you only have one minute to meet with them, [the question] should be 'What are the limitations of your opinion?'" In short, the justice system's challenge "is going to be to learn how best to evaluate what is offered as expert evidence," says Goudge. A decade after his public inquiry concluded, there were serious problems with the way suspicious deaths involving chil- dren were handled in Ontario. "Is it reliable or not?" L E G A L R E P O R T GET INSTANT ACCESS TO YOUR LEGAL COMMUNITY 2019 BRITISH COLUMBIA LEGAL TELEPHONE DIRECTORY Includes British Columbia, Northwest Territories, Nunavut and Yukon British Columbia's vast legal community is readily available giving you instant access to more than 11,000 lawyers and law offices. Order your copy today! Visit www.store.thomsonreuters.ca or call 1.800.387.5164 for a 30-day no risk evaluation. Spiralbound • October 2018 • $50.50* Order No. L7798-8404 ISBN 978-0-7798-8404-9 Multiple copy discounts available *Plus applicable taxes and shipping & handling. Prices subject to change without notice. ntitled-4 1 2018-09-19 11:16 AM

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