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LEGAL REPOR T: LITIGATION It's up to the lawyers, not judges, to do due diligence on prior adverse judicial comment about experts in their cases, not only for the client's sake but also for the administration of justice. BY HEL EN BURNE T T-NICHOLS an expert witness in criminal cases, fol- lowing the 2008 Inquiry into Pediatric Forensic Pathology and the cases involv- ing the discredited evidence of Dr. Charles Smith. Across the board, however, mem- bers of the profession say it is ultimately up to counsel to do their due diligence to bring any type of negative comment forward for a judge's consideration. In his final report for the inquiry — which assessed the policies, procedures, and accountability of pediatric forensic pathology in Ontario between 1981 and 2001 — Justice Stephen Goudge wrote that a 1991 case where the trial judge strongly criticized Smith, an expert pediatric foren- sic pathology witness, for both his meth- odology and conclusions, "raised a danger signal about Dr. Smith's competence and professionalism. Unfortunately that signal was ignored, and any opportunity for re- evaluation of Dr. Smith's work was lost." During the inquiry, the Ontario Ministry of the Attorney General, Criminal Law Division noted it was developing a mandatory dual reporting process for prosecuting Crowns where there is an Weeding out the bad apples i n Ontario, initiatives are being put in place to facilitate bringing forward prior adverse judicial comments about adverse judicial comment regarding a pediatric forensic pathology expert wit- ness, a move endorsed by Goudge in his report. A spokesperson for the AG's office says the initiatives presented at the inquiry are being implemented. "Had such a mechanism been in place during Dr. Smith's years, perhaps such reports would have alerted Crown officials at an early stage to judicial concerns about his work," said Goudge's report. While initiatives to report adverse judi- cial comment have been in place at the Centre of Forensic Sciences for some time, stemming from findings at the Guy Paul Morin inquiry, the scope has broadened following Goudge's report, says Joseph Di Luca, a vice president of the Criminal Lawyers' Association. "Certainly, the light switch has gone on, and I would imagine that if anyone had an expert who received that sort of commentary, something might be done about it," he says. Di Luca says defence counsel have some responsibility to bring adverse judicial comment forward, but adds the Crown is better positioned from a systemic perspec- tive to catch and catalogue it. Ultimately, reporting adverse judicial comment needs to become a formalized process. "I can see a stage where at some point, as part and parcel of a disclosure package on an expert in a case, the Crown might be obligated to disclose information they have relating to their expert that might be relevant to that person's capacity as a witness," he says. In the meantime, one thing the inquiry did teach the profession is that this issue will always be a work in progress, in that scientific knowledge and expertise never remain static. "In that sense, I don't think we'll ever be done, but certainly as a result of the Goudge inquiry, we've taken sort of concrete steps towards having an aware- ness of the fallibility of the science, and moreover, an awareness of the fallibility of the mechanism we use to deliver that sci- ence to a courtroom, which is the expert witness," he says. Meanwhile, in the civil justice system, there are examples of judges' scathing remarks about a particular expert and that same expert pops up in another case and is accepted by the judge, says Robin Harper, a Vancouver lawyer with Dives Grauer & Harper, who recently wrote a paper on selecting experts. In these types of cases, either an expert may not be mak- ing the same mistakes as the last time, or counsel may not be doing the cross- www. C ANAD i AN law ye rmag.com APRIL 2010 43 JACQUI OAKLEY