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LEGAL REPORT: FORENSICS and not bites from an attack by a pit bull. Smith was wrong. Several experts who later reviewed the case determined it was a dog, and not the girl's mother, who was responsible for the death. The case wasn't the only instance in Purchase 5 or more subscriptions for your law fi rm to Law Times or Canadian Lawyer and save 10% Purchase 20 or more and save 15% BONUS Receive the Digital Editons FREE with each paid subscription which Smith made critical errors, a fact that makes his story a textbook case on the potential pitfalls of using expert wit- nesses. "The expert must be aware of the limits of his or her expertise, stay within them, and not exaggerate them to the court," Ontario Court of Appeal Justice Stephen Goudge wrote in his recent re- port on Ontario's pedi- atric forensic patholo- gy system. By ignoring that standard, Smith "violated a cardinal rule of scientific expertise," noted the judge, who recently wrapped up a one-year-plus public inquiry sparked by the pathologist's work. For defence lawyers, describes as a dearth of people with spe- cialized knowledge of pediatric forensic pathology in Canada — the revelations about Smith mean that's no longer the case. Now, despite the costs, he argues counsel for the accused will have to find an expert to give an independent opin- ion. "You sometimes have to go [to] the States to get them, and it's going to be expensive but it's necessary. They did it wrong for so long, and I'm not taking anything for granted." Goudge himself, while slamming 1 Year $65.00 + gst 2 Year $105.00 + gst go online at www.canadianlawyermag.com 1 Year $135.00 + gst go online at www.lawtimesnews.com or call 1-888-743-3551 Special rates for students and international subscribers. 50 NO VEMBER / DECEMBER 2008 www. L_subscription.indd 1 11/3/08 11:34:20 AM the shocking revela- tions from the inquiry highlight the need for counsel to take a more skeptical eye to expert witnesses. "It's obvious that it's critical that in every case where the Crown has called an expert witness we have our own expert that is reviewing what the Crown witness is say- ing," says Mark Ertel, an Ottawa defence lawyer who is calling for a review of the work of another Ontario pathologist, Dr. Brian Johnston. Particularly distressing about Smith was what Ertel describes as his role as a "hired gun" for the Crown. "In fact, he was on a mission to convict the ac- cused," he says. "Even though these bodies were supposed to be impartial and fair, we now know that the person responsible for all these people going to jail was not even trying to be impartial and fair." But while Ertel says defence lawyers in the past may have felt swayed by such experts — especially given what Goudge mag.com called an expert witness we have our own expert that is reviewing what the Crown witness is saying." — MARK ERTEL it's critical that in every case where the Crown has "It's obvious that Smith and his superiors for allowing his harmful work practices to go unchecked for years, acknowledged in his report the im- portance of defence lawyers in prevent- ing people from being wrongfully accused or convicted in child deaths. In particular, he recommended that the government and Legal Aid Ontario tighten up the rules on who can take on serious cases such as child homi- cides. At the same time, he suggested increased training for both pros- ecutors and defence counsel on forensic pa- thology as well as more legal aid funding for the accused, including money to hire experts. But Alan Young, a criminal law ex- pert at Osgoode Hall Law School in Toronto, argues the fallibility of expert witnesses revealed by the inquiry calls out for more radical change. Bolstering the power of defence lawyers to present expert evidence, he says, would only en- trench what made Smith's testimony so dangerous: the tendency of experts to become biased towards the side they're speaking for. A better system would see the creation of a list of supposedly neutral specialists from which the courts — or the lawyers themselves through negotiation — could appoint an expert, Young says. "That will enhance the truth-seeking function of FIRM UP!