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LEGAL REPORT: FORENSICS be able to say, this is my degree in pedi- atric pathology, rather than, this is my experience in pediatric pathology. That's like years away." However, the Royal Col- lege of Physicians and Surgeons has said it is currently developing a program to certify forensic pathologists in Canada. Until that happens, Lutz says, in cer- tain murder cases, with so much at stake, lawyers might choose to avoid putting a client's fate before a jury. "My recom- CA007 4/9/08 10:00 AM Page 1 mendation, having seen what has gone on in the past, is lawyers would be wise to, whenever possible, choose the judge- alone option." Richard Fowler, a partner at Vancou- ver's Gibbons Fowler Nathanson, wants to see forensic pathology become not only specialized but also completely in- dependent. "Instead of witnesses for the Crown or defence, they should be wit- nesses for the court, and that should be their attitude — that they are objective scientists and not witnesses called by one particular party," he says, acknowledg- ing a similar recommendation emerged from Kaufman's report in Morin's wrongful conviction. Fowler, who acted as lead counsel for an accused in the Air India case and suc- cessfully defended former B.C. premier Glen Clark on fraud charges, took par- ticular note of Smith's testimony during the inquiry, if only to marvel at the ex- tent of his dishonesty. "Smith is in one sense an isolated case," Fowler says, "but if that ever happens again, are we going to have a system to catch that?" He suggests it'd be practical, and like- ly inexpensive, for respective jurisdic- tions across Canada to contribute to a database of experts and their testimony. "Right now it's up to individual lawyers to hunt around and say, hey, have you heard of this doctor and has he testified before?" A database would let a lawyer see patterns in a theory or determine if an expert works too closely with police. "A personal concern that I have is that I think the police play far too active a role during the autopsy," he says. "They're usually present; they usually share with the forensic pathologist their theory of what has taken place so far. And so the pathologists' reports are either con- sciously or subconsciously tailored to what it is the police say their theory of the case is. That is a problem because a pathologist's report has to be completely objective to be of any use to anyone." Indeed, the notion of separating infor- www.canadalawbook.ca 56 M AY 2008 www. C ANADIAN mag.com mation provided by police with forensic pathologists involved in a case is one of the recommendations being submitted to the Goudge inquiry by the Criminal Lawyers' Association. More specifically, the association is calling for all informa- tion provided to forensic pathologists to be formally documented and provided to the defence. "In our view, if they are going to get extraneous information, it should be all properly documented," says Mara Greene, one of four lawyers who testified at the inquiry on behalf of the CLA. "We all recognize there is this thing called confirmation bias." Greene says that, while the chief foren- sic pathologist of Ontario, Dr. Michael